TALLAHASSEE, Fla. - An appeals court Thursday refused to scuttle drug-related charges against a student who lived in a Florida State University dormitory where a police officer responded in 2016 because of a complaint about loud music and “marijuana fumes wafting,” as one judge described it.
The case centered on arguments that the student, identified as S.S. because he was a 17-year-old minor at the time, was not responsible for marijuana found in a mason jar in a common area of the townhouse-style dorm unit.
A roommate testified that S.S. had not used the marijuana.
The police officer said five young men were in the townhouse when she responded. S.S. was charged with possession of cannabis and paraphernalia but sought to have the charges dismissed.
A Leon County circuit judge rejected the request and found S.S guilty of the charges but withheld adjudication of delinquency and sentenced S.S. to three months of probation.
A three-judge panel of the 1st District Court of Appeal on Thursday agreed with the refusal to dismiss the charges.
Appeals-court Judge Scott Makar wrote an 11-page concurring opinion, concluding that S.S. could be subject to a “constructive possession charge” because he was in a common area of the townhouse where the marijuana was in plain view.
“An otherwise blameless dormmate --- whose only transgression is being present when contraband is found in a common area of a living room, dining area, or kitchen --- can be swept into the same category as those actually using or possessing the illegal items, leaving the fact-finder (circuit judge) much discretion to decide guilt versus innocence,” Makar wrote.
“Applied here, a fact-finder could conclude that S.S. was present during the marijuana festivities in the common area of the townhouse but lacked control over the situation and the raucous partiers in his midst; he was in the wrong place at the wrong time, having nothing to do with those raising Cain,” Makar wrote. “A fact-finder could just as readily find S.S. to have constructive possession of the contraband, as the trial judge did, notwithstanding the testimony to the contrary by S.S.’s roommate, which may have been disbelieved. Either outcome would be permissible on this record, even if one more closely approximates the truth.”
News Service of Florida