D.O., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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D.O. appeals a probation disposition for drug possession after his motion to suppress evidence was denied. The court reversed, finding that the police officer lacked reasonable suspicion to conduct a pat-down search of D.O.'s pocket where marijuana and drug paraphernalia were discovered.
The motion to suppress should have been granted because the officer lacked a reasonable belief that D.O. was armed with a dangerous weapon, and merely seeing or feeling an unknown object is insufficient to justify a search or seizure.
[1] A warrantless search of a person's pocket is unlawful absent a reasonable belief that the person is armed with a dangerous weapon.
[2] The mere observation or feeling of an unknown object in a person's pocket does not establish probable cause for its seizure.
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Join FLexlaw to unlock all legal intelligence“if an officer does not articulate a reasonable belief that a person is armed with a dangerous weapon, suppression is required”
Establishes the legal standard for pat-down searches under Florida law
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Join FLexlaw to unlock all legal intelligenceD.O. was walking with a group of teenagers entering a gated residential complex where police officers were responding to an unrelated call. An officer…
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SILBERMAN, Judge.
D.O. appeals a disposition order placing him on probation for possession of cannabis and possession of drug paraphernalia. After his arrest on the charges, he filed a motion to suppress the evidence seized from him. The motion was denied, and he pleaded no contest and reserved his right to appeal the denial of his motion. We reverse.
The transcript of the suppression hearing reflects that D.O. was with a group of teenagers walking in from a beach to a gated residential complex. Two pohce officers were at the complex, responding to a call. Nothing in the record links the call to the teenagers’ presence at the complex or to any criminal activity.
The officers approached the teenagers to see what they were doing. One officer observed a black object showing from one of D.O.’s pockets, and she saw D.O. put his hand into the pocket. She asked D.O. what was in his pocket and to take his hand out. D.O. removed his hand from the pocket but did not respond to the question. The officer then patted the outside of D.O.’s pocket and squeezed the object. When she could not identify the object, the officer removed it from D.O.’s pocket. The object was a glass pipe, and marijuana was also found.
In her testimony, the officer candidly explained that she searched D.O. because she did not know what was in his pocket. As we have previously held, if an officer does not articulate a reasonable belief that a person is armed with a dangerous weapon, suppression is required. Marshall v. State, 827 So. 2d 392, 393 (Fla. 2d DCA 2002); Sutton v. State, 698 So. 2d 1321, 1323 (Fla. 2d DCA 1997). Without some indication that D.O. had a weapon, there was no valid basis for the search. See Sutton, 698 So. 2d at 1323.
The fact that the officer seized contraband from D.O. does not change the result. The officer did not know what was in D.O.’s pocket, and “merely seeing or feeling an unknown object” is not sufficient to show probable cause for seizure of an item. Doctor v. State, 596 So. 2d 442, 445 (Fla.1992).
Under the circumstances, the motion to suppress should have been granted. Accordingly, we reverse the disposition order and remand with directions that D.O. be discharged.
Reversed and remanded.
FULMER and WHATLEY, JJ., Concur.
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Citator
Cited By
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D.L.J. v. State, 932 So. 2d 1133 (Fla. 2d DCA 2006)…pposed to a pat-down based on a reasonable belief that D.L.J. was armed. “Pat-down searches performed routinely or for safety purposes only are constitutionally impermissible.” Hunt v. State, 700 So. 2d 94, 95 (Fla. 2d DCA 1997); cf., D.O. v. State, 832 So. 2d 256, 257 (Fla. 2d DCA 2002). In this appeal, the State argues that the stop was justified under Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and that therefore the officers were entitled to conduct the pat-down. We need not…
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Sosa-Leon v. State, 848 So. 2d 342 (Fla. 2d DCA 2003)…h criminal eohduct justifying a search of his person. Harris v. State, 790 So. 2d 1246 (Fla. 5th DCA 2001). Furthermore, an officer should not conduct a pat-down search unless he has an articulable suspicion that the suspect is armed. D.O. v. State, 832 So. 2d 256 (Fla. 2d DCA 2002). Here, the officer did not testify to any articulable suspicion that Sosa-Leon was armed in order to justify the pat-down. Rather, he testified that the search [*344] was one he routinely conducted under similar circumstances. Ac…
Authorities Cited
- Terrtric Doctor v. State, 596 So. 2d 442 (Fla. 1992)
- King v. State, 698 So. 2d 1321 (Fla. 4th DCA 1997)
- Sutton v. State, 698 So. 2d 1321 (Fla. 2d DCA 1997)
- Marshall v. State, 827 So. 2d 392 (Fla. 2d DCA 2002)