FREDDIE NESMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Freddie Nesmith appeals his convictions for cocaine possession with intent to sell and obstructing an officer with violence, challenging the legality of his detention. The court holds that police lacked founded suspicion to detain Nesmith based solely on his presence in a high-crime area, leaning into a car, and fleeing when officers approached, requiring reversal of the cocaine conviction but affirming the obstruction conviction.
The court holds that the officers lacked founded suspicion to detain Nesmith. Observation of a person in a high-crime area leaning into a stopped car, holding an unidentifiable object, and fleeing when officers approach is insufficient for founded suspicion. The cocaine conviction is reversed because the detention was illegal and the cocaine was abandoned as a result of that illegal detention. However, the obstructing an officer conviction is affirmed because use of force in resisting arrest is unlawful regardless of the technical illegality of the arrest.
[1] A police officer must have a founded suspicion of criminal activity to justify a temporary detention; a mere or bare suspicion is insufficient.
[2] Observations of a person in a high crime district, leaning into a stopped car, who walks away upon seeing an officer approach, do not alone constitute a founded suspicion…
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Join FLexlaw to unlock all legal intelligence“To justify a temporary detention, an officer must have a founded suspicion of criminal activity; a mere or bare suspicion is not sufficient.”
Establishes the legal standard for detention under Florida law
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Join FLexlaw to unlock all legal intelligenceFour Tampa Police officers in an unmarked van observed Nesmith leaning into a parked car in a drug-activity area, holding an unidentifiable object. Wh…
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THREADGILL, Judge.
Freddie Nesmith pleaded nolo contendere to charges of possession of cocaine with intent to sell or deliver1 and obstructing or opposing an officer with violence,2 reserving his right to appeal the denial of his motion to suppress. On appeal, he argues that police officers did not have a founded suspicion of criminal activity upon which to detain him and that evidence obtained as a result of the illegal detention should have been suppressed. We agree and reverse the conviction for possession of cocaine. We affirm the conviction for obstructing an officer with violence.
Testimony presented at the suppression hearing revealed that four Tampa Police officers in an unmarked van observed Nes-mith leaning into a parked car speaking to a female. The area was known for drug activity. Nesmith had an object in his hand, but the officers could not tell what the object was. The officers pulled up next to the car, identified themselves as police officers, and Nesmith ran.
The officers chased Nesmith and found him hiding under a house. One of the officers pointed his pistol at Nesmith and ordered him out. Nesmith began to crawl away but the officer crawled under the house and pulled him out. Nesmith struggled, was subdued, handcuffed, and placed under arrest for resisting arrest. The officers found a baggie containing cocaine partially buried in the sand under the house in close proximity to where Nesmith was hiding.
At the conclusion of the suppression hearing, the trial court denied the motion to suppress, finding that the cocaine had been abandoned and that the officers would inevitably have discovered the cocaine. Following his plea, Nesmith was adjudicated guilty of both charges and placed on community control for two years. He filed this timely appeal.
A police officer may temporarily detain a person under circumstances which reasonably indicate the person has committed, is committing, or is about to commit a crime. Section 901.151, Fla.Stat. (1989). To justify a temporary detention, an officer must have a founded suspicion of criminal activity; a mere or bare suspicion is not sufficient. King v. State, 521 So. 2d 334 (Fla. 4th DCA 1988). A stop is not warranted based upon an officer’s observation of a person in a high crime district, leaning into the window of a stopped car, who walks away upon seeing an officer approach. Shackelford v. State, 579 So. 2d 306 (Fla. 2d DCA 1991); Dames v. State, 566 So. 2d 51 (Fla. 1st DCA 1990).
The arresting officer in the instant case testified that he suspected Nesmith was dealing cocaine because “it’s a known drug area, the way he was leaned into a parked car, and him taking flight when an officer arrived.” In addition, the officer testified that he saw an object in Nesmith’s hand, but he was unable to tell what the object was. These observations, without more, are not sufficient for a founded suspicion of criminal activity. Nesmith’s detention and the subsequent seizure of the cocaine were therefore illegal.
“An abandonment which is the prod-met of an illegal stop is involuntary, and the abandoned property must be suppressed.” State v. Anderson, 591 So. 2d 611 (Fla.1992) (citing Stanley v. State, 327 So. 2d 243 (Fla. 2d DCA 1976)). Similarly, in order to establish .that contraband is admissible as inevitably discoverable, the state must demonstrate that the evidence would have been discovered in the course of a legitimate investigation. State v. Griffith, 500 So. 2d 240 (Fla. 3d DCA 1986). Because Nesmith’s detention was illegal and evidence seized as a result thereof should have been suppressed, we reverse the conviction for possession of cocaine and remand with instructions to discharge Nes-mith for this offense.
We affirm Nesmith’s conviction for obstructing or opposing an officer with violence. The use of force in resisting arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest. Wallace v. State, 557 So. 2d 212 (Fla. 2d DCA 1990); Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978); § 776.051(1), Fla. Stat. (1989).
Affirmed in part; reversed in part and remanded.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur. . § 893.13(l)(a), Fla.Stat. (1989).
. § 843.01, Fla.Stat. (1989).
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State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994)…o others in a high-drug area in the evening, leaning into the window of a stopped car and attempting to leave upon seeing the officer when he did not see any money or drugs transferred between the juvenile and occupant of the car); Nesmith v. State, 616 So. 2d 170 (Fla. 2d DCA 1993) (officer’s observation of defendant in a known drug area, leaning into a parked ear with unidentified object in his hand and his flight when the officer approached did not provide the officer with a reasonable suspicion of crimina…
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Clauson Conway Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999)…orcement officer who is known, or reasonably appears, to be a law enforcement officer.” See Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). This statute makes it unlawful to resist an arrest even if the arrest is illegal. See Nesmith v. State, 616 So. 2d 170, 171-172 (Fla. 2d DCA 1993) (holding that the “use of force in resisting arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest”); Reed v. State, 606 So. 2d 1246, 1247 (…
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Awilda Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007)…e of justifiable use of force when resisting an arrest regardless of the legality of the arrest, to encounters between citizens and the police that did not involve arrests. See Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993); cf. Kaigler v. State, 913 So. 2d 1254, 1255 (Fla. 2d DCA 2005) (answering in the negative the question of “whether the illegality of a stop during which a suspect allegedly commits resisting with violence and battery of a…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Anderson, 591 So. 2d 611 (Fla. 1992)
- Stanley v. State, 327 So. 2d 243 (Fla. 2d DCA 1976)
- Dames v. State, 566 So. 2d 51 (Fla. 1st DCA 1990)
- Shackelford v. State, 579 So. 2d 306 (Fla. 2d DCA 1991)
- Basil King v. State, 521 So. 2d 334 (Fla. 4th DCA 1988)
- Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978)
- State v. Griffith, 500 So. 2d 240 (Fla. 3d DCA 1986)
- Johnie W. Wallace v. State, 557 So. 2d 212 (Fla. 2d DCA 1990)