EUGENE HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1993-09-15
No. 92-01733
FRANK, C.J., and CAMPBELL, J., concur.
623 So. 2d 1240 Florida District Court of Appeal, Second District (1993) Caution
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Eugene Howard was convicted of cocaine and drug paraphernalia possession after a warrantless pat-down search. The Florida Second District Court of Appeal reversed, holding that the officer exceeded the scope of a lawful Terry frisk by continuing to search for evidence after determining no weapons were present.


Holding

The search was unconstitutional and exceeded the scope permitted under the Florida Stop and Frisk Law. Once Officer Link assured himself that no weapons were present, he was required to stop the search. The further manipulation of objects in the pocket to identify them as drugs was not authorized by any exception to the warrant requirement.


Headnotes

[1] A temporary detention of a person is justified when circumstances reasonably indicate that the person has violated a criminal law.

[2] A law enforcement officer may search a temporarily detained person for weapons only if the officer has probable cause to believe the person is armed with a dangerous weap…

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Key Quotes

“The Florida Stop and Frisk Law permits a law enforcement officer who has probable cause to believe a person he has temporarily detained is armed with a dangerous weapon to search that person "only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon."”

Establishes the limited scope of a lawful frisk search under Florida law

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Facts & Procedural History

Officer Walker conducted surveillance in a Lakeland neighborhood and observed Howard allegedly receive a small object during a brief hand-to-hand exch…

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

Eugene Howard pleaded nolo contendere to possession of cocaine and drug paraphernalia, reserving his right to appeal the denial of his dispositive motion to suppress evidence. He argues that the evidence was obtained during an illegal search and seizure. We agree and reverse.

At the suppression hearing, Officer Walker testified that he conducted concealed surveillance in a Lakeland neighborhood because of numerous complaints of drug sales. He saw Howard give another man money and the other man bump his right hand against Howard’s left hand. It appeared as if the man had given Howard a small object. As he walked away, Howard looked at the palm of his hand, but Officer Walker could not see what the hand contained.

Officer Walker described Howard to Officer Link over the police radio. Link approached Howard, who had his hand in his pocket. When the officer asked him to remove it, he did so immediately. Officer Link told Howard he was suspected of purchasing rock cocaine, which he denied. After reading him his Miranda rights, Link patted Howard down, using a groping action. He felt a solid object about the size of an eraser on a pencil and a cylindrical object with an opening at one end and a wiry substance that felt like steel wool at the other end. Based on his experience, Link believed the objects were drugs and paraphernalia. He removed rock cocaine, a cocaine pipe and a small razor knife from Howard’s pocket.

Under these facts, Officer Link was authorized to temporarily detain Howard. The Florida Stop and Frisk Law permits a temporary detention where circumstances reasonably indicate a person has violated a criminal law. § 901.151, Fla.Stat. (1991). Officer Walker’s observation of the exchange of money justifies such a stop. Winters v. State, 578 So. 2d 5 (Fla. 2d DCA 1991), review denied, 589 So. 2d 292 (Fla.1991). As in Winters, however, the search and seizure here was not justified.

The Florida Stop and Frisk Law permits a law enforcement officer who has probable cause to believe a person he has temporarily detained is armed with a dangerous weapon to search that person “only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon.” § 901.151(5), Fla.Stat. (1991). Officer Link admitted at the suppression hearing that Howard had done nothing to lead him to believe he was armed. Howard took his hand out of his pocket when the officer requested he do so. Although Link could not see the waistband of Howard’s shorts because his shirt tails were out, he could see his pockets and testified that there were no apparent bulges. Even if we assume that Link was authorized to pat Howard’s waistband and pockets to see if he were armed, once he assured himself that no weapons were present, he was required to stop the search. Winters. Moreover, the trial court found that Officer Link was not conducting a pat-down for weapons, but that he was “going for the evidence.” Such a search is not justified on the facts here, and, as such, the fruits of the seizure must be suppressed.

We note that the United States Supreme Court recently approved a limited “plain feel” exception to the Fourth Amendment’s warrant requirement. Minnesota v. Dicker son, — U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). This decision supports the result we reach here. As in this case, the officer in Dickerson conducted a pat-down search which revealed no weapons. He felt a lump in the defendant’s pocket that he “examined with [his] fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” — U.S. at -, 113 S.Ct. at 2133. Similarly, Officer Link felt a small object in Howard’s pocket, then “took and rolled the object between [his] fingertips to get a. better feel-” The Dickerson Court held that such a further search was not authorized by any exception to the warrant requirement. Because the search was constitutionally invalid, the seizure was likewise unconstitutional and its fruits were suppressed. — U.S. at -, 113 S.Ct. at 2139.

The trial court’s order denying Howard’s motion to suppress is reversed and this ease is remanded for further proceedings consistent with this opinion.

FRANK, C.J., and CAMPBELL, J., concur.


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Citator

Cited By

  • Revels v. State, 666 So. 2d 213 (Fla. 2d DCA 1995)
    …is unlikely to be an exchange for any small object other than crack cocaine. The fact that the officers witnessed two prior exchanges on this same evening adds to the circumstances supporting probable cause. In another recent case, Howard v. State, 623 So. 2d 1240 (Fla. 2d DCA 1993), this court implicitly ruled that a similar arrest following surveillance was not based on probable cause. In Howard, money was observed in the hand-to-hand transaction, but there is no indication in the opinion that a specific ho…
  • State v. Burns, 698 So. 2d 1282 (Fla. 5th DCA 1997)
    …l activity; and the right to conduct a pat-down if the officer reasonably believes the detainee is armed and dangerous. If there is no reason to believe that the defendant is armed, then there can be no reason for a pat-down search. Howard v. State, 623 So. 2d 1240 (Fla. 2d DCA 1993) (holding that observing one man giving another money and receiving something in return during a drug sale surveillance did not provide probable cause to search detainee for weapons). Without additional information of some type of…
  • Goudy v. State, 749 So. 2d 508 (Fla. 2d DCA 1999)
    …otective Terry search and became an impermissible generalized investigatory search without a warrant. Under similar factual patterns, this court has reached the identical result. See Cole v. State, 727 So. 2d 280 (Fla. 2d DCA 1999); Howard v. State, 623 So. 2d 1240 (Fla. 2d DCA 1993). [*510] I see no way to distinguish Minnesota v. Dickerson, Cole, or Howard from this case. Searches and seizures conducted outside the judicial process are per se unreasonable under the Fourth Amendment and may be sustained only…

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