IN THE INTEREST OF J.B., A CHILD
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The court held that officers had reasonable suspicion for a Terry stop and patdown, but lacked justification to open a cigarette box found during the patdown. The trial court properly denied suppression of items found during the patdown but erred in denying suppression of marijuana found in the cigarette box.
[1] A police officer may conduct a protective frisk or "patdown" of a suspect if the officer has a reasonable, individualized suspicion that the suspect is armed and dangerou…
[2] A "founded suspicion" is sufficient to justify a Terry stop.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded nolo contendere to several charges, reserving the right to appeal the denial of his motion to suppress evidence. The evidence includ…
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PER CURIAM.
The opinion of this court issued December 29, 1993 is withdrawn and the following opinion is substituted. The motions for rehearing filed by appellant and the state, considered in light of this substituted opinion, are denied.
Appellant entered a plea of nolo contende-re to charges of tampering with a vending machine, petit theft, resisting arrest without violence and possession of marijuana. He reserved the right to appeal the trial court’s order denying his motion to suppress evidence obtained from his person. Appellant argues the police officers did not have a reasonable, individualized suspicion that appellant was armed and dangerous to justify a protective frisk or “patdown” pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Maryland v. Buie, 494 U.S. 325, 334 n. 2, 110 S.Ct. 1093, 1098 n. 2, 108 L.Ed.2d 276 (1990). We hold the officers had a founded suspicion to conduct a Terry stop and thereafter formulated a particularized suspicion based on “specific and articulable facts” to justify the resulting patdown. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the trial court properly denied appellant’s motion to suppress coins and a straw removed from his pocket.
We find merit, however, in appellant’s argument that the trial court erred when it failed to suppress marijuana discovered by a police officer when he opened and inspected a Marlboro cigarette box removed from appellant’s pocket. See C.H. v. State, 548 So. 2d 895 (Fla. 3d DCA 1989).
Accordingly, we affirm in part and reverse in part the trial court’s order denying appellant’s motion to suppress all evidence obtained from his person. We affirm appellant’s convictions of tampering with a vending machine, petit theft and resisting an officer without violence. We reverse appellant’s conviction for possession of marijuana and remand this cause for further proceedings.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, C.J., KLEIN, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
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Citator
Cited By
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Nicolus D. Harford v. State, 816 So. 2d 789 (Fla. 1st DCA 2002)…1989) (officer did not think cigarette package contained a weapon); Lencsak v. State, 579 So. 2d 882 (Fla. 2d DCA 1991) (no evidence that the officer had a reasonable suspicion that a paper bag contained a weapon); see also, In the Interest of J.B., 632 So. 2d 708 (Fla. 4th DCA 1994) (trial court erred in failing to suppress marijuana found when officer opened and inspected a Marlboro cigarette box removed from person’s pocket, citing C.H. v. State, 548 So. 2d 895 (Fla. 3d DCA 1989)). The state attempts to d…
Authorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- Maryland v. Buie, 494 U.S. 325 (U.S. 1990)
- C.H. v. State, 548 So. 2d 895 (Fla. 3d DCA 1989)