DANIEL JAMES MCELWAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel McElwain appeals the denial of his motion to suppress evidence from a patdown search conducted without reasonable suspicion that he was armed. The Florida appellate court reversed, holding that officers lacked justification for the search where the defendant initially refused consent and officers had no founded suspicion of criminal activity or belief he was armed.
The patdown search was invalid and unconstitutional because the officers lacked reasonable suspicion or probable cause to believe McElwain was armed or posed a threat. The search violated McElwain's Fourth Amendment rights, and the evidence obtained must be suppressed.
[1] A pat-down search is only permitted if the officer has probable cause to believe that the subject is an armed threat.
[2] Officers do not need justification to engage a citizen in conversation, but a pat-down transforms a consensual encounter into a stop.
Previewing 2 of 4 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“A protective, pat-down search in connection with an investigatory stop is only permitted if the officer has probable cause to believe that the subject is an armed threat.”
Establishes the legal standard required to justify a patdown search during an investigatory stop
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Join FLexlaw to unlock all legal intelligencePolice officers stopped McElwain while he was walking in an area known for narcotics activity and engaged him in conversation. McElwain initially refu…
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BLUE, Judge.
Daniel James McElwain challenges the denial of his dispositive motion to suppress following a no contest plea to possession of cocaine where he reserved the right to appeal. We agree that the officers had no justification for a patdown search; accordingly, we reverse.
This case is on all fours1 with the case of Cubby v. State, 707 So. 2d 351 (Fla. 2d DCA), review denied, 717 So. 2d 538 (Fla.1998). In both cases, the defendants were walking in areas known for narcotics activity when police officers stopped to talk with them. In both cases, the officers lacked any founded suspicion of criminal activity; nor did the officers have cause to believe that the defendants were armed. In Cubby, 707 So. 2d at 352, this court held that the patdown was invalid because the officers had no reasonable belief that the defendant was armed or involved in criminal activity. This conclusion was reached even though the defendant consented to the patdown. While officers do not need justification to engage a citizen in conversation, a patdown transforms a consensual encounter into a stop. See 707 So. 2d at 352. “A protective, pat-down search in connection with an investigatory stop is only permitted if the officer has probable cause to believe that the subject is an armed threat.” Id.
Even more compelling than the facts in Cubby, in this case Mr. McElwain refused consent for a search of his person. While we accept the trial court’s factual finding that he subsequently consented to a patdown, the trial court did not make a finding that the officers believed Mr. McElwain was armed. In fact, the officers testified that they had no reason to believe he was armed. Therefore, we conclude that the officers were not justified in conducting the patdown. See Cubby. See also Coleman v. State, 723 So. 2d 387 (Fla. 2d DCA 1999). Accordingly, we reverse the trial court’s order denying the motion to suppress.
Reversed.
CAMPBELL, A.C.J., and SALCINES, J., Concur. . "On all fours" is used to express the idea that a case is "squarely on point (with a precedent) on both facts and law; nearly identical in all material ways....” Black's Law Dictionary 1116 (7th ed.1999). Such a case could be referred to as a whitehorse case, or a gray mule, goose, or spoiled pony case. See Bryan A. Garner, A Dictionary of Modem Legal Usage 577 (1987). To this panel, the nature of the beast appeared to be a brown-and-white spotted cow.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lorenza Coleman v. State, 723 So. 2d 387 (Fla. 2d DCA 1999)
- Cubby v. State, 707 So. 2d 351 (Fla. 2d DCA 1998)