E.H., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the search of a passenger in a vehicle stopped for a traffic violation was improper, even if the officer had a concern for safety.
Police stopped a vehicle for a traffic citation and ordered passengers out. An officer searched a passenger, E.H., based on E.H. reaching into his poc…
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HARRIS, Judge.
Officers of the Orlando Police Department stopped a vehicle containing four youths in order to issue a traffic citation. There was no suspicion of criminal activity. The officers ordered the passengers, including E.H., a passenger in the backseat, to get out of the car. Because E.H. “kept reaching into his pocket,” one officer conducted a pat down and felt “plastic, with some hard, rocklike rocks.” Based on his training and experience, the officer recognized the feel of the contents within the passenger’s pocket as “rock cocaine.” He seized the contents of the pocket and at tempted to justify the seizure on the “plain touch” doctrine. The trial court refused to suppress the evidence.
We need not decide this case on whether the plain touch doctrine permits this seizure. We reverse because the search itself was improper. The state’s reliance on section 901.151 is misplaced. First, this was not a Terry stop. There was no indication or even suspicion that the youths had committed, were committing, or were about to commit a violation of the criminal laws of the state. A non-criminal traffic violation justified the temporary detention solely for the purpose of issuing a citation. Cf. Cresswell v. State, 564 So. 2d 480 (Fla.1990). Although the officer expressed concern that E.H. kept reaching into his pocket, the state never established that the officer had probable cause to believe that E.H. was armed with a dangerous weapon. There was no testimony, for example, that the officer observed a bulge in E.H.’s pocket or made any other observation which caused him to believe that a dangerous weapon might be present.
We also are concerned with officer safety. But that concern can not justify searching passengers in vehicles stopped for traffic offenses under the facts of this case.
REVERSED and REMANDED.
DAUKSCH and W. SHARP, JJ., concur.
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Hines v. State, 737 So. 2d 1182 (Fla. 1st DCA 1999)…on, and there is no suspicion of criminal activity, the officer may not, without more information, detain the individuals) longer than is reasonably necessary to issue a citation. Cresswell v. State, 564 [*1186] So. 2d 480 (Fla.1990); E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991) (officer’s pat-down search of passenger in vehicle stopped for issuance of traffic citation was improper, absent any indication or suspicion, of criminal activity; defendant’s mere act of reaching into his pocket did not justify…
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Hatcher v. State, 834 So. 2d 314 (Fla. 5th DCA 2003)…sion of the drugs and weapon. The Stop And Frisk The commission of a traffic infraction gives the police the right to stop a vehicle and issue the offending driver a citation. See State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001); E.H. v. State, 593 So. 2d 243, 244 (Fla. 5th DCA 1991) (“A non-criminal traffic violation justified the temporary detention solely for the purpose of issuing a citation.”) (citing Cresswell v. State, 564 So. 2d 480 (Fla.1990)); see also Welch v. State, 741 So. 2d 1268 (Fla. 5th…1 / 2
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Thomas v. State, 644 So. 2d 597 (Fla. 5th DCA 1994)…ock cocaine from the defendant’s shirt pockets because he never asserted that he believed the defendant was carrying a weapon and it would have been unreasonable for him to believe that the small objects seized were weapons); see also E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991) (when a defendant was stopped for a noncriminal traffic violation which justified only a temporary detention solely for the purpose of issuing a citation and, although the officer expressed concern that E.H. kept reaching into hi…
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- Cresswell v. State, 564 So. 2d 480 (Fla. 1990)