IN THE INTEREST OF G. T., A CHILD

Fla. 4th DCA | 1980-08-20
No. 79-1372
DOWNEY, J., and GEIGER, DWIGHT L., Associate Judge, concur.
387 So. 2d 485 Florida District Court of Appeal, Fourth District (1980) Caution
Cited by 6 cases

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Holding

The court held that while the initial stop of the juveniles was based on founded suspicion, the subsequent frisk was illegal due to a lack of probable cause to believe they were armed.


Headnotes

[1] A founded suspicion exists when circumstances reasonably indicate that a person is about to commit a violation of criminal laws.

[2] A police officer may stop and temporarily detain individuals when there is a founded suspicion that they are about to commit a criminal violation.

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Facts & Procedural History

Two juveniles were in a flower shop for an extended period, causing employee apprehension. Police responded, and one juvenile had his hand in his pock…

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Opinion of the Court
LETTS, Chief Judge.

LETTS, Chief Judge.

This is an appeal from a denial of a motion to suppress, the appellant claiming lack of founded suspicion to stop and no probable cause to frisk. We agree there was no probable cause to frisk and reverse.

There is no transcript of the hearing on the motion to suppress, but all parties, pursuant to Fla.R.App.P. 9.200(b)(3), have agreed to the factual setting reproduced in toto as follows:

Eleanor Obenshin, employee of Dick’s Florist was working alone in the shop on February 28, 1979. Two black males entered the fairly large store and began to look at the merchandise. When asked if she could help them, the males responded that they were just looking. Five to ten minutes later, Ms. Obenshin became apprehensive. She could not explain why; other than it was just a gut feeling she had. As a result, Ms. Obenshin summoned assistance.

Officers Sinnott and Albertas responded to the scene. Ms. Obenshin related her apprehensiveness to the police officers. Subsequently, Off. Sinnott asked the two black males if they were being helped. They responded that they were just looking. Officer Sinnott testified that one black male had his right hand in his pocket. As a result he asked the two black males to step outside; whereupon he conducted a pat down search of them. Officer Sinnott discovered that the same black male had a .22 calibre revolver in his right front pocket. The black male with the revolver was later identified as G.T., and his companion was B.H., both juveniles. Consequently, G.T. was arrested for carrying a concealed firearm as well as attempted robbery. Confessions were obtained from both juveniles.

B.H. testified that neither himself nor G.T. were acting in a suspicious manner while in the store. He testified that they were just looking around at the merchandise in the store both before and during the police officers arrival at the scene.

The result here hinges on Section 901.151, Florida Statutes (1979), our “Stop and Frisk Law.”

Initially we are concerned with whether there were circumstances which reasonably indicated that the two youths were about to commit a violation of the criminal laws of this State and we think there were. Judge Hurley, speaking for the Court, has recently exhaustively examined our current thinking on this subject, see In the Interest of G.A.R. II, a child, 387 So. 2d 404 (Fla. 4th DCA 1980), and we do not propose to repeat it here. Suffice it to say that from the policeman’s viewpoint there existed founded suspicion under all the circumstances sufficient to satisfy the criteria reported in Lachs v. State, 366 So. 2d 1223 (Fla. 4th DCA 1979).

The policemen were called to the flower shop by the apprehensive employee to investigate two teenagers who had been hanging around for up to ten minutes for no apparent reason. Teenagers may often hang around a drug store, but it is rare indeed to find them doing so in a flower shop where at best they are incongruous. True, they may have a logical explanation, such as wanting to buy a plant for mother’s birthday, but that does not negate a policeman’s right to stop, ask questions and temporarily detain. We, therefore, hold the stop to be proper. ’ As to the frisk we must come to a different conclusion. Section 901.151 requires that before a pat down for a weapon may be conducted, the officer must have probable cause to believe the suspect is armed. That is statutory law by which we are bound and there is simply nothing in the instant set of stipulated facts that gives rise to probable cause to believe the youth was armed and we have no other record to resort to, to discover it.

The sole evidence is that one of the youths had “his right hand in his pocket.” It may be that the policemen also saw a suspicious bulge, or that they thought the youth was armed because of the way he put his hand in his pocket, or something, or anything. Yet, if additional facts are in existence, the stipulated version does not provide them and we are totally unable to record approval of a pat down for weapons solely because citizens have their hands in their pockets, unless consent is first obtained during temporary detainment and questioning.1

Accordingly, as we said in Isham v. State, 369 So. 2d 103, 104 (Fla. 4th DCA 1979) the officer, under the stipulated facts presented, “moved too fast” and the search was illegal.

REVERSED AND REMANDED.

DOWNEY, J., and GEIGER, DWIGHT L., Associate Judge, concur. . We are of the view that questioning could have included asking why the youth had his hand in his pocket.


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Cited By

  • State v. Lawson, 446 So. 2d 202 (Fla. 3d DCA 1984)
    …ircling a block and passing the open gas station four or five times at a speed of ten to fifteen miles per hour, the officers had a well-founded suspicion of criminal activity to justify stopping the defendant’s vehicle. See In the Interest of G.T., 387 So. 2d 485 (Fla. 4th DCA 1980); State v. Boutwell, 367 So. 2d 231 (Fla. 1st DCA 1979); Laster v. State, 354 So. 2d 1262 (Fla. 1st DCA 1978). Reversed and remanded.…
  • J.R.H. v. State, 428 So. 2d 786 (Fla. 2d DCA 1983)
    …weapon.” § 901.151(5) (emphasis supplied). In the first place, we believe, based on Truesdale’s testimony and the surrounding circumstances, that Truesdale did not have the probable cause required under section 901.151(5), In the Interest of G.T., 387 So. 2d 485 (Fla. 4th DCA 1980), to believe, upon noticing the small bag, that it contained a dangerous weapon that would render appellant a threat to his safety. Moreover, in any event, Truesdale’s inquiry exceeded the extent of inquiry or search permitted by…
  • Lightfoot v. State, 720 So. 2d 545 (Fla. 4th DCA 1998)
    …stified where, at 1:00 a.m., car drove first very slowly at the rear of an office building and then very quickly, in an apparent attempt to evade the officer, who had been informed that day of several arsons in [*546] the area); In Interest of G.T., 387 So. 2d 485 (Fla. 4th DCA 1980)(stop justified where policemen were called to flower shop by an apprehensive employee to investigate two teenagers who had been hanging around for up to ten minutes for no apparent reason). The facts are stronger for the state i…

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