TEDDY KINDELL, ETC., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Teddy Kindell pleaded no contest to drug and weapons possession but reserved the right to appeal the trial court's denial of his motion to suppress evidence obtained through a warrantless pat-down search. The appellate court reversed, holding that the officer lacked probable cause to believe Kindell was armed with a dangerous weapon, and therefore the frisk violated Florida law.
The court held that the pat-down search was unjustified because the officer lacked probable cause to believe Kindell was armed with a dangerous weapon as required by Florida Statute § 901.151. A valid stop does not necessarily justify a frisk; probable cause that the person is armed with a dangerous weapon is required, and no such probable cause existed here.
[1] A warrantless search of a person is unlawful absent probable cause to believe the person is armed with a dangerous weapon.
[2] An anonymous tip identifying drug sellers only by race, without indicating the presence of weapons, does not justify a pat-down search for weapons.
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“Section 901.151, Florida Statutes (1987) requires that before a search can be conducted the officer must have "probable cause to believe that the person to be searched is armed with a dangerous weapon."”
Establishes the legal standard for conducting a frisk or pat-down search under Florida law
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Join FLexlaw to unlock all legal intelligenceOn December 17, 1988, Officer Walczak responded to an anonymous tip about drug sales at a particular location. When Kindell, a black male, walked away…
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HARRIS, Judge.
Teddy Kindell pleaded no contest to possession of cocaine and carrying a concealed weapon, reserving the right to appeal the trial court’s refusal to suppress the evidence seized on a result of a warrantless search of his person. We agree that the evidence should have been suppressed and reverse the conviction.
On December 17, 1988, Officer Walczak of the Orlando Police Department, acting on an anonymous tip that black males were selling drugs at a certain location, proceeded to that location to investigate. As he approached, two black males walked slowly away. Appellant, a black male, walked away quickly and sat down on a nearby stoop.
Officer Walczak approached appellant, asked whether he lived there and requested identification. Appellant responded that he did not live there and, although he had no proof of identification, gave the officer his name and date of birth. Officer Walczak then asked if appellant would consent to search and received the response, “No. What’s your probable cause?” As appellant stood up to leave, Officer Walczak conducted a pat down for weapons. He felt a bulge in appellant’s right rear pocket which turned out to be brass knuckles. In removing the brass knuckles, the officer noticed a plastic bag in the same pocket. This bag contained cocaine.
Once the concealed weapon was found, a proper search would have uncovered the cocaine. The ultimate issue before this court, therefore, is whether the search for weapons was justified under the facts of this case.
The “tip” neither identified the seller of the cocaine, other than by race, nor indicated that weapons were present. Officer Walczak admitted that appellant made no movement toward him and that he saw nothing to indicate the presence of a weapon. He justified the search “[bjecause generally when you are dealing with any type of drug call, for my own safety I will always check the outer clothing for weapons.” While this might well be prudent policy, it does not comply with existing law. Section 901.151, Florida Statutes (1987) requires that before a search can be conducted the officer must have “probable cause to believe that the person to be searched is armed with a dangerous weapon.” This court held in Redfin v. State, 453 So. 2d 425 (Fla. 5th DCA 1984) that a valid stop does not necessarily justify a frisk; there must be probable cause that the person detained is armed with a dangerous weapon. No such probable cause existed in this case.
The State’s reliance on United States v. Oates, 560 F. 2d 45 (2d Cir.1977) and United States v. Seni, 662 F. 2d 277 (4th Cir.1981), cert. denied sub nom. Minton v. United States, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 664 (1982) is misplaced. Even if an experienced officer might infer that “substantial dealers in narcotics” are probably armed, no case has suggested that this reasoning should be applied to suspected street dealers of small quantities of drugs.
REVERSED.
DANIEL, C.J., and PETERSON, J., concur.
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Enich v. State, 838 So. 2d 1216 (Fla. 3d DCA 2003)…nown to carry weapons” insufficient to justify pat-down search); Smith v. State, 735 So. 2d 570, 572 (Fla. 2d DCA 1999)(holding that detainee appearing nervous and perspiring, without more, insufficient to justify pat-down search); Kindell v. State, 562 So. 2d 422, 423 (Fla. 5th DCA 1990) (holding that involvement in street dealing of small quantities of drugs insufficient to justify pat-down search). However, in the instant case, as explained by the police officer, he decided to pat-down the defendant for hi…
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Poole v. State, 639 So. 2d 96 (Fla. 5th DCA 1994)…20 L.Ed.2d 889 (1968). . State v. Nova, 361 So. 2d 411 (Fla.1978); State v. Frost, 374 So. 2d 593 (Fla. 3d DCA 1979). . See Curry v. State, 570 So. 2d 1071 (Fla. 5th DCA 1990); Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990); Kindell v. State, 562 So. 2d 422 (Fla. 5th DCA 1990); Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988); Morris v. State, 519 So. 2d 706 (Fla. 2d DCA 1988); Mosley v. State, 519 So. 2d 58 (Fla. 2d DCA 1988); G.J.P. v. State, 46…1 / 2
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T.P. v. State, 585 So. 2d 1020 (Fla. 5th DCA 1991)…e trial court’s findings as a matter of law. Accordingly, we affirm. AFFIRMED. COWART, J., concurs. GRIFFIN, J., dissents with opinion. . State v. Pye, 551 So. 2d 1237 (Fla. 1st DCA 1989). . See § 901.151(5), Fla.Stat. (1989); Kindell v. State, 562 So. 2d 422 (Fla. 5th DCA 1990). The observation of a bulge in a suspect’s pocket constitutes probable cause to frisk or pat-down the suspect for the officer’s safety. McNamara v. State, 357 So. 2d 410 (Fla.1978); Thomas v. State, 250 So. 2d 15 (Fla. 1st DCA 19…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Oates, 560 F.2d 45 (2d Cir. 1977)
- Henrique v. United States Marshal, 455 U.S. 950 (U.S. 1982)
- Scull v. United States, 455 U.S. 950 (U.S. 1982)
- United States v. Seni, 662 F.2d 277 (4th Cir. 1981)
- Leron Herbert Redfin v. State, 453 So. 2d 425 (Fla. 5th DCA 1984)