The standard for probable cause is not high, and it isn’t even a preponderance of the evidence. Thus, the substantive law of constructive possession on who is where in relation to the evidence seized doesn’t govern arrest. J.J. v. State, 2020 Fla. App. LEXIS 10750 (Fla. 3d DCA July 29, 2020) (en banc) (rejecting J.J. v. State, 2020 Fla. App. LEXIS 3486 (Fla. 3d DCA Mar. 18, 2020)):
A case remarkably like the instant case is United States v. Holder, 990 F.2d 1327 (D.C. Cir. 1993). In Holder, the defendant appealed his conviction contending the trial court erred in failing to grant his motion to suppress cocaine and a firearm found as a result of a search incident to arrest. Id. at 1327-28. The police entered an apartment and found another individual seated at a table containing, and set up to process, crack cocaine. Id. The defendant was standing a few feet away in a nearby hallway. Id. There was no evidence that the defendant was touching or had touched the cocaine. Id. at 1327-29. On these facts, the defendant argued, (as the defendant does here) the police lacked probable cause particularized as to him regarding possession because “there was no indication that [the defendant] rented the apartment, lived in it, or was in any way connected to it beyond his presence at the time of the search.” Id. at 1329. The Court rejected this argument. Id. at 1329-30.
The Court first noted that access to a private apartment “is presumably limited, and thus a person’s admission to the apartment normally would raise a stronger inference of connection to the activities conducted within.” Id. at 1329. Moreover, the Court reasoned, “the drugs were openly on display, and therefore appellant’s proximity to the drugs clearly reflected his knowledge of, and probably his involvement in, narcotics activity.” Id. This was true because “[e]ven if the drugs were not [the defendant’s] and instead belonged only to [the other occupant], the circumstances indicated that [the other occupant] trusted [the defendant] and considered him sufficiently complicit to allow him a full view of the drug distribution scene.” Id. “Although [the defendant] may be correct that mere presence in an apartment where drugs are found will not, without more, support a conviction for possession, the standards required for proof of possession beyond a reasonable doubt and for probable cause for an arrest are quite different.” Id. (emphases added) (citations omitted). “That he was present, for whatever reason, when the drugs were in plain view … amply satisfies probable cause.” Id.
The reasoning of Holder applies with particular force here. J.J. was both physically closer to the drugs than the defendant in Holder and J.J. was closer to the drugs than any other occupant, where the defendant in Holder was further away than the other occupant. Like Holder, the fact that the cocaine processing operation was taking place in a room in the privacy of a house enhances the probability that only trusted members of the operation had access. Also, like Holder, the fact that the drug operation was openly on display, enhances the probability that J.J. had both knowledge of and some participation in the operation. And, finally, like Holder, although these circumstances may not, without more, support a conviction for possession, “the standards required for proof of possession beyond a reasonable doubt and for probable cause for an arrest are quite different.” Id.