STEPHEN SITES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Sites was arrested after a police officer searched his shirt pocket based on the presence of Zig-Zag rolling papers, ultimately leading to charges of tampering with evidence and drug paraphernalia possession. The Fourth District reversed, holding that simply seeing rolling papers in a shirt pocket, without more, is insufficient to conduct a search of a person lawfully sleeping in a parked car.
The court held that seeing rolling papers in a shirt pocket, without more, is an insufficient basis upon which to conduct a search. Nothing in the circumstances of appellant sleeping in his legally parked car suggested any illegal activity, and legally parked cars do not give police officers a basis for detaining or searching persons therein.
[1] A police officer's suspicion that rolling papers are used for marijuana, without more, does not provide a sufficient basis to conduct a search.
[2] A person sleeping in a legally parked car does not, by itself, suggest illegal activity sufficient to justify a police detention or search.
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“Appellant argues that seeing rolling papers in a shirt pocket, without more, is an insufficient basis upon which to conduct a search. We agree.”
Establishes the core holding that rolling papers alone cannot justify a warrantless search
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Join FLexlaw to unlock all legal intelligenceOfficer Touchberry approached a legally parked car where appellant Sites was asleep, initially suspecting it was fire-gutted due to tape around the re…
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PER CURIAM.
This is an appeal from the denial of a motion to suppress and a judgment and sentence. We reverse and remand.
Appellant was asleep in his car, which was lawfully parked along a road near a bridge about 10:00 or 11:00 p.m. Officer Touchberry, having been with the Yero Beach Police Department for a year and a half, noticed the car and thought it was fire-gutted. When he approached the car, he realized that it was not, but rather tape around the rear window gave it that appearance. He was curious about the car being parked there, so he approached the car, saw appellant asleep across the two front bucket seats and woke him up.
Appellant sat up at the officer’s request and began to look for his wallet to produce identification, again at the officer’s request. The officer saw in appellant’s front left t-shirt pocket a package of Winston cigarettes and a pack of Zig-Zag rolling papers. The officer’s experience was that such papers were used more commonly for marijuana than regular tobacco. The car did not smell of marijuana. The officer asked appellant to empty the contents of his pocket on the hood of the car. Appellant reached into his pocket and fumbled and then pulled out what the officer thought appeared to be a marijuana cigarette. Appellant put the cigarette into his mouth and the officer attempted to retrieve it. The officer grabbed appellant’s neck with his hands. Appellant swallowed the cigarette.
Appellant was charged by information with tampering with evidence, resisting an officer without violence and possession of drug paraphernalia. The state nolle prossed the resisting count. Appellant moved to suppress the evidence as resulting from an unlawful search/seizure, which motion the trial court denied after a hearing. A jury found appellant not guilty of possession of drug paraphernalia and guilty of tampering with evidence as charged. He was adjudicated guilty and sentenced to twenty-two months incarceration. His appeal of the order denying his motion to suppress and his appeal of his judgment and sentence were consolidated by this court.
Appellant argues that seeing rolling papers in a shirt pocket, without more, is an insufficient basis upon which to conduct a search. We agree. Nothing in the circumstances of appellant sleeping in his legally parked car suggested any illegal activity was taking place. Legally parked cars do not give police officers a basis for detaining or searching persons therein. See Griggs v. State, 565 So. 2d 361 (Fla. 1st DCA 1990); Spence v. State, 525 So. 2d 442 (Fla. 5th DCA 1988); McCloud v. State, 491 So. 2d 1164 (Fla. 2d DCA 1986); Lower v. State, 348 So. 2d 410 (Fla. 2d DCA 1977). Cf. State v. Warshan, 580 So. 2d 317 (Fla. 3d DCA 1991); State v. Jacobs, 574 So. 2d 277 (Fla. 3d DCA 1991); State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA 1989).
GLICKSTEIN, C.J., ANSTEAD, J., and WALDEN, JAMES H., Senior Judge, concur.
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Citator
Cited By
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Alpha McNEIL v. State, 746 So. 2d 547 (Fla. 5th DCA 1999)…obtain it for my investigation to see what it was. Q. Did the Defendant comply or resist you in your effort to retain the paper? A. He resisted at that point. Q. What did he do? A. He tensed up and put the paper in his mouth. . See Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991) (reversing conviction for tampering with evidence where evidence should have been suppressed for illegal search).…
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Alvarez v. State, 695 So. 2d 1263 (Fla. 2d DCA 1997)…er the circumstances would believe that he should comply. See Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990).” 626 So. 2d at 188. Legally parked cars do not give police officers a basis for detaining or searching persons therein. Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991). Moreover, because the appellant was illegally detained, the officers were not entitled to be in the place where they observed the pipe. G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985). Accordingly, we reverse the trial court’…
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Miami-Dade Police Dep't v. In re Forfeiture $28, 946 So. 2d 1133 (Fla. 3d DCA 2006)…that a crime had or was about to occur); Alvarez v. State, 695 So. 2d 1263 (Fla. 2d DCA 1997)(officers who observed defendant in a legally parked car at 4:00am did not have reasonable suspicion that defendant was committing a crime); Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991)(legally parked cars do not give a police officer a basis for detaining or searching persons therein). Accordingly, we affirm the trial court’s order finding the stop of the vehicle unlawful, and finding the Department could not…
Authorities Cited
- McCLOUD v. State, 491 So. 2d 1164 (Fla. 2d DCA 1986)
- Foster v. State, 348 So. 2d 410 (Fla. 1st DCA 1977)
- Lower v. State, 348 So. 2d 410 (Fla. 2d DCA 1977)
- Spence v. State, 525 So. 2d 442 (Fla. 5th DCA 1988)
- Tanya v. Griggs, 565 So. 2d 361 (Fla. 1st DCA 1990)
- State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA 1989)
- State v. Warshan, 580 So. 2d 317 (Fla. 3d DCA 1991)
- State v. Jacobs, 574 So. 2d 277 (Fla. 3d DCA 1991)