HOMER C. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Homer Smith was convicted of carrying a concealed weapon after police found a pistol during a frisk. The court reversed the conviction, holding that the officer improperly transformed a consensual encounter into a warrantless stop and search lacking probable cause or reasonable suspicion.
The stop was improper and not supported by probable cause. By requiring Smith to place his hands on the hood of the cruiser in a frisk position, the officer transformed a consensual encounter into an unlawful stop. The officer possessed only an unarticulated suspicion and no reasonable belief that Smith was carrying a weapon, making the frisk and discovery of the pistol products of an unconstitutional search that must be suppressed.
[1] A consensual encounter transforms into a stop, requiring reasonable suspicion, when an officer exercises authority to require a suspect to place their hands on a vehicle.
[2] An officer's unarticulated suspicion that a suspect may be carrying a weapon is insufficient to justify a stop.
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Establishes the critical point that the officer's order transformed a consensual encounter into a seizure/stop.
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Join FLexlaw to unlock all legal intelligenceDeputy Zuniga approached Smith and a woman talking in the roadway at 2:30 a.m. in a drug-prone area. The woman fled when the officer approached. The o…
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CAMPBELL, Acting Chief Judge.
Appellant was convicted of carrying a concealed weapon. On appeal, he challenges the court’s denial of his motion to suppress. We find that the stop and search that resulted in the discovery of the concealed weapon was improper and reverse.
Deputy Zuniga testified that he was on patrol at 2:30 a.m. in an area known for drugs when he observed appellant and a woman, standing close together, talking in the roadway. As the officer approached, the woman fled. Appellant appeared to be concealing something, but the officer could not see what it was. The officer had not seen the pair exchange anything other than conversation. He did not know either of them.
The officer got out of his cruiser, summoned appellant to approach and asked him his identity. As the officer was identifying appellant, he told him to put his hands on the hood of the cruiser “for safety reasons.” When appellant kept trying to put one of his hands back in his pocket, the officer frisked him for safety reasons and discovered a pistol.
Although it was proper, given the circumstances, for the officer to ask appellant for identification, when the officer required appellant to place his hands on the hood of the car, the consensual encounter was transformed into a stop that was not supported by probable cause. The consensual nature of the encounter ended when the officer exercised his authority to require appellant to place his hands on the hood of the car in what sounds like “frisk position.” See Canton v. State, 550 So. 2d 562 (Fla. 4th DCA 1989).
At the time that the officer required appellant to place his hands on the hood of the car, the officer had, at most, an unarticulated suspicion that appellant was carrying a weapon. He did not see a weapon prior to the search, nor did he articulate any reason to believe appellant was carrying a weapon. At the hearing, the officer explained his actions only by saying that he had appellant put his hands on the car “for safety reasons.” The officer did not say that he was concerned for his safety because appellant had been concealing something that the officer feared might be a weapon. Compare State v. Callaway, 582 So. 2d 745 (Fla. 2d DCA 1991) [officer’s patdown of outside of pockets upheld where suspect, wearing long bulky coat, had both hands in large front pockets and officer stated at trial that it “appeared there may be something in the pockets that could possibly threaten my safety”]. Contrast Reynolds v. State, 592 So. 2d 1082 (Fla.1992) [use of handcuffs upheld in context of Terry stop where reasonably necessary to protect officer’s safety or thwart attempt to flee].
Under these facts, the officer had no more than a mere hunch, which was insufficient to justify the stop. See Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984). This is unlike the situation in State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991), where this court found reasonable the officer’s request that Starke put her hands out in front where he could see them. There is no indication here that appellant’s hands were not visible or were “up to no good” and, therefore, no reason to require him to place them on the hood of the car. Moreover, presence in a drug area late at night does not justify detainment. State v. Levin, 452 So. 2d 562 (Fla.1984). Similarly, flight from an officer does not justify detention, especially since it was not appellant, but his companion, who ran. See Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989). Neither do furtive movements justify detention. Spence v. State, 525 So. 2d 442 (Fla. 5th DCA 1988).
In view of the fact that the stop and search procedure was improper, evidence of the fruits of the search, the concealed weapon, must be suppressed.
We, accordingly, reverse and remand for a new trial.
HALL and PATTERSON, JJ., concur.
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Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992)…self give rise to a founded suspicion of criminal activity and does not justify a stop and frisk, Daniels v. State, 543 So. 2d 363, 365 (Fla. 1st DCA 1989), especially where the person is detained as a result of a companion’s flight. Smith v. State, 592 So. 2d 1239, 1240 (Fla. 2d DCA 1992). Second, a quick movement as if to conceal something is a legally insufficient reason to justify an investigatory stop. Gipson, 537 So. 2d at 1082; Ruddack v. State, 537 So. 2d 701 (Fla. 4th DCA 1989); Walker v. State, 514…
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Sholtz v. State, 649 So. 2d 283 (Fla. 2d DCA 1995)…cocaine residue out of another pocket. The bulge Deputy Kane first noticed was wadded up money. Although the meeting began as a consensual encounter, it was transformed into a stop when Deputy Kane decided to conduct a patdown. See Smith v. State, 592 So. 2d 1239, 1240 (Fla. 2d DCA 1992) (“[W]hen the officer required appellant to place his hands on the hood of the ear, the consensual encounter was transformed into a stop.”). Because the facts did not establish a well-founded suspicion that Sholtz was involve…
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J.B. v. State, 679 So. 2d 1296 (Fla. 2d DCA 1996)…iminal activity. This court stated: “[a]n officer who observes someone in a high crime area make such movement may have his suspicions aroused, but may not legally detain the person for further investigation.” 514 So. 2d at 1151. See Smith v. State, 592 So. 2d 1239 (Fla. 2d DCA 1992). In T.W.C. v. State, 666 So. 2d 217 (Fla. 2d DCA 1995), the defendant was a passenger in a car that was stopped. He was nervous and fidgeting. When asked if he had any knives,, guns, drugs, bombs or other contraband, the defendan…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reynolds v. State, 592 So. 2d 1082 (Fla. 1992)
- LaMarcus Edward Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984)
- In re D.M., 543 So. 2d 363 (Fla. 5th DCA 1989)
- State v. Levin, 452 So. 2d 562 (Fla. 1984)
- State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991)
- State v. Callaway, 582 So. 2d 745 (Fla. 2d DCA 1991)
- Spence v. State, 525 So. 2d 442 (Fla. 5th DCA 1988)
- Alternative Mortg. Corp. v. Tri-J Enters., Inc., 550 So. 2d 562 (Fla. 4th DCA 1989)