BRIAN G. PEABODY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Peabody challenges the denial of his motion to suppress evidence seized during a stop in a high-crime area. The court reversed, holding that the officer lacked a founded suspicion of criminal activity necessary to justify the detention, and remanded with instructions to discharge.
The court held that the trial court erred in denying the motion to suppress because the officer lacked a founded suspicion of criminal activity. Merely observing a person approach a car in a high-crime area and speak to the occupant, even if the occupant extends an open hand, does not constitute a founded suspicion—only bare suspicion—which is insufficient to justify a detention.
[1] A law enforcement officer must have a founded suspicion of criminal activity to temporarily detain a person for investigation.
[2] A founded suspicion requires more than a mere or bare suspicion of criminal activity; it must have a factual foundation in the circumstances observed by the officer.
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Join FLexlaw to unlock all legal intelligence“Before a law enforcement officer may temporarily detain a person for purposes of investigation, circumstances must reasonably indicate that the person has committed, is committing, or is about to commit a crime.”
Establishes the statutory requirement under § 901.151, Fla.Stat. for any justifiable detention
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Join FLexlaw to unlock all legal intelligenceDuring a surveillance operation in a drug-prone neighborhood, Officer observed appellant, a white male, talking to several other males and then approa…
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SCHOONOVER, Judge.
The appellant, Brian G. Peabody, challenges an order denying a motion to suppress certain evidence seized from him. After the trial court denied the appellant’s motion to suppress, he pled nolo contendere to the charge of possession of a controlled substance and reserved his right to appeal the court’s order. The court accepted the appellant’s plea, adjudicated him guilty, and placed him on probation. We find that the trial court erred by denying the motion and, accordingly, reverse.
At the hearing on the appellant’s motion, the parties stipulated to the facts set forth in the motion. According to the motion, this incident arose out of a surveillance operation being conducted in a neighborhood known for its drug activity. The appellant, the only white male in the area, was observed talking to several other males. He subsequently approached a man in an automobile which was parked in a lighted parking lot. After the man extended his open hand, palm up, toward the appellant, the officer who observed this activity, but who did not see anything passing between the two men, requested the assistance of uniformed officers in the area. The officers converged on the men and stopped the appellant. The driver of the automobile fled. One of the officers patted down the appellant and removed a bag containing pills from his pocket.
The trial court denied the appellant’s motion to suppress these pills and the statements the appellant gave to the officers. The appellant filed a timely notice of appeal from the subsequent judgment and sentence.
The appellant contends that the facts and circumstances surrounding his detention did not support a founded suspicion of criminal activity. The appellee contends that the officer had probable cause to arrest the appellant and that the search was incident to a lawful arrest. We agree with the appellant.
Before a law enforcement officer may temporarily detain a person for purposes of investigation, circumstances must reasonably indicate that the person has committed, is committing, or is about to commit a crime. § 901.151, Fla.Stat. (1987).
Although such a detention may be based upon something less than probable cause, it cannot be based upon mere or bare suspicion of criminal activity. Coladonato v. State, 348 So. 2d 326 (Fla.1977); G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985).
The suspicion must be founded, i.e., have some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. G.J.P. The appellant approached a car parked in a lighted parking lot in a high crime area. He talked to an unknown occupant of the car who extended his hand, palm up, toward the appellant. The officer did not see anything in the hand nor anything pass between the two. An officer who observes a person approach a car in a high crime area and talk to the occupant may have a bare suspicion of criminal activity, but he does not have a founded suspicion. State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988); Mosley v. State, 519 So. 2d 58 (Fla. 2d DCA 1988); State v. Delaney, 517 So. 2d 696 (Fla. 2d DCA 1987).
The fact that the occupant of the car extended his hand does not' raise the suspicion to a founded suspicion. See Mosley.
The trial court, therefore, erred in denying the appellant’s motion to suppress.
We, accordingly, reverse and remand with instructions to discharge the appellant for this offense.
SCHEB, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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State v. Anderson, 591 So. 2d 611 (Fla. 1992)…rt of appeal lack a similar combination of facts. See Dames v. State, 566 So. 2d 51 (Fla. 1st DCA 1990) (defendant was observed in high crime area leaning into window of stopped car and walked away rapidly upon officer’s approach); Peabody v. State, 556 So. 2d 826 (Fla. 2d DCA 1990) (defendant approached car parked in lighted parking lot in high crime area and talked to unknown occupant of car who extended his hand, palm up toward defendant); Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989) (defendant, wh…
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Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992)…, as the officer observed no exchange of drugs, money, or anything else. See Bush v. State, 594 So. 2d 793 (Fla. 3d DCA 1992); Bolinger v. State, 576 So. 2d 875 (Fla. 2d DCA 1991); Dames v. State, 566 So. 2d 51 (Fla. 1st DCA 1990); Peabody v. State, 556 So. 2d 826 (Fla. 2d DCA 1990); Gipson. Cf. Winters v. State, 578 So. 2d 5, 6 (2d DCA), rev. den., 589 So. 2d 292 (Fla. 1991) (temporary detention justified because officer saw defendant lean into vehicle and accept money from driver); Blanding v. State, 446 So…
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Grant v. State, 718 So. 2d 238 (Fla. 2d DCA 1998)…41] law enforcement officer’s founded suspicion of criminal activity must “have some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in the light of the officer’s knowledge.” Peabody v. State, 556 So. 2d 826, 827 (Fla. 2d DCA 1990). Here, although the law enforcement officer was aware of a burglary that had occurred on this residential street six to twelve hours earlier, he possessed no information that linked either Mr. Grant or his vehicle to that bu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coladonato v. State, 348 So. 2d 326 (Fla. 1977)
- G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985)
- Mosley v. State, 519 So. 2d 58 (Fla. 2d DCA 1988)
- State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988)
- Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987)
- State v. Delaney, 517 So. 2d 696 (Fla. 2d DCA 1987)