SYLVESTER H. GRAHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Graham entered a nolo contendere plea to burglary while reserving the right to appeal the denial of his motion to suppress evidence. The appellate court affirmed, holding that police officers conducted a lawful encounter with Graham and that the officer's frisk for weapons was justified by reasonable safety concerns based on an observed bulge in Graham's pocket.
The court held that the initial encounter was a lawful voluntary interaction, not a seizure, because the officers did not indicate Graham was not free to leave and Graham did not attempt to leave. The pat-down search was justified because the officer had reasonable, articulable facts supporting a belief that his safety was in danger based on the observed bulge, and a reasonably prudent person under those circumstances would be warranted in such a belief.
[1] A police encounter with a citizen constitutes a mere encounter, not a stop or detention, when there is no seizure, restraint on liberty, or restriction of freedom of move…
[2] A police officer may conduct a pat-down search for weapons if, during a lawful and temporary encounter, articulable facts reasonably arouse fear for the officer's safety.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The encounter initiated by the officers in this case involved no seizure of the defendant, no restraint on his liberty and no restriction of his freedom of movement prior to the fear of the officer being aroused.”
Establishes that the initial police-citizen interaction was a lawful encounter, not a Fourth Amendment seizure requiring reasonable suspicion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAt 1:20 a.m., police officers observed Graham, a black male, riding a girl's bicycle without lights in a residential subdivision where no black person…
The full statement of facts, procedural history, and disposition for this case are member content.
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STONE, Judge.
Appellant entered a plea of nolo conten-dere to the charge of burglary, and reserved the right to appeal the denial of a motion to suppress. We affirm.
The defendant, dressed in dark clothing, was observed by police officers at 1:20 a.m. rapidly riding a girl’s bicycle, without lights, towards the exit of a residential Hobe Sound subdivision. When the defendant suddenly came upon the police vehicle he jerked his bike around, quickly, and headed in the opposite direction from that in which he had been pedaling. One of the officers also testified that he was cognizant of the fact that the defendant was a black male, and that to his knowledge, no black persons resided in that neighborhood.
The officers followed the appellant, pulled up next to him, and made inquiries as to his identity. Graham hesitated in giving his name, as if he were unsure of it, and acted nervous in telling them that he had no identification and that he was biking from West Palm Beach to Stuart but had gotten lost. While they were running a name check, one of the officers noted a bulge in the defendant’s pocket, the existence of which is undisputed. His fear was aroused that the defendant was armed. Although no weapon was found, the ensuing “pat down” resulted in the discovery of the evidence which defendant sought to suppress.
The defendant argues that the conduct of the officers constituted an invalid detention and stop without sufficient reasonable suspicion that a crime had been, or was about to be, committed. See Kearse v. State, 384 So. 2d 272 (Fla. 4th DCA 1980); State v. Stevens, 354 So. 2d 1244 (Fla. 4th DCA 1978); Mullins v. State, 366 So. 2d 1162 (Fla.1978), on remand, 371 So. 2d 1113 (Fla. 3d DCA), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). See also Levin v. State, 449 So. 2d 288 (Fla. 3d DCA 1983), approved, 452 So. 2d 562 (Fla.1984).
However, not every “encounter” initiated by the police is a stop nor detention. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Lightbourne v. State, 438 So. 2d 380 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); State v. Smith, 477 So. 2d 658 (Fla. 5th DCA 1985); State v. Grant, 392 So. 2d 1362 (Fla. 4th DCA), rev. denied, 402 So. 2d 610 (Fla.1981).
This case is quite different from Kearse v. State, and the cases relied upon by appellant. In Kearse, the deputies observed appellant leaning into the passenger window of a vehicle, and as the deputies approached, the appellant briskly walked away. The deputies then ordered appellant to halt and turn around, placing his hands on the wall, in order to frisk him for weapons. Obviously, this was not a mere encounter between a police officer and a citizen for questioning purposes only. The deputies clearly used their show of authority to “seize” appellant, and he was not free to leave. These facts did not constitute the founded suspicion necessary to justify a valid stop.
The encounter initiated by the officers in this case involved no seizure of the defendant, no restraint on his liberty and no restriction of his freedom of movement prior to the fear of the officer being aroused. There is no evidence in the record, and the defendant does not contend, that the officers ever indicated to the defendant that he was not free to leave, nor that the defendant ever sought to leave nor otherwise refused to communicate with them. As such, this was a “mere encounter” between a citizen and a police officer which evoked voluntary cooperation on the part of the citizen, and was not a “seizure” within the meaning of the Fourth Amendment. State v. Rawlings, 391 So. 2d 269 (Fla. 4th DCA 1980), rev. denied, 399 So. 2d 1145 (Fla.1981).
Here, we cannot say that the officers went beyond the scope of a permissible and reasonable encounter nor that they effectively seized the defendant prior to observing the bulge. In this case the officers were conducting and making a reasonable inquiry, which did not necessitate a founded suspicion, when one of them noticed the bulge which he feared was a weapon. It was not until the officer feared for his safety, which was reasonably aroused, that the defendant’s freedom was restrained for the purpose of conducting the pat down. “If, during a lawful and extremely temporary encounter between a police officer and a citizen, probable cause is formulated to believe that the citizen is carrying a dangerous weapon, a frisk of that citizen’s person is entirely justified to insure the safety of the police officer.” State v. Rawlings at 270.
An officer may conduct a search for weapons under these circumstances, while he is engaged in an investigation, even though he does not have probable cause to believe that a crime has been committed, if he has reason to believe, based on articulable facts, that his safety is in danger. Terry v. Ohio. The test is whether a reasonably prudent person, under the circumstances which exist at the time of the encounter, would be warranted in such a belief. Terry v. Ohio. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The instant case is more like Carter v. State, 370 So. 2d 1181 (Fla. 4th DCA), cert. denied, 378 So. 2d 343 (Fla.1979). In Carter, the officer stopped the defendant at five in the morning to ask him what he was doing and where he was going. While questioning him, the officer noticed a bulge in defendant’s pocket, and so, the officer tapped the bulge with his hand. When asked what was in his pocket, the defendant said he had just shot a man. In Carter this court recognized that there are instances where legitimate contact between a police officer and a citizen may result in the citizen’s arrest for a crime detected by the officer as a result of such contact. The facts in Carter constituted such an instance.
There is no bright line test to determine whether a search for weapons is justifiable as reasonable. Terry contemplates that the courts will carefully and prudently balance the need to protect the safety of an officer or others against the violation of a defendant’s Fourth Amendment rights. The officer must be able to point to specific and articulable facts which, taken as a whole, reasonably warrant the intrusion. Terry v. Ohio. See also Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); State v. Webb, 398 So. 2d 820 (Fla.1981); Hochstetler v. State, 400 So. 2d 974 (Fla. 4th DCA 1981), rev. denied, 413 So. 2d 876 (Fla.1982).
It should be noted that the testimony of the defendant in this case was limited to disputing whether the clothing he was wearing was all black or dark or whether there may not have been light lettering, a light hat, or light tennis shoes. Therefore, the testimony of the deputies was essentially undisputed.
The trial court concluded that the conduct of the officers in this case was reasonable under the facts and circumstances. This conclusion is supported by the evidence.
With respect to the additional issue raised by the appellant that the trial court erred in imposing costs, it appears from the record that the defendant was given notice and the opportunity to be heard in accordance with Jenkins v. State, 444 So. 2d 947 (Fla.1984). Therefore, there was no error. We affirm.
GLICKSTEIN and WALDEN, JJ., concur.
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Terrtric Doctor v. State, 573 So. 2d 157 (Fla. 4th DCA 1991)…ieve that a crime has been committed. However, the officer, must have reason to believe, based on articulable facts, that his or another officer’s safety is in danger. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Graham v. State, 495 So. 2d 852, 854 (Fla. 4th DCA 1986). Under the circumstances that existed at the time of the encounter, the officers’ fears for their safety were warranted since each reasonably believed that the bulge in appellant’s pants might be a weapon. See Graham, 495 So…
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RAY v. State, 849 So. 2d 1222 (Fla. 4th DCA 2003)…circumstances justifying a weapons pat-down is the combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing. See, e.g., Richardson v. State, 599 So. 2d 703 (Fla. 1st DCA 1992); Graham v. State, 495 So. 2d 852 (Fla. 4th DCA 1986). Here, Perry expressly acknowledged that he did not observe any bulges in Ray’s clothing. As for the deputy’s “knowledge” of the link between drugs and weapons, here, there was nothing linking Ray to drugs, or. to any other poten…
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State v. Jenkins, 566 So. 2d 926 (Fla. 2d DCA 1990)…held to constitute only a consensual encounter in State v. Davis, 543 So. 2d 375 (Fla. 3d DCA 1989), wherein the officer drove alongside a bicyclist riding down the street and asked if he might speak with him for a minute. See also Graham v. State, 495 So. 2d 852 (Fla. 4th DCA 1986) (consensual encounter found where officers pulled alongside the appellant, who was riding a bicycle, and inquired as to his identity). We disagree with the trial court insofar as it found that the circumstances could not provide…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (23 total)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- Florida v. Royer, 460 U.S. 491 (U.S. 1983)
- Sibron v. New York, 392 U.S. 40 (U.S. 1968)
- Michigan v. Long, 463 U.S. 1032 (U.S. 1983)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Webb, 398 So. 2d 820 (Fla. 1981)
- State v. Stevens, 354 So. 2d 1244 (Fla. 4th DCA 1978)
- Lightbourne v. State, 438 So. 2d 380 (Fla. 1983)
- Griffin v. Texas, 465 U.S. 1051 (U.S. 1984)
- Kinnett Dairies, Inc. v. Dairymen, Inc., 465 U.S. 1051 (U.S. 1984)