FL3: No PC for arrest of person closest to the drugs without knowing his relation to the property

There was no probable cause to arrest defendant just because he was the one nearest to the drugs when the police came in. There was no consideration of his relationship to the premises in the face of the law of constructive possession. J.J. v. State, 2020 Fla. App. LEXIS 3486 (Fla. 3d DCA Mar. 18, 2020):

In like fashion, the officers in the instant case conducted no investigation to develop probable cause before arresting J.J., the person closest in proximity to the stovetop. We can find no reported Florida case (nor any from the United States Supreme Court) that extends Pringle to find probable cause for an arrest and search of a person in the room of a private residence, where he is one of several people in that room (and the only juvenile), his status in the premises is unknown, but he happens to be closest in proximity to suspected drugs and drug paraphernalia. We decline the state’s invitation (and the dissent’s entreaty) to extend the holding in Pringle to the circumstances presented here.

Our conclusion is buttressed not only by the officer’s failure to conduct any particularized inquiry prior to arresting and searching J.J., but also by the related failure of the state to establish J.J.’s status in the residence—whether as a resident, guest, invitee, visitor, or merely the son accompanying an adult resident, guest, invitee or visitor. This Court and our sister courts have recognized the important distinction between a resident of premises containing contraband and a mere visitor to such premises. See, e.g., Johnson v. State, 456 So. 2d 923, 924 (Fla. 3d DCA 1984) (“Mere proximity to contraband, without more, is legally insufficient to prove possession. In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view.”); Torres, 520 So. 2d at 80 (holding that where “contraband is found on premises which are under joint rather than exclusive possession of a defendant, ‘knowledge of the contraband’s presence and the ability to control it will not be inferred, but must be established by independent proof'”); Bennett, 46 So. 3d at 1184 (“Mere proximity to contraband is not enough. Therefore, the fact that contraband was in the defendant’s plain view does not support an inference that the defendant had control over it unless the defendant had control over the premises.”)

Update: set aside and affirmed en banc: J.J. v. State, 2020 Fla. App. LEXIS 10750 (Fla. 3d DCA July 29, 2020), posted July 30, 2020.