Recently the Supreme Court of Florida released its opinion on Greenwade v. State (SC12-598), which involved the issue of “whether the trial court erred by denying…[defendant’s] motion for acquittal on [a] trafficking charge because the State had combined, tested, and weighed the contents of all of the nine individual baggies found in his possession together instead of chemically testing each baggie for cocaine before commingling and weighing their contents.”

Greenwade was arrested when officers discovered nine individually wrapped baggies of a white powder substance in his possession. Officers failed to individually test each baggie (only one baggie was tested) prior to combining and weighing the substance in the aggregate. At trial Greenwade was convicted of trafficking in cocaine in an amount more than 200 grams but less than 400 grams, possession of controlled substance paraphernalia, possession of a firearm by a convicted felon, and resisting an officer without violence. Greenwade appealed the trafficking conviction, and the First District Court of Appeals affirmed.

The Supreme Court granted review over this case because the First District’s decision to affirm Greenwade’s conviction conflicted with the decision of the Third District Court of Appeal in Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988), which held that when a state seizes separate packets of alleged drugs the packets must be tested individually before combining and weighing the substance. The First District rejected the holding in Ross, and held that law enforcement did not have to test each bag of substance individually before commingling them because the surrounding circumstances of the discovery along with a positive result for cocaine was sufficient evidence for a jury to convict him of trafficking.

The Supreme Court opined that the holding in Ross provides a concise and simple rule for law enforcement, prosecutors, and courts to follow and therefore rejected the First District’s holding to the contrary. The Court reasoned that the Ross standard is more consistent with the court’s statutory scheme and proper administration of justice. The Court reasoned that the state by neglecting to test each substance separately would pose a threat to the legislature’s conscious decision to punish less severely the possession of look-alike substances under section 817.563 Fla. Stat. (2009). By commingling individual packets before testing, the state could eliminate any possibility of discovering whether packets accompanying a controlled substance contained non-controlled substances. By doing so, the state would also improperly ensure that it could charge a defendant with a more serious crime.

Court limited its holding in this case only to situations involving substances that present an identifiable danger of misidentification such as cocaine, methamphetamine and heroin, and not to cases where no threat of misidentification existed, such as those involving marijuana. See Bond v. State, 538 So. 2d 499 (Fla. 3d DCA 1989); Pama v. State, 552 So. 2d 309 (Fla. 2d DCA 1989).