ANTHONY KELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the investigatory stop and subsequent search were illegal, requiring suppression of evidence.
Appellant was present in a high-crime area where he lived at nighttime. The officer initiated an investigatory stop and search without further suspici…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant pled nolo contendere to a charge of possession of cocaine, but reserved his right to appeal the trial court’s denial of his motion to suppress. We reverse.
It is axiomatic that in determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop the “totality of the circumstances” must be taken into account. Although the detention may be based on something less than probable cause, it cannot be based upon mere suspicion of criminal activity. See Ruddack v. State, 537 So. 2d 701 (Fla. 4th DCA 1989); King v. State, 521 So. 2d 334 (Fla. 4th DCA 1988); State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988).
Each case must be examined individually and the question becomes whether the circumstances, including the officer’s experience, raise the stop and search to the requisite level. State v. Pye, 551 So. 2d 1237, 1238 (Fla. 1st DCA 1989); State v. Hoover, 520 So. 2d at 696. The mere fact that the appellant was present in a high crime area, which happened to be where he lived, at nighttime, without more, such as suspicious conduct or unusual circumstances as were present in Pye, 551 So. 2d at 1237, does not warrant an investigatory stop. The detention and search did not rise to the level set forth in Terry. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla.Stat. (1987). Here, the stop was illegal as was the subsequent search and the “fruits of the poisonous tree” should have been suppressed.
In light of the written stipulation between appellant and appellee that the disposition of the motion to suppress is dispos-itive of all issues in the case, we reverse and dismiss the charges against appellant.
DOWNEY, WALDEN and POLEN, JJ., concur.
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Citator
Cited By
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Voltaire Burgess v. State, 630 So. 2d 666 (Fla. 4th DCA 1994)…police to spot check for trespassers and prosecute same). Accordingly, this stop cannot be justified on the basis of defendant’s presence on private property. Similarly, the “totality of the circumstances” cannot justify the stop. In Kell v. State, 559 So. 2d 731 (Fla. 4th DCA 1990), this court reversed the denial of a motion to suppress holding that the totality of the circumstances did not justify a stop. Specifically, this court said, “The mere fact that the appellant was present in a high crime area, whi…
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Woodson v. State, 579 So. 2d 381 (Fla. 5th DCA 1991)…uty to search appellant in this case, the seizure of the weapon should have been suppressed as fruit of the poisonous tree because the stop was unlawful. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Kell v. State, 559 So. 2d 731 (Fla. 4th DCA 1990). REVERSED. HARRIS, J., concurs specially with opinion. COBB, J., dissents with opinion.…
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In the Interest of J.L., 623 So. 2d 860 (Fla. 4th DCA 1993)…le belief that the suspect may be armed. Reynolds v. State, 592 So. 2d 1082 (Fla.1992). It is well settled that stopping an individual simply for being present in a particular location, such as a high crime area, is not permitted. See Kell v. State, 559 So. 2d 731 (Fla. 4th DCA 1990). Appellant’s appearance in the area, without more, did not warrant an investigatory stop. Id. The officer at bar articulated no facts that would justify the stop and pat-down. See Hamilton v. State, 597 So. 2d 417 (Fla. 2d DCA 19…
Authorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- State v. PYE, 551 So. 2d 1237 (Fla. 1st DCA 1989)
- State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988)
- Amin Ruddack v. State, 537 So. 2d 701 (Fla. 4th DCA 1989)
- Basil King v. State, 521 So. 2d 334 (Fla. 4th DCA 1988)