LEWIS CECIL SANDER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lewis Cecil Sander Jr. pleaded nolo contendere to cocaine possession and resisting an officer, but appealed the denial of his motion to suppress the search that yielded the cocaine. The court held that the officer lacked reasonable suspicion to conduct a pat-down search after Sander removed his hands from his pockets as ordered, rendering the search illegal and requiring reversal.
Officer Gross lacked grounds to detain or search Sander once Sander removed his hands from his pockets, as Gross observed no bulges, threatening movements, or other articulable facts justifying a pat-down search. The illegal search was not saved by the fact that Sander's elbow struck the officer.
[1] A police officer's approach to an individual in a public place, without more, is a mere encounter and not an improper detention.
[2] An officer's request for an individual to remove their hands from their pockets during a consensual encounter is permissible.
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“However, once Sander removed his hands from his pockets as requested, Officer Gross had no grounds upon which to detain Sander further or search him. Gross observed no bulges and Sander made no threatening movements.”
Establishes that the officer's authority to conduct a pat-down search terminated once Sander complied with the order to remove his hands without any indication of weapons or danger.
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Join FLexlaw to unlock all legal intelligenceOn February 10, 1990, Officer Gross observed Sander run behind an apartment building in a high-narcotic area. When the officers approached the group o…
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RYDER, Acting Chief Judge.
Lewis Cecil Sander, Jr. pled nolo conten-dere to a charge of possession of cocaine and resisting an officer without violence, reserving his right to appeal the denial of his motion to suppress.
Officer Gary Gross stated in his deposition that on February 10, 1990, at approximately 3:30 p.m., he and Officer Bart Butler drove past a group of people at an apartment complex in a “high narcotic area.” Gross testified that he saw a man from the group run behind the apartment building. Gross drove his patrol car around the block and entered the complex parking lot from a less obvious entrance. When the officers pulled up to the group of people, Gross saw Sander, who he identified as the man he saw run.
Gross stated that on seeing the police car, Sander did not run, but stood near the group with his hands in his pockets. Gross and Butler got out of their car and walked up to Sander. Immediately upon reaching him, Gross ordered Sander to remove his hands from his pockets which Sander did. Gross testified that neither he nor Officer Butler saw a bulge or any indication which suggested to them that Sander was armed after he removed his hands from his pockets.
Gross then asked Sander his name and address which he correctly gave. When asked, Sander denied that he ran behind the building. Gross testified that he then told Sander to put his hands on his head. Gross then conducted a pat-down search. Gross testified that he conducted the search for officer safety reasons because of Sander’s conduct of running when the police first drove by, because the area was a “high narcotic area” and because Sander had his hands in his pockets until he removed them on Gross’ order. Gross testified that when he patted Sander’s left side, Sander jerked away and in so doing his elbow hit Gross in the ear. Gross then “grabbed [Sander] around the neck and threw him to the ground.” He advised Sander that he was under arrest, handcuffed him, took him to the patrol car and searched his left pocket where Gross found three rocks of cocaine.
Sander contends that Officer Gross lacked any founded suspicion of criminal activity to detain him initially, and that Officer Gross also erred in conducting a pat-down search of Sander. Officer Gross’ approach to Sander was not improper as a mere encounter. See State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991); State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990). Also, it was not improper for Gross to ask Sander to remove his hands from his pockets.
However, once Sander removed his hands from his pockets as requested, Officer Gross had no grounds upon which to detain Sander further or search him. Gross observed no bulges and Sander made no threatening movements. Cf. Brown v. State, 358 So. 2d 596 (Fla. 2d DCA 1978). There is nothing articulable that Gross could point to that gave him the right to pat down Sander. The illegal search is not saved by the fact that Sander’s elbow hit Gross. There was no founded suspicion of criminal activity. Accordingly, the case is reversed and remanded to the trial court for entry of an order granting appellant’s motion to suppress.
Reversed and remanded.
HALL and PATTERSON, JJ., concur.
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Johnson v. State, 785 So. 2d 1224 (Fla. 4th DCA 2001)…went beyond a consensual encounter and amounted to an investigatory stop for which there was an inadequate basis. See Weaver v. State, 548 So. 2d 1198, 1200 (Fla. 4th DCA 1989); Ruddack v. State, 537 So. 2d 701 (Fla. 4th DCA 1989); Sander v. State, 595 So. 2d 1099, 1100 (Fla. 2d DCA 1992). This line of authority includes cases where a person tries to evade an officer, who uses minimal force or display of authority to stop him. See, e.g., Johnson v. State, 610 So. 2d 581, 583 (Fla. 1st DCA 1992); Daniels v. St…
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Lang v. State, 671 So. 2d 292 (Fla. 5th DCA 1996)…84); Hill v. State, 561 So. 2d 1245, 1246 (Fla. 2d DCA 1990); State v. Arnold, 475 So. 2d 301 (Fla. 2d DCA 1985). Nor is it improper for an officer to ask a person to remove his hands from his pockets during a citizen encounter. See Sander v. State, 595 So. 2d 1099 (Fla. 2d DCA 1992). But this case turns on whether Lang had submitted to the deputy’s authority at the time he dropped the pill bottle. In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court held that a…
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R.J.C. v. State, 84 So. 3d 1250 (Fla. 4th DCA 2012)…t such a request, when made to ensure an officer’s safety, does not elevate a consensual encounter to a detention. See State v. Woodard, 681 So. 2d 733, 735 (Fla. 2d DCA 1996); Lang v. State, 671 So. 2d 292, 294 (Fla. 5th DCA 1996); Sander v. State, 595 So. 2d 1099, 1100 (Fla. 2d DCA 1992). Considering the facts and circumstances in this case, we have no difficulty concluding that appellant was “seized” when he complied with the deputy’s order to remove his hands from his pockets. The deputy’s request, which…1 / 2
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
- Brown v. State, 358 So. 2d 596 (Fla. 2d DCA 1978)
- State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990)
- State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991)