NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
R.C., )
)
Appellant, )
)
v. ) Case No. 2D15-1738
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 11, 2016.
Appeal from the Circuit Court for
Hillsborough County; Manuel A. Lopez,
Judge.
Howard L. Dimmig, II, Public Defender, and
Alisa Smith, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for Appellee.
WALLACE, Judge.
R.C., a juvenile, appeals a disposition order placing him on probation for
possession of marijuana and administering a judicial warning for possession of drug
paraphernalia. R.C. argues that the trial court erred in admitting the testimony of the
arresting officer identifying the plant material and pipe seized from R.C.'s book bag as
marijuana and drug paraphernalia because the State failed to satisfy the recently
adopted Daubert 1 standard for the admissibility of expert testimony as stated in section
90.702, Florida Statutes (2014) (codifying Daubert). Because the Daubert standard
regarding the admissibility of expert testimony does not change the long-established
rule that lay persons can identify marijuana based on their personal experience and
knowledge, we affirm.
I. THE FACTS
On November 19, 2014, a teacher at a high school in Hillsborough County
reported to the assistant principal that she had seen two male students smoking on the
school grounds. When the teacher confronted the students, they ran. The assistant
principal relayed the teacher's account of the students' behavior, their description, and
the direction that they had taken to the resource officer assigned to the school, a
sheriff's deputy. The deputy promptly got in his patrol car and left the school in pursuit
of the two students. He saw the students run through a nearby mobile home park and
hide in a shed. After the deputy issued several commands to the students, they
emerged from the shed. R.C. was one of the two students. When the deputy
approached R.C., he noticed "[a] strong odor of burnt marijuana emitting from his
person."
The deputy transported R.C. and the other student back to the school. At
the school, the assistant principal questioned R.C. and searched his book bag. The
search of the book bag revealed a package containing a leafy substance and a blue
pipe. The assistant principal turned these items over to the deputy.
1Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).
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II. THE PETITION AND THE HEARING
The State filed a delinquency petition charging R.C. as follows: Count
One, possession of cannabis (less than twenty grams), a violation of section
893.13(6)(b), Florida Statutes (2014); and Count Two, possession of drug
paraphernalia, a violation of section 893.147(1). R.C. entered a plea of not guilty, and
the matter was scheduled for an adjudicatory hearing. Before the hearing, defense
counsel filed a "Child's Motion in Limine to Exclude Law Enforcement Testimony as to
Their Ability to Detect Cannabis." The motion requested the entry of an order barring
"law enforcement opinion testimony as to having sufficient training and experience to
detect cannabis." In support of this motion, defense counsel argued, among other
things, that the State would be unable to satisfy the Daubert standard for the
admissibility of expert testimony, codified in section 90.702, effective July 1, 2013, with
regard to the testimony of the deputy identifying the substance found in R.C.'s book
bag.
The trial court considered the motion in limine at the adjudicatory hearing.
The deputy testified that he had been employed at the Hillsborough County Sheriff's
Department for approximately thirteen years. The deputy's curriculum at the police
academy had included training in the detection of controlled substances, including
marijuana. The deputy had also taken several courses related to the detection of
narcotics. His experience working at middle schools and high schools involved
investigations related to marijuana on an almost daily basis. The deputy stated that he
had testified more than one hundred times in the courts of Hillsborough County
regarding his recognition of substances as marijuana. Based on his training and
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experience, the deputy testified that he could identify the odor coming from R.C. upon
his apprehension as marijuana. The deputy also testified that he had determined that
the substance found in R.C.'s book bag was marijuana. Finally, the deputy testified that
the pipe taken from the book bag was a device used for smoking marijuana.
Defense counsel timely objected to the deputy's testimony about the odor
coming from R.C. and the nature of the substance found in his book bag. In addition to
reasserting the previously-filed motion in limine, she argued at the hearing as follows:
[A]s far as the ability to detect marijuana by the odor
and the smell, I don't think that he meets the reliability
standard. He wasn't able to give an error rate. He has no
peer reviewed journal articles that support his ability. He's
never, ever had any—he's had one, out of the hundreds, of
his substances that he alleged to be marijuana, tested and
verified by a laboratory.
I don't think he can reliably testify as to having the
ability to detect marijuana under the new gatekeeping
function that the Court must provide.
The trial judge explained his view as follows:
But this officer is giving his opinion—is testifying as to
what he believes the substance was based on his training
and experience; not based on a scientific test. Based on his
training and experience.
....
He's giving a lay opinion. He's not giving an expert
opinion.
Based on this rationale, the trial court allowed the deputy to testify concerning his
determination that the substance found in R.C.'s book bag was marijuana.
At the conclusion of the hearing, the trial court found R.C. to be guilty of
both offenses as charged. The trial court withheld adjudication of guilt and placed R.C.
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on probation for six months on the charge of possession of marijuana. With regard to
the paraphernalia charge, the trial court administered a judicial warning. This appeal
followed.
III. DAUBERT AND SECTION 90.702
In 2013, the legislature amended section 90.702 with the intention of
adopting "the standards for expert testimony in the courts of this state as provided in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), General Electric
Co. v. Joiner,
522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael,
526 U.S. 137
(1999)." Ch. 2013-107, § 1, at 1462, Laws of Fla. (Preamble to § 90.702). The
legislature also expressed its intention that the standard in Frye v. United States,
293 F.
1013 (D.C. Cir. 1923), would no longer apply in the Florida courts.
Id. By amending
section 90.702, the legislature further intended to prohibit the use in the Florida courts of
pure opinion testimony as provided in Marsh v. Valyou,
977 So. 2d 543 (Fla. 2007).
Id.
In other words, by adopting Daubert, the legislature made it clear that "pure opinion
testimony," i.e., testimony based only on the personal experience and training of the
expert, is no longer admissible. Booker v. Sumter Cty. Sheriff's Office/N. Am. Risk
Servs.,
166 So. 3d 189, 192 (Fla. 1st DCA 2015).
As amended, section 90.702 provides as follows:
If scientific, technical, or other specialized knowledge
will assist the trier of fact in understanding the evidence or in
determining a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or
data;
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(2) The testimony is the product of reliable principles
and methods; and
(3) The witness has applied the principles and
methods reliably to the facts of the case.
The effective date of the amendment to section 90.702 is July 1, 2013. Ch. 2013-107, §
3. 2
In Daubert, the Supreme Court considered the admissibility of scientific
testimony, holding that such testimony is admissible only if it is both relevant to the
issues and reliable.
509 U.S. at 589. Daubert posits a "gatekeeper" role for judges,
requiring them to consider as a preliminary matter to the admissibility of scientific expert
testimony "whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be
applied to the facts in issue."
Id. at 592-93. Noting that many factors would bear on this
inquiry, the Court set out some general factors to be considered in assessing the
reliability of scientific expert testimony as follows: (1) whether the theory or technique
can be and has been tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the known potential rate of error of the particular
scientific technique under consideration; and (4) whether the scientific theory or
technique has achieved general acceptance in the relevant scientific community.
Id. at
593-94.
2We recognize that the Florida Supreme Court has not adopted the
amendment to section 90.702 rejecting the Frye standard in favor of Daubert as a rule
of procedure. However, R.C. is arguing in favor of the applicability of Daubert, and the
State has not raised any constitutional issue regarding the 2013 amendment.
Accordingly, we assume without deciding that the Daubert standard is applicable to
expert testimony. See Baan v. Columbia County, 40 Fla. L. Weekly D2707, D2708 n.8
(Fla. 1st DCA Dec. 8, 2015).
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In Kumho Tire, the Court held that the principles announced in Daubert
extended not only to scientific expert testimony but to all subjects of expert testimony,
including matters involving technical or other specialized knowledge.
526 U.S. at 147-
49. The court's opinion in Kumho Tire makes clear that Daubert's requirement that the
trial court act as a "gatekeeper" to the admissibility of expert testimony "applies not only
to 'scientific' knowledge, but also testimony based on 'technical' and 'other specialized'
knowledge."
Id. at 141.
IV. R.C.'S APPELLATE ARGUMENT
R.C. observes that his trial counsel objected to the "pure opinion, lay
opinion, and expert testimony" offered at the hearing by the deputy. Indeed, R.C.'s trial
counsel argued that despite the deputy's testimony about his training and experience,
the number of drug cases that he had investigated, and his personal experiences with
marijuana, he was not qualified to offer an opinion under section 90.702. Notably, the
deputy's testimony about the identity of the substance found in R.C.'s book bag was
unsupported by any field testing or laboratory findings.
On appeal, R.C. argues that the deputy's testimony was inadmissible for
two reasons. First, the testimony amounted to "pure opinion" testimony that is now
inadmissible under Daubert as codified in section 90.702. Second, the deputy's
testimony about his "training and experience" did not provide "facts or data," based on
reliable principles and methods, or principles and methods reliably applied to the facts
of the case for his testimony to be admissible. Stated differently, R.C. argued that
because law enforcement officers cannot reliably depend upon their sensory organs to
detect marijuana, the codification of Daubert in section 90.702 prohibits the use of their
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pure opinion testimony—rooted in their training and experience—in identifying an
unknown substance as marijuana. See Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385,
387 (Fla. 1st DCA 2014) (holding that an expert medical witness's testimony was "pure
opinion" where it was "unsupported by a foundation of sufficient facts and data and
lacking a basis in reliable medical principles and methods").
V. DISCUSSION
We think that the trial court correctly ruled that the deputy's identification of
the substance found in R.C.'s book bag as marijuana was admissible in evidence.
Before the 2013 amendment to section 90.702, the identification of marijuana by
nonscientific means was a settled issue in the Florida courts. See Sinclair v. State,
995
So. 2d 552, 555 (Fla. 3d DCA 2008); see also Pama v. State,
552 So. 2d 309, 311 (Fla.
2d DCA 1989) ("It is not necessary for the state to prove the identification of marijuana
by chemical or scientific means."); Dean v. State, 406 So. 2d 1162, 1164 (Fla. 2d DCA
1981) (finding a law enforcement officer's testimony sufficient to sustain a conviction for
possession of marijuana where the officer had substantial experience in narcotics
investigations and was trained to recognize marijuana); A.A. v. State,
461 So. 2d 165,
167 (Fla. 3d DCA 1984) (holding that a law enforcement officer had adequate
experience in identifying marijuana to express an opinion on the nature of the substance
at issue in the case); State v. Raulerson,
403 So. 2d 1102, 1103 (Fla. 5th DCA 1981)
("[I]t is not necessary for the State to prove the identity of contraband as marijuana by
chemical or scientific proof.").
Florida's adoption of the Daubert standard has not changed the long-
established rule that lay persons can identify marijuana—and some other illicit
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substances as well, e.g., cocaine and methamphetamine—based on their personal
experience and knowledge. Such testimony is not admitted based on scientific
expertise but instead based on the layman's training and experience, for which a
predicate establishing a sufficient degree of familiarity is sufficient. See United States v.
Walters, 904 F.2d 765, 770 (1st Cir. 1990) (holding that scientific analysis or expert
testimony is not required to prove the illicit nature of a substance and proof identifying
the substance may be based on the opinion of a knowledgeable lay person); United
States v. Paiva,
892 F.2d 148, 157 (1st Cir. 1989) ("Although a drug user may not
qualify as an expert, he or she may still be competent, based on past experience and
personal knowledge and observation, to express an opinion as a lay witness that a
particular substance perceived was cocaine or some other drug."); United States v.
Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) ("[L]ay testimony and circumstantial
evidence may be sufficient, without the introduction of an expert chemical analysis, to
establish the identity of the substance involved in an alleged narcotics transaction."). If
it were otherwise, there would be a substantial amount of litigation on this subject in the
federal courts and other jurisdictions that adopted Daubert years ago. Tellingly, the
contrary is true. The federal courts—which have followed Daubert since 1993—have
long allowed lay testimony to identify illicit substances much as the deputy did in this
case. See, e.g., United States v. Robinson, 144 F.3d 104, 108 (1st Cir. 1998) ("[P]roof
based upon scientific analysis or expert testimony is not required to prove the illicit
nature of a substance," quoting United States v. Valencia-Lucena, 925 F.2d 506, 512
(1st Cir. 1991)); Robinson v. State,
702 A.2d 741, 745 (Md. 1997) (collecting both
federal and state cases supporting the proposition that proof of the chemical
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composition of an alleged controlled substance need not be established only by
chemical analysis but instead may be proved by circumstantial or indirect evidence).
In this case, the State laid a sufficient foundation for the deputy's
identification of the substance found in R.C.'s book bag as marijuana based on the
deputy's experience and training. See Dean,
406 So. 2d at 1164 (holding that a law
enforcement officer's testimony was sufficient to identify a substance as marijuana
where the evidence showed that the officer had substantial experience in narcotics
investigations and was trained to recognize marijuana); A.A.,
461 So. 2d at 167 (holding
that a law enforcement officer's opinion testimony identifying a substance as marijuana
was sufficient where the officer had adequate experience in identifying marijuana and
he expressed his opinion based on the appearance of the substance, the nature of its
packaging, and the arrestee's possession of "rolling papers"). It follows that the trial
court did not err in denying R.C.'s motion in limine and properly admitted the deputy's
testimony identifying the substance found in R.C.'s book bag as marijuana.
Accordingly, we affirm the order of disposition.
Affirmed.
BLACK and LUCAS, JJ., Concur.
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