IN THE SUPREME COURT OF FLORIDA

Filing # 19284827 Electronically Filed 10/12/2014 06:34:45 PM RECEIVED, 10/12/2014 18:39:08, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CHRISTOPHER VINCI, Petitioner, v. STATE OF FLORIDA, Respondent. / Case No. SC14-1939 DCA No. 2D13-4638 On Petition for Discretionary Review of the Decision of the Second District Court of Appeal BRIEF OF PETITIONER CHRISTOPHER VINCI ON JURISDICTION Christopher E. Cosden The Wilbur Smith Law Firm Post Office Drawer 8 Fort Myers, Florida 33902 email cosden@att.net Telephone 239-334-7696 Florida Bar No. 813478 Attorney for the Petitioner

TABLE OF CONTENTS Pages Table of Contents i Table of Citations ii Preface 1 Statement of the Case and Facts 1 Argument 5 The order of the Second District Court in this case is in direct conflict with the opinion of this Court in State v. Walker, 461 So. 2d 108 (Fla. 1984). Conclusion 10 Certificate of Service 11 Certificate of Font Compliance 11 ii

TABLE OF CITATIONS CASES Case Pages O Hara v. State 4 964 So. 2d 839 (Fla. 2d DCA 2007) State v. Vinci 1, 5 No. 2D13-4638 (Fla. 2d DCA Sep. 12, 2014) State v. Walker 6, 7, 8, 10 444 So. 2d 1137 (Fla. 2d DCA 1984) State v. Walker ii, 5, 6, 9, 10 461 So. 2d 108 (Fla. 1984) STATUTES AND OTHER AUTHORITIES Authority Pages 499.03 Florida Statutes (2012) 4, 5, 9, 10 893.13(2)(a)7 Florida Statutes (1981) 6, 7, 8 893.13(6)(a) Florida Statutes (2012) 4, 9 Ch. 73-331, Laws of Florida 7 Fla. R. App. P. 9.030(a)(2)(A)(iv) 1 Florida Constitution, Article V, 3(b)(3) 1 iii

PREFACE The instant Petitioner, Christopher Vinci, was the Defendant in a criminal prosecution for possession of controlled substances in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida. R.007. He moved to suppress the controlled substances. R.011-019. That motion was granted by the trial court. R.031; R.107-110. The State of Florida appealed to the Second District Court of Appeal, which reversed the trial court. State v. Vinci, No. 2D13-4638 (Fla. 2d DCA Sep. 12, 2014) (attached as Appendix A). The Petitioner now requests this Court to exercise discretionary conflict review pursuant to Fla. Const. Art. V, 3(b)(3) and Fla. R. App. P. 9.030(a)(2)(A)(iv). To avoid confusion herein, the instant Petitioner (the Defendant in the trial court and the Appellee in the district court), will be referred to by name or as the Defendant; the State of Florida (the Plaintiff in the trial court and the Appellant in the district court) will be referred to as the State of Florida or the State. STATEMENT OF THE CASE AND FACTS On 04 April 2013 a vehicle driven by the Defendant was stopped for suspected impairment. R.001. During the traffic stop, at the officer s request, the Defendant opened the driver s door and stepped from the vehicle. R.001, R.058, lines 5-10. Almost immediately the officer saw a very large pill bottle in 1

the driver s side door pocket. R.059, lines 8-9. The officer testified:... I read the label; it said clearly read [sic] Suboxone and Christopher Vinci, right there. I had already identified him by his Florida driver s license, so I knew that to be him; and I knew that to be his pill bottle. R.060, lines 10-14. In the bottle the officer observed pills which he immediately identified as alprazolam (trade name Xanax). R.062, lines 14-22. Based upon those observations, the officer concluded that the crime of possession of a controlled substance, alprazolam, was being committed. R.064, lines 10-16; R.001. On cross examination the officer testified: R.071, lines 15-21. Q [by counsel for the Defendant] What was it about the pills that led you to believe that they were contraband or illicit in nature? A [by arresting officer] Because, based on my training and experience, I know what Xanax looks like; I ve dealt with it several times. And I saw that the prescription bottles [sic] had Suboxone on it. So. The trial court made the following relevant findings of fact: As [the Defendant] stepped out, [the officer] noticed a large pill bottle in the driver s side pocket. He could actually, he said, see inside the car as Mr. Vinci stepped out. He said he had a spotlight on the car. He testified that it was a large orange pill bottle. And he testified that when the door opened and he looked down into the compartment where the bottle was, 2

he could see the word Suboxone on it and he could see that it was prescribed for a Christopher Vinci, which is obviously the Defendant. And that it was a two milligram dosage. He also testified that when he looked in the bottle, he saw what he believed to be a Xanax bar and a little blue pill. He said he could see it through the side of the bottle. He said he could see the pills inside. And in his mind, the the it was a Xanax bar because of the way it was shaped; and it wasn t Suboxone. Although he said he s familiar with how a Xanax bar looks, he said he was not familiar with what Suboxone looked like. He said he picked up the bottle and he said to the Defendant, Suboxone, and questioned him. Suboxone. And the answer was, there is a Xanax bar, too; I have a script. And according to the officer, he verified that it was Xanax. R.100, line 6 - R.101, line 14. Immediately prior to ruling, the trial court reviewed its findings of fact: There s nothing there s no apparent contraband in the bottle when the officer sees the Xanax bar. And he believes it to be a Xanax bar, not Suboxone. At that point, he doesn t know whether he has a prescription for it or not. He has consent to go in the pocket. He takes out the pill bottle. 3

But he has a seizure when he opens up the pill bottle and he dumps out the pills and he determines that the Suboxone is not Suboxone, that it s oxycodone. He has a seizure of the pill, which is past the parameters of the consent. And he has no reason to believe that tiny little pill in there isn t Suboxone. R.107, line 15 - R.108, line 4 (emphasis added). The trial court cited several cases supporting it s conclusion that you can t seize the items without PC because the nature of the substances were not immediately apparent. R. 109, line 25 - R.110, line 2. The trial court then held: And in this case, the nature of the substances were not immediately apparent when [the officer] opened the bottle, seized the items, started questioning the Defendant, and determined that he did not have a prescription for the Suboxone slash oxycodone. R. 110, lines 3-8 (emphasis added). The District Court of Appeal reversed the trial court, reasoning: Based on the facts as determined by the trial court, the trial court erred in ruling that the incriminating nature of the items in the pill bottle was not immediately apparent to the deputy. The trial court based its conclusion on the fact that the deputy did not know whether Vinci had a prescription for Xanax. However, having a valid prescription is a defense to possession of a controlled substance. See 499.03(1), 893.13(6)(a), Fla. Stat. (2012); O Hara v. State, 964 So. 2d 839, 840-41 (Fla. 2d DCA 2007). Section 499.03(2) further provides that possession of a drug under subsection (1) by any person not exempted under this section, which drug is not properly labeled to indicate that possession is 4

by a valid prescription of a practitioner licensed by law to prescribe such drug, is prima facie evidence that such possession is unlawful. Thus, possession of Xanax in a container that is not for a Xanax prescription provides prima facie evidence that the possession is unlawful. Based on this statute and the testimony the trial court relied upon, the incriminating nature of the white pill was immediately apparent and the deputy had probable cause to seize it. State v. Vinci, No. 2D13-4638 (Fla. 2d DCA Sep. 12, 2014) (emphasis added) (hereinafter slip opinion ), at 4 (attached as Appendix A). Therefore the district court reversed the trial court: Based on section 499.03(2) [Florida Statutes (2012)] and the facts relied upon by the trial court, we determine that the trial court erred as a matter of law in determining that the deputy illegally seized the prescription pill bottle and the pills in it. Thus, the trial court should not have suppressed the evidence. Slip opinion at 5-6. ARGUMENT The order of the Second District Court in this case is in direct conflict with the opinion of this Court in State v. Walker, 461 So. 2d 108 (Fla. 1984). The conclusion of the district court that possession of Xanax in a container that is not for a Xanax prescription provides prima facie evidence that the possession is unlawful is in direct conflict with the opinion of this Court in 5

State v. Walker, 461 So. 2d 108 (Fla. 1984). The district court made no effort to distinguish this Court s rule in Walker, and apparently did not consider it. In Walker, this Court adopt[ed] the opinion of Judge Grimes in State v. Walker, 444 So. 2d 1137 (Fla. 2d DCA 1984). 461 So. 2d at 108. In the district court opinion authored by Judge Grimes, the court considered a constitutional challenge to section 893.13(2)(a) 7, Florida Statutes (1981), which requires that a lawfully dispensed controlled substance must be kept in the container in which it was originally delivered. 444 So. 2d at 1138. In the opinion which was later adopted in its entirety by this Court, the district court recognized that statutes are constitutional where a statute bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive... Since the basic principle of substantive due process is to protect the individual from an abusive exercise of governmental powers, this court has held that legislation must not arbitrarily state that actions which are inherently and generally innocent shall constitute criminal offenses. Id. at 1139. The court held that the legislative objectives of the challenged statute are to (1) eliminate the confusion resulting from the existence of two statutory chapters on drug abuse by combining both into one chapter; (2) create uniformity between federal and state drug laws; and (3) expand the exercise of the state s authority over the manufacture and distribution of dangerous drugs, citing Ch. 73-331, 6

Laws of Florida. The court held that those are reasonable and worthwhile objectives. 444 So. 2d at 1139. The district court explained its reasoning in a quotation from the order of the circuit court: Id. at 1139-40. [T]he statute under attack in the case at bar is inconsistent with the objective of the statutory scheme and cannot be said to bear a fair and substantial relationship to the objective sought. Indeed, 893.13(2)(a)(7) Fla.Stat. (1981) hampers the accomplishment of the legislative objectives. It lends itself to intentional drug abuse in two significant ways. First, one who must consume significant quantities of drugs (i.e. a heart patient) must carry all of them with him during his daily activities, thereby making them easily accessible to many people during the course of the day. Second, compliance requires that those persons who have prescription tranquilizers carry many pills with them in order to take their daily dosage. If the stresses of daily life become to [sic] great it is easy to reduce the stress by consuming excess dosages of the tranquilizers, because they are readily available in the original container which must be carried by the patient. The law also enhances the opportunity for accidental abuse of prescribed drugs in that it prohibits utilization of pill boxes or any other device to keep track of the proper daily and weekly dosages. It is consistent with common sense and reason to conclude that many elderly citizens and others lose track of the amount of drugs they have consumed in the absence of such a technique. In the opinion later adopted in its entirety by this Court, the district court concluded: In the final analysis, section 893.13(2)(a)7 criminalizes activity that is 7

otherwise inherently innocent. We do not believe that taking a lawfully prescribed medication from its original container and placing it in a different container, whether for convenience, dosage, or for some other personal reason, is criminal behavior. Walker at 1140. In the instant case the Defendant did exactly what this Court held in Walker was not criminal behavior. The Defendant possessed alprazolam in a bottle which was labeled for a different prescription medication, and with the Defendant s name. Carrying one s prescription medication somewhere other than the original container is simply not criminal behavior; this Court held that such an act is entirely innocent. Id. at 1140. The Walker court held quite specifically that even if section 893.13(2)(a)7 helps law officers in deciding whom to arrest, the blanket prohibition against carrying prescription drugs which are controlled substances except in original containers causes activities which are otherwise entirely innocent to become criminal violations. 444 So. 2d at 1140. Here the officer who arrested the Defendant did exactly what the Walker court held to be unconstitutional. The Defendant apparently had a prescription for alprazolam prior to the examination of the bottle by the officer. R.026. Xanax is also known as alprazolam. R.062, lines 17-22. The officer who examined the bottle identified the alprazolam. The officer was not immediately able to identify the other pill 8

which was in the bottle when he saw it; he found it necessary to consult reference material to identify that pill. R.064, lines 3-6. However, as explained supra, the officer concluded that the Defendant was committing a crime because the officer recognized alprazolam in a bottle labeled for a different medication although the Defendant had been prescribed both drugs in the indicated doses prior to the stop. Failure to Provide Procedural Due Process of Law In addition to the direct and express conflict with the opinion of this Court in Walker, the district court failed to provide procedural due process of law. The district court relied upon 499.03(2) Florida Statutes (2012) to reverse the trial court. The same provides that possession of a prescription drug by any person not exempted under this section, which drug is not properly labeled to indicate that possession is by a valid prescription of a practitioner licensed by law to prescribe such drug, is prima facie evidence that such possession is unlawful. The Defendant is charged under 893.13(6)(a) Florida Statutes (2012), and not under 499.03. R.007, R.001. Section 499.03 was not addressed by the trial court anywhere in the record, nor was it addressed in the briefs submitted to the district court, or in any appellate opinion cited by the district court. Therefore citation of 499.03 as controlling authority in the opinion of the district court is offensive to procedural due process of law because the parties had no notice of 9

any reference to it, no opportunity to comment on it, and no opportunity to argue that 499.03 either passes constitutional muster or does not. No Florida court has addressed the constitutionality of 499.03 in a reported opinion. Section 499.03 was enacted in 1982, prior to the opinion in Walker. In Walker this Court did not address 499.03. However in the opinion in Walker which was expressly adopted by this Court, this Court clearly held that a statute prohibiting the same conduct addressed in 499.03 and in the instant case is unconstitutional. Walker at 1140-41. This Court held that taking a lawfully prescribed medication from its original container and placing it in a different container is not a crime. Id. at 1140. Such behavior is entirely innocent. Id. CONCLUSION In the instant case the district court held: possession of Xanax in a container that is not for a Xanax prescription provides prima facie evidence that the possession is unlawful. Slip opinion at 4. It would be hard to imagine a more direct and express conflict with the opinion of this Court in Walker. WHEREFORE the Defendant (the instant Petitioner) requests that this Honorable Court exercise its discretion to review the decision of the Second District Court of Appeal wherein that court adopted a position which expressly and directly conflicts with decisions of this Court on the same question of law. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief on Jurisdiction has been furnished to the Attorney General of Florida by email (to CrimAppTPA@myfloridalegal.com), on this 12th day of October, 2014. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief is printed in Times New Roman 14 point type. WILBUR SMITH LAW FIRM Attorneys for the Petitioner Post Office Drawer 8 Fort Myers, Florida 33902 239-334-7696 Christopher E. Cosden Florida Bar No. 0813478 email cosden@att.net 11

Appendix A

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D13-4638 ) CHRISTOPHER VINCI, ) ) Appellee. ) ) Opinion filed September 12, 2014. Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant. Ardyn V. Cuchel of The Law Office of Ardyn V. Cuchel, P.A., Tampa, for Appellee. SILBERMAN, Judge. The State appeals an order suppressing evidence obtained by search and seizure in this prosecution for possession of oxycodone and possession of alprazolam. Because the deputy had probable cause to seize the prescription pill bottle and the pills in it, we reverse the order suppressing evidence and remand for further proceedings.

At the suppression hearing, Deputy Travis Sibley was the only witness to testify. Deputy Sibley stopped Christopher Vinci's vehicle around 11:00 p.m. because the deputy believed the driver was impaired. The deputy obtained Vinci's driver's license, and Vinci advised the deputy that he had a firearm in the glove box. There was a passenger in the front seat. Deputy Sibley told them to leave their hands where he could see them and requested backup for officer safety reasons. When the backup deputy arrived, Deputy Sibley asked Vinci if he would mind exiting the vehicle. Deputy Sibley asked if there were any other guns or anything else illegal in the vehicle, and Vinci responded, "No, no, you can search." As Vinci stepped out of the vehicle, Deputy Sibley observed a large orange pill bottle in the driver's side door pocket. The area was well lit, and the deputy had his spotlight shining on Vinci's vehicle. The deputy said he could read the label because it was in a very large font and the bottle was sitting up out of the top of the door pocket. The label had the name Christopher Vinci on it, and Deputy Sibley knew that to be the driver because he had identified him by his driver's license. The deputy could also see on the label "Suboxone, two milligrams." In addition, Deputy Sibley could see the open side of the bottle without the label and saw two pills. One was a small blue pill that he could not identify. The other was white and bar shaped; based on his training and experience, he knew it was Xanax or alprazolam. He could see all this without touching the bottle. The deputy also knew that Xanax did not resemble Suboxone. Deputy Sibley believed Vinci had committed the crime of possession of a controlled substance. - 2 -

The deputy then picked up the prescription bottle, knowing there was Xanax in the Suboxone bottle. The deputy looked at Vinci and just said, "Suboxone." Vinci said he had Suboxone and some Xanax and that he had a prescription for all of it. Deputy Sibley determined that the white pill was in fact Xanax and used the website Drugs.com to verify that the other pill was oxycodone. Vinci never indicated that he had a prescription for oxycodone. Vinci was subsequently arrested for possession of oxycodone and possession of alprazolam. At the suppression hearing the State argued that even if Vinci's consent did not extend to searching the contents of the prescription bottle, when Deputy Sibley observed the Xanax in the prescription bottle marked Suboxone the illicit nature of the substance was immediately apparent. The State asserted that because the white pill in the bottle did not match the label, the deputy had probable cause to seize the bottle and the pills in it. The trial court, however, suppressed the evidence on the basis that when the deputy observed the Xanax in the prescription bottle the illicit nature of the substance was not immediately apparent because a person could legally possess Xanax, as opposed to an item like cocaine. On appeal of a trial court's ruling on a motion to suppress, we employ a mixed standard of review in which the trial court's determination of historical facts is subject to reversal only if the record lacks competent, substantial evidence to support the trial court's determination. State v. K.S., 28 So. 3d 985, 986 (Fla. 2d DCA 2010). Our review of mixed questions of law and fact and of legal conclusions is de novo. Id. The State argues on appeal that Deputy Sibley had probable cause to open the prescription pill bottle and seize its contents. The trial court recognized that to seize - 3 -

evidence in plain view the incriminating nature of the evidence must be immediately apparent. See State v. Walker, 729 So. 2d 463, 464 (Fla. 2d DCA 1999); Keller v. State, 946 So. 2d 1233, 1234 (Fla. 4th DCA 2007). As this court has stated, "Such a determination merely requires that the facts available to the officer would lead a reasonable man of caution to believe that certain items may be contraband." Walker, 729 So. 2d at 464. Based on the facts as determined by the trial court, the trial court erred in ruling that the incriminating nature of the items in the pill bottle was not immediately apparent to the deputy. The trial court based its conclusion on the fact that the deputy did not know whether Vinci had a prescription for Xanax. However, having a valid prescription is a defense to possession of a controlled substance. See 499.03(1), 893.13(6)(a), Fla. Stat. (2012); O'Hara v. State, 964 So. 2d 839, 840-41 (Fla. 2d DCA 2007). Section 499.03(2) further provides that "possession of a drug under subsection (1) by any person not exempted under this section, which drug is not properly labeled to indicate that possession is by a valid prescription of a practitioner licensed by law to prescribe such drug, is prima facie evidence that such possession is unlawful." Thus, possession of Xanax in a container that is not for a Xanax prescription provides prima facie evidence that the possession is unlawful. Based on this statute and the testimony the trial court relied upon, the incriminating nature of the white pill was immediately apparent and the deputy had probable cause to seize it. A valid prescription would have been a defense, but the deputy was not required to anticipate Vinci's defenses. See Keller, 946 So. 2d at 1235. - 4 -

We note that in Smith v. State, 95 So. 3d 966, 967 (Fla. 1st DCA 2012), the First District reversed the denial of a motion to suppress when an officer seized a plastic bag containing several white pills that was on the seat of the defendant's car. That case is distinguishable because "[t]he deputy did not testify to any markings on the pills, or lack thereof, which helped him identify what they were; he observed only that they were larger than a certain brand of breath mint and larger than aspirin tablets." Id. at 970. There, the appellate court recognized that the deputy had "testified that in his experience, 'many people' carry their prescription medications in plastic or other types of bags, and that such practice 'is not uncommon.' " Id. at 969. Although the practice is not uncommon, section 499.03(2) shows that the practice results in a prima facie case of illegal possession of a controlled substance. The Smith case did not mention section 499.03(2). However, based on the facts presented, the court observed that "the incriminating nature of the pills was not immediately apparent to the deputy." Id. In State v. Deaton, 109 So. 3d 338, 340 (Fla. 4th DCA 2013), the Fourth District determined that an officer lacked probable cause to make an arrest for a felony based on one oxycodone pill found in the defendant's pocket during a consensual search. The court observed that oxycodone can be possessed lawfully with a prescription and that "it is not unusual for a traveler with a valid prescription to separate a pill from a prescription bottle for later consumption." Id. The Deaton case also did not mention section 499.03(2). Based on section 499.03(2) and the facts relied upon by the trial court, we determine that the trial court erred as a matter of law in determining that the deputy - 5 -

illegally seized the prescription pill bottle and the pills in it. Thus, the trial court should not have suppressed the evidence. Vinci also makes a tipsy coachman 1 argument that the suppression should be affirmed because the trial court erred as a matter of law in determining that the deputy made a lawful stop of Vinci's vehicle for a DUI investigation. To support a valid stop for a DUI offense an officer needs only a founded suspicion of criminal activity. State, Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992). Erratic driving such as weaving within a traffic lane has been determined sufficient to support a reasonable suspicion of a DUI offense. See id. "The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior." Id.; see also State v. Davidson, 744 So. 2d 1180, 1180-1181 (Fla. 2d DCA 1999). In Roberts v. State, 732 So. 2d 1127, 1128 (Fla. 4th DCA 1999), the court determined that "Roberts' continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence." Here, at around 11:00 p.m., the deputy observed Vinci for approximately a mile weaving within his lane. Vinci's vehicle would drift to the right side of the lane and hit the reflectors and then drift to the left side of the lane and hit the reflectors, and Vinci consistently did this for about a mile. He then turned on his left turn signal, slowly 1 See Ray v. State, 40 So. 3d 95, 98 (Fla. 4th DCA 2010) (stating that the tipsy coachman doctrine allows an appellate court "to affirm a lower court's holding when the lower court reached the correct result despite using incorrect reasoning"). - 6 -

drifted over into the left lane, continued driving, and left his turn signal blinking. Under these circumstances, the trial court did not err in determining that the deputy had a reasonable suspicion to make an investigatory stop to determine whether Vinci was impaired. Therefore, we reject Vinci's argument regarding the stop of his vehicle. Based on the analysis above regarding the seizure of the pill bottle and its contents, we reverse the suppression order and remand for further proceedings. Reversed and remanded. BLACK and SLEET, JJ., Concur. - 7 -