Tools For Your Toolbox: Sample of Motion Used in Miami

Last Wednesday, August 17, 2011 a Miami Judge dismissed 39 drug charges, finding Florida’s drug possession law facially unconstitutional. The ruling follows an earlier ruling by a federal district court judge reaching the same conclusion.

Below is a sample motion similar to the one used in Miami, which can be filed in any drug possession case.




The Defendant, pursuant to Florida Rule of Criminal Procedure 3.190(b), moves this Honorable Court to dismiss the charge(s) brought under Section 893.13(6), Florida Statutes, as facially unconstitutional because Section 893.101, Florida Statutes, removes the mens rea requirement from this law in violation of the due process clauses of the State and Federal Constitutions. See U.S. Const. amend. V, XIV; Art. I, §9, Fla. Const. The grounds for this motion are as follows:
The state has charged the defendant with possession of a controlled substance in violation of Section 893.13(6), Florida Statutes.
Section 893.13(6), Florida Statutes, contains no mens rea element. Instead it states: “It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription . . . .” Violation of this statute is a felony punishable by up to five years in state prison. § 775.082(3)(d), Fla. Stat. Defendants classified as “habitual violent felony offenders” are subject to ten years in prison. See § 775.084(1)(b), (4)(b), Fla. Stat. Additionally, a defendant convicted of a violation of Section 893.13(6) faces the loss of driving privileges, the loss of the right to vote and limitations on the defendant’s ability to obtain certain housing and employment.
In a reaction to Chicone v. State, 684 So. 2d 736 (Fla. 1996), and Scott v. State, 808 So. 2d 166 (Fla. 2002), holding that “the State was required to prove that [the defendant] knew of the illicit nature of the items in his possession,” 684 So. 2d at 744, the Florida Legislature enacted section 893.101(2), Florida Statutes, which “finds that knowledge of the illicit nature of a controlled substances is not an element of any offense under this chapter.”
Generally, the legislature can define crimes, “[b]ut there are obviously constitutional limits beyond which the States may not go in this regard.” Patterson v. New York, 432 U.S. 197, 210 (1977). One of the most basic requirements of due process is notice. See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313. Within the criminal law, notice is referred to as the mens rea requirement of knowledge. See generally Anderson v. State, 48 So. 3d 1015, 1016 n.1 (Fla. 5th DCA 2010) (equating knowledge and notice). Requiring mens rea is fundamental to the criminal law. Morissette v. U.S., 342 U.S.246, 250 (1952) (requiring mens rea “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”).
In the absence of a legislative pronouncement, courts will imply a mens rea requirement of knowledge. See, e.g., Staples v. United States, 511 U.S. 600, 605-06 (1994); United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978); Chicone v. State, 684 So. 2d 736 (Fla. 1996); and Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967). The reason is that “the requirement of guilty knowledge ‘must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge.’” Chicone, 684 So. 2d at 743 (quoting Frank v. State, supra at 121). The Frank opinion goes on to say: “It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our citizens may be preserved.” 119 So. 2d at 121 (quoted with approval in Chicone, 684 So. 2d at 739).
Florida courts have implied an element requiring the state to prove that the defendant “had knowledge of the presence of the substance” in many crimes created by section 893.13, Florida Statutes. See Fla. Std. Jury Instr. (Crim.) 25.7 (emphasis supplied). Pursuant to section 893.101, Florida Statutes, however, that requirement cannot be that the person knew the substance was an illegal substance; just that the substance was there.
The result is that in Florida, entirely innocent citizens can be guilty of felony drug offenses. Controlled substances often come in pills and powders, looking very similar to too many other innocuous and legal pills and powders. Even the labeling of a bottle of pills or container of powder (Tylenol, talcum powder) does not guarantee that the contents of the bottle or container match the label. Therefore, a citizen’s mere knowledge that they possess a substance does not equate to mens rea of criminal wrongdoing.
As a result, the Florida statute criminalizes the passive action of possessing a controlled substance, even if the person does not know the true nature of the substance. Put another way, Florida law imposes on citizens the affirmative duty to analyze every substance in their possession and determine if any of those substances are in fact controlled substances. The investigation cannot end there, however, because whether the substance is legal or illegal often turns on whether or not there is a valid prescription. Therefore, every person holding prescription medication for someone else (usually a caregiver) must investigate the medical records of the patient to determine the legality of possessing and distributing the medication.
The United States Supreme Court has struck down a law criminalizing passive activity without requiring a showing of mens rea. The case involved a failure to register as someone with a prior felony conviction:
[W]e deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. The rule that ‘ignorance of the law will not excuse’ is deep in our law, as is the principle that of all the powers of local government, the police power is ‘one of the least limitable.’ On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. . . . [T]he principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.

Lambert v. California, 355 U.S. 225, 228 (1957) (citations omitted; emphasis supplied).
The Court then went on to explain that without requiring proof of notice or knowledge, the law was unconstitutional:
Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. . . . Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, ‘A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.’ Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.

Id. at 229-230 (citation omitted; emphasis supplied).
Subsequent case law from the United States Supreme Court has interpreted statutes to include knowledge requirements specifically saying it was doing to “so as to avoid substantial constitutional questions.” United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); see id. at 73 (“[W]e do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court.”). The legislature, by enacting section 893.101, Florida Statutes, however, has explicitly rejected Chicone’s construction that would have saved its constitutionality.
There is an exception in “limited circumstances,” United States Gypsum Co., 438 U.S. at 437, to this constitutional rule for criminal punishments meant to enforce regulatory “public welfare” schemes that first came into being with the Industrial Revolution and the consequent urbanization of society. See Morissette, 342 U.S. at 253-56. The Court has reasoned that if “a defendant knows that he is dealing with a dangerous device of a character that places him in responsible relation to a public danger, he should be alerted to the probability of strict regulation . . . .” Staples, 511 U.S. at 607. In such regulatory schemes, “penalties commonly are relatively small, and conviction does not grave damage to an offender’s reputation.” Morissette, 342 U.S. at 256.
Since Lambert, the Federal Circuits have focused on these characteristics in subsequent cases, but have not always agreed on which characteristic is most important. Most of these cases come under the Migratory Bird Treaty Act, simply because it was one of the few federal criminal statutes without a mens rea element either explicit or implied. One approach is United States v. Wulff, 758 So. 2d 1121 (6th Cir. 1985), which held: “The elimination of the element of criminal intent does not violate the due process clause where (1) the penalty is relatively small, and (2) where conviction does not gravely besmirch.” Id. at 1125. In that case the penalty was a felony with a maximum sentence of up to two years imprisonment, and the loss of civil rights resulting from the felony conviction. Id. The court held that this is not “a relatively small penalty” and upheld the district court’s dismissal of the charge. Id.; see also Staples, 511 U.S. at 618 (“Our characterization of the public welfare offense in Morissette hardly seems apt, however, for a crime that is a felony . . . .”); United States v. Apollo Energies, Inc., 611 F.3d 679, 688 (10th Cir. 2010) (“due process suggests some constitutional limits on the penalties contained in strict liability crimes. Severe fines and jail time would warrant a state of mind requirement.”).
Under this approach, Florida exacts a severe penalty for drug possession. No one should have to face five years in state prison and a felony conviction with the attendant loss of civil rights for innocently possessing what turned out to be a controlled substance.
The alternative approach is found in United States v. Engler, 806 F.2d 425 (3d Cir. 1986). That court refused to focus on the penalty provided, id. at 433-35, but instead focused on whether the person was engaged in the type of activity that would have given them notice:
Strict liability for omissions which are not “per se blameworthy” may violate due process because such derelictions are unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. By contrast, due process is not violated by the imposition of strict liability as part of a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that [the prohibited conduct] is not an innocent act.

Id. at 435 (emphasis in original; citations and quotations omitted).
Without an illicit knowledge element, nothing alerts the average citizen that they may be in violation of this law. For instance, the Florida statute criminalizes the couple who do not recognize that the tropical plant growing in their backyard is a marijuana plant that crossed the fence from the neighbor’s backyard. Similarly, the Florida statute criminalizes the grandmother who does not realize that that last time her wayward grandson came over to visit, he emptied her can of baking powder and replaced it with cocaine or some other illicit drug that comes in a white powder. In both cases, the citizens would know they possessed the substance (the backyard plant, the can of baking powder), but not its illicit nature. This is exactly the type of punishment of innocent behavior that the constitution does not tolerate.
Florida law is actually worse than the above scenarios indicate because the citizen need not even have actual knowledge that they possess the substance. The courts have created a presumption that “if a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.” Fla. Std. Jury Instr. (Crim.) 25.7. Therefore, a homeowner is presumed to know everything they have in their home. Most people could not begin to provide such an inventory. Therefore, if the wayward grandson in the above example simply placed a box containing drugs on the top shelf of his grandmother’s kitchen cupboard, a shelf that the grandmother cannot reach and has not used for years, the jury is told that it can assume that the grandmother knew of the box because she is in exclusive possession of the house. Similarly, a homeowner is criminally liable if a guest accidently (or deliberately) leaves behind a baggie of cocaine between the sofa cushions, even if homeowner never lifts the cushions and discovers the baggie.
Exclusive possession of property is normal in American society. Nothing about that activity alerts the property owners that they may be criminally liable if a substance that either they did not know was on their property, or did not know was a controlled substance, turns out to be illegal drugs.
The two approaches above need not be exclusive, and a federal district judge has recently used an amalgam of these approaches to hold that Florida’s drug possession laws were unconstitutional, because they have severe penalties, create social stigma, and the activity prohibited was not so inherently dangerous that citizens would expect heightened regulation. Shelton v. Secretary, Department of Corrections, 2011 WL 3236040, at *5-*12 (M.D. Fla. July 27, 2011).
The state may argue that the fact that section 893.101(3), Florida Statutes, makes lack of knowledge of the illicit nature of the substance an affirmative defense solves the problem. It does not. The state cannot shift the burden of proof to a defendant to disprove a necessary element of the crime. See In re Winship, 397 U.S. 358, 364 (1970) (“the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); State v. Cohen, 568 So. 2d 49 (Fla. 1990) (finding affirmative defense unconstitutional because “this ‘affirmative defense’ does not concede the offense; it negates it. In effect, this statute requires the defendant to present a preponderance of evidence that in effect says, ‘I did not do it.’”).
Nor can the state take solace in the courts that have, to date, upheld section 893.101, Florida Statutes, against constitutional challenges. There are really only two decisions of substance, and they both started from the premise that the Legislature can define the elements of a statute anyway it wishes, citing dicta from Chicone to that effect. Wright v. State, 920 So. 2d 21, 23-24 (Fla. 4th DCA 2005) (“The legislature is vested with broad authority to determine intent requirements in defining crimes. The applicable test is the rational basis standard of review.”) (citation omitted); Burnette v. State, 901 So. 2d 925, 927 (Fla. 2d DCA 2005) (“However, it is the prerogative of the legislature to define the elements of a crime and to determine whether scienter is an essential element of a statutory crime.”); see also Williams v. State, 45 So. 3d 14, 16 (Fla. 1st DCA 2010) (relying entirely on previous decisions including Wright and Burnette); Taylor v. State, 929 So. 2d 665, 665 (Fla. 3d DCA 2006) (one-paragraph decision relying on other court decisions including Wright and Burnette). None of those decisions addressed the constitutional limitations on the legislature in doing so.
Chicone did not address a situation such as section 893.101, Florida Statutes, where the legislature had explicitly spoken. Chicone, 684 So. 2d at 743 (“There is no such indication of legislative intent to dispense with mens rea here.”). Therefore, the dictum in Chicone is not binding. See, e.g., Lewis v. State, 34 So. 3d 183, 186 (Fla.1st DCA 2010) (“When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case.”). The subsequent DCA decisions relying on that dicta did not address Lambert and the constitutionality of removing mens rea, but instead whether the creation of the affirmative defense impermissibly shifted the burden of proof, assuming that the legislature had the power to define the elements of the crime. Wright, 920 So. 2d at 24 (“Removal of the [mens rea] element, however, is not the crux of Wrights’s challenge.”); Burnette, 901 So. 2d at 927 (“Burnette argues that section 893.101 violates due process by shifting the burden to the defendant to prove that he lacked knowledge of the illicit nature of the substance, thereby relieving the State of its burden to prove each element of the crime beyond a reasonable doubt.”). The issue here challenges the underlying assumption those cases did not address. Prior decisions that do not decide the question at issue are also not binding. See, e.g., Twyman v. Roell, 166 So. 215, 217 (Fla. 1936) (“To be of value as a precedent, the questions raised by the pleadings and adjudicated in the case cited as a precedent must be in point with those presented in the case at bar.”); Benson v. Norwegian Cruise Line Ltd., 859 So. 2d 1213, 1217 (Fla. 3d DCA 2003) (“[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.”) (quoting State ex rel. Helseth v. Du Bose, 128 So. 4, 6 (Fla. 1930)).
A proper challenge to the lack of mens rea in section 893.13(6), Florida Statutes, is now before this Court. That statute is unconstitutional because, without a requirement for the state to prove knowledge of the illicit nature of the substance, it imposes heavy criminal penalties on citizens who are innocently possessing property.
WHEREFORE, the Defendant respectfully requests that this Court dismiss the charge(s) of violating of section 893.13 as facially unconstitutional.

Respectfully submitted,

As always, if arrested in Tampa or in need of more information please visit: or

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