LARRY JAMES JORDAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry James Jordan appeals the denial of his motion to suppress cocaine seized during a pat-down search, arguing the initial stop lacked founded suspicion. The court agreed, finding the officer's stop based solely on proximity to an area of known drug activity was insufficient to constitute founded suspicion, and reversed Jordan's cocaine possession conviction.
The initial stop was illegal because the officer lacked founded suspicion—mere presence in an area of known drug activity is insufficient factual basis for detention. Even if consent had been valid, the officer exceeded the permissible scope of a weapons frisk by retrieving cocaine from a small inner front pocket where no weapon could reasonably be believed to exist. The conviction is reversed.
[1] A law enforcement officer may temporarily detain a person only if the officer has a founded suspicion, based on factual circumstances, that the person has committed, is c…
[2] Mere presence in an area of known criminal activity, without more, is insufficient to establish a founded suspicion for a temporary detention.
Previewing 2 of 4 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“A law enforcement officer may temporarily detain a person if the officer has a founded suspicion that the person has committed, is committing, or is about to commit a crime.”
Establishes the legal standard for lawful detention under Florida law.
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Join FLexlaw to unlock all legal intelligenceA law enforcement officer responded to a complaint about drug activity in apartment number 12 of a residential complex. Jordan and his companion were …
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THREADGILL, Judge.
Larry James Jordan appeals an order denying his motion to suppress cocaine that was taken from his person during a pat-down search. He claims that the police officer did not have the necessary “founded” suspicion to stop and detain him. We agree and reverse his conviction for possession of cocaine.
A law enforcement officer may temporarily detain a person if the officer has a founded suspicion that the person has committed, is committing, or is about to commit a crime. § 901.151, Fla.Stat. (1983); Wilson v. State, 433 So. 2d 1301 (Fla.2d DCA 1983). A founded suspicion is a suspicion which has factual foundation in the circumstances; a mere suspicion of criminal activity is insufficient. Carter v. State, 454 So. 2d 739 (Fla.2d DCA 1984).
In this case, the officer was answering a complaint about drug activity in apartment number 12 of the complex. Although the appellant and his companion were in the general vicinity, they were not seen at or leaving that apartment. The officer did not have a description of any individual involved in the alleged illegal activity. Officer Smith stopped the two men merely because they were in an area of known drug activity. This is an insufficient factual basis to constitute a founded suspicion that criminal activity had been committed or was about to be committed. Morris v. State, 519 So. 2d 706 (Fla.2d DCA 1988); G.J.P. v. State, 469 So. 2d 826 (Fla.2d DCA 1985). The stop was, therefore, illegal.
The state argues that the search may be upheld even if the stop was illegal because the appellant consented to the pat-down search. However, since the stop constituted illegal detention, the subsequent consent was presumptively tainted, and the burden was upon the state to prove, by clear and convincing evidence, that the consent was voluntary. Norman v. State, 379 So. 2d 643 (Fla.1980). Although Officer Smith testified that the appellant consented to the patdown, he also indicated that the appellant had repeatedly asked to leave and had complained that he was being harassed. Under these circumstances, it cannot be said that the appellant freely and voluntarily agreed to the search. Because the appellant’s consent was not proved by clear and convincing evidence, the trial court erred in failing to suppress the cocaine seized as a result of this search. Lockwood v. State, 470 So. 2d 822 (Fla.2d DCA 1985).
Moreover, we find that even had the appellant given valid consent to the pat-down search, the officer undoubtedly exceeded the permissible scope of a weapons search when he retrieved the four rocks of cocaine from the small inner front pocket of the appellant’s jeans. The officer could not reasonably have believed the object in that pocket was a weapon. See Baldwin v. State, 418 So. 2d 1219 (Fla.2d DCA 1982). Accordingly, we reverse the conviction and sentence.
Reversed.
SCHEB, A.C.J., and HALL, J., concur.
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Citator
Cited By (20 total)
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State v. Simons, 549 So. 2d 785 (Fla. 2d DCA 1989)…bout to commit a crime. § 901.151, Fla. Stat. (1987); Terry. We have recently emphasized that a well-founded suspicion is determined from the totality of the circumstances and must be more than a mere suspicion of criminal activity. Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989). In this case, Deputy Pickering approached Simons and asked if he was selling drugs. Simons voluntarily and without any request from the deputy displayed the revolver he was carrying under his shirt. The evidence at the suppressi…
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Gonzalez v. State, 578 So. 2d 729 (Fla. 3d DCA 1991)…1980); State v. Fuksman, 468 So. 2d 1067, 1068-69 (Fla. 3d DCA 1985). . Norman v. State, 379 So. 2d 643, 646-47 (Fla.1980); State v. Fuksman, 468 So. 2d 1067, 1071-73 (Fla. 3d DCA 1985) (Pearson, J. and Schwartz, C.J., concurring); Jordan v. State, 544 So. 2d 1073, 1074 (Fla. 2d DCA 1989); State v. Martin, 532 So. 2d 95, 96-97 (Fla. 4th DCA 1988); Alvarez v. State, 515 So. 2d 286, 288 (Fla. 4th DCA 1987); State v. Blan, 489 So. 2d 865 (Fla. 1st DCA 1986). .We have not overlooked the fact that such advice is…
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Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990)…McCarthy v. State, 536 So. 2d 1196 (Fla. 4th DCA 1989). The fact that a person is merely in a known drug area is an insufficient basis to constitute a founded suspicion. G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985). See also Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); Morris v. State, 519 So. 2d 706 (Fla. 2d DCA 1988). Flight from an officer in a high crime area is also insufficient to give rise to a founded suspicion. Cobb v. State, 511 So. 2d 698 (Fla. 3d DCA 1987). See also Gipson v. State,…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norman v. State, 379 So. 2d 643 (Fla. 1980)
- LaMarcus Edward Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984)
- G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985)
- Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983)
- Baldwin v. State, 418 So. 2d 1219 (Fla. 2d DCA 1982)
- Morris v. State, 519 So. 2d 706 (Fla. 2d DCA 1988)
- Bulah S. Lockwood and David Dials v. State, 470 So. 2d 822 (Fla. 2d DCA 1985)