STATE OF FLORIDA, APPELLANT,
v.
JONATHAN G. PALMER, APPELLEE
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Florida appealed the suppression of cocaine evidence found during a search of Jonathan Palmer following his arrest for loitering and prowling. The court affirmed the suppression, holding that officers lacked probable cause for the loitering arrest and therefore could not lawfully search Palmer's person.
The court held that officers lacked probable cause to arrest Palmer for loitering and prowling. Therefore, the search of Palmer's person based on the unlawful arrest must be suppressed. Even if officers had founded suspicion of criminal activity, they could not search Palmer's person absent probable cause for arrest, except for a limited Terry weapons patdown.
[1] A search of a person based upon an unlawful arrest must be suppressed.
[2] Police cannot use a loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful…
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Join FLexlaw to unlock all legal intelligence“The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense.”
Establishes that police cannot bootstrap evidence from an unlawful detention based on a pretextual loitering charge
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTwo deputy sheriffs observed Palmer and a companion meet with known drug dealers in an area known for drug activity in an unlit area near a duplex. Th…
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PER CURIAM.
We affirm the suppression of evidence in this case by the trial court.
Two deputy sheriffs of the Broward County Sheriff’s office observed a known drug dealer approach appellee and a companion in an area known for a high degree of drug activity. The group was joined by another known drug dealer, and they all walked to an unlit area near the back of a duplex. They remained in that area for a moment or two and then dispersed. Appel-lee and his companion left the way from which they had come. Although the officer stated that he had not lost sight of the group, he did not see a narcotics transaction take place. However, he suspected one had taken place.
The officers approached appellee and his companion and asked why they were in the area. Appellee responded that they were just taking a walk. Upon further questioning, he denied knowing or talking to anyone in the area. During the conversation, the officer noted a lump in Appellee’s mouth and that Appellee was moving his tongue around. The officer had previously made approximately ten arrests where defendants had concealed cocaine in their mouths. However, he said he first thought the lump was chewing tobacco. The officer asked appellee if something was wrong with his mouth, to which appellee replied in the negative. At that point, the officer told appellee he was under arrest for loitering and told him to open his mouth. The appellee complied and a cocaine rock was revealed. Appellee was then arrested for possession of cocaine.
Based on this record, the officers did not have probable cause to arrest the appellee for loitering and prowling. State v. Ecker, 311 So. 2d 104 (Fla.1975); T.L.F. v. State, 536 So. 2d 371 (Fla. 2d DCA 1988). Thus, the search of appellee’s person based upon the unlawful arrest must be suppressed. As the Second District said:
The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense.... To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.
T.L.F., 536 So. 2d at 372.
We need not decide whether the stop of appellee was a “mere encounter” or a stop based upon founded suspicion because even if the officers had a founded suspicion of criminal activity, there is no justification for the search of the person for other than a weapons type patdown, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 20 L.Ed.2d 889 (1968), until probable cause exists for an arrest. The record does not support the existence of probable cause for the commission of the offense of loitering and prowling or a narcotics offense prior to the illegal search of appellee. The order suppressing the evidence is therefore affirmed.
DOWNEY, LETTS and WARNER, JJ., concur.
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State v. Cremer, 563 So. 2d 817 (Fla. 5th DCA 1990)…conceded at oral argument by counsel for the appellees, the trial court’s determination was not predicated on resolution of a factual conflict in the testimony, but rather on the court’s interpretation and application of the case of State v. Palmer, 543 So. 2d 400 (Pla. 4th DCA 1989). We find that the arresting deputy had sufficient probable cause to arrest for violation of Florida Statute 856.021; Florida’s loitering and prowling statute. This statute provides that a police officer may arrest if the followi…
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Sapp v. State, 573 So. 2d 1052 (Fla. 4th DCA 1991)…a subsequent appeal following resen-tencing this court reversed the sentence, holding two of three written reasons for departure invalid, and remanded for resen-tencing in accordance with Albritton v. State, 476 So. 2d 158 (Fla.1985). Sapp v. State, 543 So. 2d 400 (Fla. 4th DCA 1989) (Sapp II). Upon resentencing the trial court departed, in writing, on the ground previously upheld. Sapp now claims that since his first sentence (Sapp I) was reversed because the trial court failed to put departure reasons in…
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McGEE v. State, 673 So. 2d 186 (Fla. 4th DCA 1996)…nce of the required imminent threat to the peace or public safety. The suspicious circumstances indicating that a drug sale might have occurred, taken alone, are not sufficient to support a conviction for loitering and prowling. Cf. State v. Palmer, 543 So. 2d 400 (Fla. 4th DCA 1989); Springfield, v. State, 481 So. 2d 975 (Fla. 4th DCA 1986); Carroll v. State, 573 So. 2d 148 (Fla. 2d DCA 1991); D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985); Blanding v. State, 446 So. 2d 1135 (Fla. 3d DCA 1984). Additional…
Authorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- State v. Ecker, 311 So. 2d 104 (Fla. 1975)
- T.L.F. v. State, 536 So. 2d 371 (Fla. 2d DCA 1988)