REGINALD FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; LOVETTE L. CLARK, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1983-05-25
Nos. 82-547, 82-986
GRIMES and SCHOONOVER, JJ., concur.
433 So. 2d 9 Florida District Court of Appeal, Second District (1983) Negative Treatment
Cited by 30 cases

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Synopsis

Two defendants appealed their probation sentences following denial of motions to suppress evidence from a traffic stop. The court reversed, finding that the police lacked a founded suspicion required to justify the stop under Florida law, as carrying a flashlight in a parking lot with prior burglaries was merely bare suspicion.


Holding

The court held that the stop was invalid because carrying a lit flashlight in a parking lot with a history of vehicle burglaries, without additional facts, constitutes only bare suspicion and does not provide the founded suspicion required under Florida law to justify a temporary detention.


Headnotes

[1] A police officer must have a "founded" suspicion that a person has committed, is committing, or is about to commit a crime to justify a temporary detention.

[2] A "bare" suspicion of illegal activity cannot support a police stop.

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Key Quotes

“in order to justify a temporary detention, a police officer must have a "founded" suspicion that the person has committed, is committing, or is about to commit a crime”

Establishes the legal standard required for a valid police stop under Florida law

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Facts & Procedural History

Officers observed three individuals walking in a parking lot at 2:20 a.m., one carrying a lit flashlight, at a complex that had experienced automobile…

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Opinion of the Court
HOBSON, Acting Chief Judge.

HOBSON, Acting Chief Judge.

Reginald Freeman and Lovette Clark appeal orders placing each on two years probation following a denial of their motions to suppress. We reverse. The state charged appellants with burglary of a conveyance in violation of section 810.02, Florida Statutes (1981). No one testified at the hearing on appellants’ motions to suppress. Instead, appellants’ counsel and the assistant state attorney combined to give the following sketchy account of the facts:

At approximately 2:20 a.m. on September 15, 1981, Officers Cope and Burney of the Tampa Police Department were traveling on 113th Avenue past the Village Square Apartments in Tampa when they observed three individuals, one of whom was carrying a lit flashlight, walking in the parking lot of the complex. They did not see them touching any automobiles and did not see any automobiles which had been tampered with. Although they were aware that there had been quite a few automobile break-ins at this particular parking lot, there were not any reports of a burglary in progress. The officers drove down the block, turned around, came back approximately two minutes later, and observed an automobile with several individuals inside exiting the parking lot. Officer Burney could not say that they were the same individuals whom they had just observed. The officers stopped the vehicle, inquired of its occupants, arrested them for burglary of an automobile in the parking lot, and seized unspecified evidence.

The court below denied appellants' motions to suppress, stating in pertinent part:

I think certainly carrying a flashlight carries some weight. I think it’s unusual to carry a flashlight. I don’t recall the last time I went walking through a parking lot with a flashlight but I am going to deny the Motion to Suppress. I think it’s a justifiable stop.

After appellants entered pleas of nolo contendere,

the court below filed orders withholding adjudication of guilt and imposition of sentence as to each appellant and placing each on two years probation.

Appellants contend here that the stop of their car was invalid. Based upon the skeletal factual picture drawn by counsel for both sides below, we are compelled to agree.

It is settled that, in order to justify a temporary detention, a police officer must have a “founded” suspicion that the person has committed, is committing, or is about to commit a crime. Section 901.151, Florida Statutes (1981); Kearse v. State, 384 So. 2d 272 (Fla. 4th DCA 1980). A “bare” suspicion of illegal activity cannot support a stop. Mullins v. State, 366 So. 2d 1162 (Fla.1979); R.B. v. State, 429 So. 2d 815 (Fla. 2d DCA 1983); Kearse; State v. Stevens, 354 So. 2d 1244 (Fla. 4th DCA 1978). Although carrying a lit flashlight in the early morning hours through a parking lot which has suffered a rash of vehicle burglaries may give rise to a “bare” suspicion of illegal activity, it does not, without more, give rise to a “founded” suspicion of illegal activity. Here, the facts show only that the individuals were walking through the parking lot with a lit flashlight. There is nothing to indicate that the officers were aware of anything else which might have led them to reasonably believe that the individuals were engaged in illegal activity. Thus, we reverse.

While the introduction of testimony at the suppression hearing may have led to a more detailed portrayal of the facts, and, perhaps, an opposite result here, we reject the state’s contention that appellants, by not presenting any evidence below, did not carry their burden of going forward with the evidence and making a prima facie showing of an illegal search and seizure. The assistant state attorney relieved appellants of their burden of presenting evidence by not challenging the account of the facts given by their counsel and by participating himself with appellants’ counsel in outlining the facts. In essence, the assistant state attorney thereby implicitly stipulated that the only material facts were those presented by counsel for both sides. Accordingly, we reverse the orders denying the motions to suppress.

REVERSED.

GRIMES and SCHOONOVER, JJ., concur. . Although the record on appeal is silent on the matter, we presume that appellants specifically reserved their right to appeal the denial of their motions to suppress since the state does not argue otherwise.


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Citator

Cited By (15 total)

  • LaMarcus Edward Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984)
    …le was anything less than an investigatory detention under Terry, which was justifiable only if the officers possessed a “founded” suspicion of the occupants’ criminal activity.1 Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983); Freeman v. State, 433 So. 2d 9 (Fla. 2d DCA 1983); R.B. v. State, 429 So. 2d 815 (Fla. 2d DCA 1983); State v. Perera, 412 So. 2d 867 (Fla. 2d DCA), petition for review denied, 419 So. 2d 1199 (Fla.1982); § 901.151, Fla. Stat. (1981). See Terry v. Ohio; United States v. Mendenhall…
  • State v. Arnold, 475 So. 2d 301 (Fla. 2d DCA 1985)
    …revealed that at this time of the year migrants and transients were frequently found in the area. Chief Deputy Kelly admitted it was not uncommon for migrants to sleep in the brush and get their clothes wet as a result. See, e.g., Freeman v. State, 433 So. 2d 9 (Fla.2d DCA 1983); Kearse v. State, 384 So. 2d 272 (Fla.4th DCA 1980). Moreover, it is not uncommon for innocent individuals to appear nervous when they see or talk to a sheriff’s deputy. See Stanley v. State, 327 So. 2d 243 (Fla.2d DCA), cert. deni…
  • State v. Beja, 451 So. 2d 882 (Fla. 4th DCA 1984)
    …d 889 (1968), and Thomas v. State, 250 So. 2d 15 (Fla. 1st DCA 1971). 354 So. 2d at 1247. We agree with the trial court’s determination that the facts of this case do not give rise to a founded suspicion of criminal activity, see Freeman v. State, 433 So. 2d 9 (Fla. 2d DCA 1983); Schneider v. State, 353 So. 2d 870 (Fla. 4th DCA 1977); Lower v. State, 348 So. 2d 410 (Fla. 2d DCA 1977), and we hold that the police unlawfully stopped the car occupied by appellees Beja and Lennon. Next, appellant contends th…

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