Intent – the subjective decision to commit a crime – is a key element that the prosecution must prove in order to convict a criminal defendant of most offenses under Florida criminal law. One major exception lies in Florida’s drug possession laws which generally presume that a person found in possession of illegal drugs knew that what he or she was possessing was in fact a controlled substance. The Fifth District Court of Appeal’s recent decision in Carreras v. State explains the ongoing debate as to whether this presumption is constitutional.
Appellant Arthur Carreras was arrested and charged with possession of twenty grams or less of marijuana after an incident in which the side mirror of the car he was driving took a turn too close and swiped the exterior mirror of a police patrol car driving in the opposite direction. The police officer driving the car testified at trial that he saw Carerras driving the vehicle and an unidentified black male in the passenger seat. The officer turned around to follow the car and observed objects being thrown out of both the driver and passenger side windows when he turned on the patrol car’s emergency lights.
While the first police officer was effecting a traffic stop on Carreras’ car, a second officer who had been following the patrol car and also noticed objects thrown from both sides of Carreras’ vehicle stopped an retrieved the objects. The objects were two bags which field tested positive for marijuana.
Despite arguing that he didn’t know that the bags contained marijuana, Carreras was convicted under Section 893.13, Florida Statutes, which makes it “unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance,” including marijuana (cannibas). Possession of twenty grams or less of marijuana is a first degree misdemeanor under the law.
Section 893.101, furthermore, provides that although a person charged with drug possession can assert an affirmative defense claiming that he or she did not know that the substance in his or her possession was an illegal drug, “the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance.”
On appeal, the Fifth District rejected Carreras’ argument that Section 893.13 is unconstitutional. In Shelton v. Secretary, Dep’t of Corrections, the District Court for the Middle District of Florida last year ruled that Section 893.13 is unconstitutional because it doesn’t require the state to prove intent – that the accused knew he or she was possessing illegal drugs. One month later, a state court judge in Miami sided with the federal court, ruling in a consolidated case concerning 39 defendants charged with drug possession that prosecution under Section 893.13 is subject to dismissal on constitutional grounds.
Citing the First District’s 2011 decision in Flagg v. State, however, the court noted that it has “already rejected the reasoning of the Shelton case.” In Flagg, the First District rejected the same argument raised by Carreras, finding that the Shelton decision was not binding on the court (because it was rendered by a federal court) and that it nevertheless “misperceives the operation of the affirmative defense in section 893.101.” Specifically, the First District ruled that the statute does not require a defendant to establish innocence by proving a lack of knowledge, but instead provides that – in cases where a defendant raises the knowledge defense – “the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs.”
Although the question is currently before the Florida Supreme Court in State v. Adkins, the court affirmed Carreras’ conviction based on the Flagg ruling.
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