THE STATE OF FLORIDA, APPELLANT,
v.
IN THE INTEREST OF T.P., A JUVENILE, APPELLEE
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This is a dissenting opinion arguing that a police officer's pat-down search of a detained individual was unconstitutional because it lacked the required probable cause to believe the person was armed with a dangerous weapon, as mandated by statute.
The dissenting judge believes the pat-down search was impermissible because the officer did not establish probable cause to believe T.P. was armed with a dangerous weapon, failing to meet statutory and constitutional requirements.
[1] A furtive movement observed by an officer during a lawful traffic stop can justify a pat-down search of a vehicle's occupant.
[2] The objective reasonableness of a search is determined by the circumstances known to the officer at the time of the search, not by the officer's subjective intent or moti…
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Join FLexlaw to unlock all legal intelligenceThe dissenting judge reproduces testimony from an officer who detained T.P. and conducted a pat-down search for a weapon. The officer's justification …
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[*287] PER CURIAM.
Appellant, State of Florida appeals the suppression of a gun obtained after a war-rantless search of appellee, T.P. We reverse.
Appellee was a passenger in a car which was stopped because it had an expired out-of-state temporary tag. The driver of the vehicle refused to stop. Several police vehicles joined in a chase in order to stop the car. After the car was stopped and the driver failed to produce a driver's license, the officers asked the occupants to get out of the vehicle. As appellee exited the car, appellee made, what one officer described as, a furtive movement. After appellee exited, he was searched. The search revealed a gun.
Appellee moved to suppress the gun alleging that the officers lacked the articulable suspicion necessary to justify a search. Appellee also alleged that the officer who searched appellee conducted the search because appellee was black.
At the hearing on the motion to suppress, the officer who observed appellee’s movements testified that appellee’s furtive movement was the reason for the search of appellee. Other officers testified that appellee was searched because he fit a profile, and for the officers’ safety.
The existence of probable cause is measured by an objective standard, not based on an officer’s underlying intent or subjective motivation. Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168, reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978); Padron v. State, 449 So. 2d 811 (Fla.1984).
Although some of the officers’ reasons for suspecting that appellee was armed were unwarranted and not based on any law, we find that the furtive gesture which the officer observed was sufficient to justify a pat down of appellee. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
Accordingly, we reverse the suppression of the gun and remand for further proceedings. Reversed and remanded.
NESBITT and GERSTEN, JJ., concur.
COPE, Judge
(dissenting).
I respectfully dissent. I would affirm the order under review for the reasons stated by the trial court. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-87, 95 S.Ct. 2574, 2582-83, 45 L.Ed.2d 607, 618-20 (1975); Hall v. Pennsylvania State Police, 570 F. 2d 86, 89-91 (3d Cir. 1978); United States v. Carrizoza-Gaxiola, 523 F. 2d 239, 241 (9th Cir.1975); United States v. Nicholas, 448 F. 2d 622, 625 (8th Cir.1971); compare P.S.D. v. State, 388 So. 2d 1069, 1070 n. 4 (Fla. 3d DCA 1980); Franklin v. State, 374 So. 2d 1151, 1154 (Fla. 3d DCA 1979), cert. denied, 388 So. 2d 1113 (Fla.1980).
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D.H. v. State, 121 So. 3d 76 (Fla. 3d DCA 2013)…obable cause that he had committed a crime. “The existence of probable cause is measured by an objective standard, not based on an officer’s underlying intent or subjective motivation.” Hernandez v. State, 784 So. 2d at 1128 (quoting State v. T.P., 588 So. 2d 286, 287 (Fla. 3d DCA 1991)). If probable cause exists to arrest a suspect, an officer may conduct a search of the suspect incident to the lawful arrest. Jenkins, 978 So. 2d at 125 (citing United States v. Robinson, 414 U.S. at 235, 94 S.Ct. 494). Searc…
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Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999)…e trial court or this court. See State v. Sobrino, 587 So. 2d 1347, 1351 (Fla. 3d DCA 1991). “The existence of probable cause is measured by an objective standard, not based on an officer’s underlying intent or subjective motivation.” State v. T.P., 588 So. 2d 286, 287 (Fla. 3d DCA 1991) (citing Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), and Padron v. State, 449 So. 2d 811 (Fla.1984)); see also Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “…
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State v. A.J., 720 So. 2d 1156 (Fla. 3d DCA 1998)…tate v. Scott, 641 So. 2d 517, 520 (Fla. 3d DCA 1994) (Where probable cause existed to arrest for burglary, arrest was not rendered unlawful by the fact that the officers initially characterized the offense as loitering and prowling); State v. T.P., 588 So. 2d 286, 287 (Fla. 3d DCA 1991)(“The existence of probable cause is measured by an objective standard, not based on an officer’s underlying intent or subjective motivation .”); Thomas v. State, 395 So. 2d 280, 281 (Fla. 3d DCA 1981)(“Where, by objective sta…
Authorities Cited (11 total)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- United States v. Brignoni-Ponce, 422 U.S. 873 (U.S. 1975)
- Pennsylvania v. Mimms, 434 U.S. 106 (U.S. 1977)
- Scott v. United States, 436 U.S. 128 (U.S. 1978)
- Franklin v. State, 374 So. 2d 1151 (Fla. 3d DCA 1979)
- United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971)
- Hall v. Pa. State Police & Colonel James D. Barger, 570 F.2d 86 (3d Cir. 1978)
- Padron v. State, 449 So. 2d 811 (Fla. 1984)
- United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975)
- Scott v. United States, 438 U.S. 908 (U.S. 1978)