TAKERRY ONEAL DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2011-07-22
No. 5D10-2096
ORFINGER, CJ., and PALMER, J., concur.
67 So. 3d 1125 Florida District Court of Appeal, Fifth District (2011) Negative Treatment
Cited by 5 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

Takerry Davis appeals his convictions for drug paraphernalia, cannabis possession, and possession of a concealed weapon by a felon, challenging the legality of a protective patdown that yielded the contraband. The court reversed, holding that the officer lacked reasonable suspicion to conduct an investigatory stop and frisk based solely on Davis's lawful possession of a visible pocketknife.


Holding

The court held that the officer lacked reasonable suspicion to conduct the investigatory stop and patdown. Possession of a pocketknife, without more, does not create reasonable suspicion of criminal activity, particularly where the knife was openly visible, lawfully possessed, and Davis exhibited no furtive or threatening conduct.


Headnotes

[1] A police officer may conduct a lawful investigatory stop if the officer possesses a well-founded, articulable suspicion that a person has committed, is committing, or is…

[2] Possession of a pocketknife, without additional evidence of criminal activity or threatening conduct, does not alone establish reasonable suspicion for an investigatory s…

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Key Quotes

“Possession of a pocketknife, without more, does not create a reasonable suspicion that a citizen is involved in criminal activity.”

Establishes the core holding that lawful possession of a pocketknife alone cannot justify an investigatory stop

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Facts & Procedural History

On November 24, 2009, Officer McConnell observed Davis in a high-crime area courtyard and initiated a consensual conversation. During the conversation…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Takerry Davis timely appeals his judgment and sentences for possession of drug *1126paraphernalia,1 possession of twenty-grams or less of cannabis,2 and possession of a concealed weapon by a felon.3

These items of contraband were discovered by a law enforcement officer while performing a “protective patdown” of Davis and were the subject of Davis’ dis-positive pre-trial motion to suppress evidence.4

The State’s evidence established that on November 24, 2009, at approximately 2:46 p.m., Officer McConnell observed several individuals in the courtyard of a “complex” located in a “high-crime area.” McConnell stopped his patrol car, got out, and began to walk toward the individuals. As he neared the group, Davis began to walk away. McConnell caught up to Davis and asked if he could briefly talk to him. Davis stopped and started talking to the officer.

During the conversation, Officer McConnell observed a pocketknife clipped into one of Davis’ pants pockets. McConnell “secured” the pocketknife and “considered it necessary to patdown for weapons just to ... for my own safety....” Officer McConnell felt along the outside of a nylon bag being carried by Davis. The officer felt what he immediately recognized as a set of brass knuckles in the bag. The cannabis and drug paraphernalia were subsequently found on Davis’ person.

When questioned by defense counsel, Officer McConnell acknowledged that the patdown was done without Davis’ consent and that there was nothing unlawful about the pocketknife.

The Florida Supreme Court has explained that there are three levels of police-citizen encounters. The first level is typically referred to as a consensual encounter and involves only minimal police contact. During a consensual encounter, a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The second level of police-citizen encounter involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police officer may temporarily detain a citizen if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Id.; see also § 901.151, Fla. Stat. (2009). The officer’s suspicion must be a well-founded, articulable one. Popple, 626 So.2d at 186. Mere suspicion will not suffice. Id. The third level of police-citizen encounter is an arrest — which must be supported by probable cause that a crime has been or is being committed. Id.

Here, the contact between Officer McConnell and Davis began as a consensual encounter, but was transformed into an investigatory stop when the officer secured Davis’ pocket knife and commenced his “protective patdown.” Accordingly, to justify this investigatory stop, the State was required to show that Officer McConnell had a reasonable suspicion that Davis had committed, was committing, or was about to commit a crime. Popple; see also Kramer v. State, 15 So.3d 790 (Fla. 5th DCA 2009).

The State contends that because McConnell had already found Davis to be in possession of one weapon, the pocketknife, it was reasonable for him to suspect *1127Davis might have additional weapons. We reject the State’s argument. Possession of a pocketknife, without more, does not create a reasonable suspicion that a citizen is involved in criminal activity. In the instant case, there was no evidence that Davis had made any furtive movements, or engaged in any conduct that was threatening in nature. The pocketknife was apparently openly visible and its possession was entirely lawful. To accept the State’s argument would mean that an officer could “stop and frisk” any individual observed in possession of a pocketknife even where there was no evidence suggesting that criminal activity was afoot.

On remand, the trial court is directed to vacate the judgment and sentence and grant the motion to suppress.

REVERSED and REMANDED.

ORFINGER, CJ., and PALMER, J., concur.


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Citator

Cited By

  • Cole v. State, 190 So. 3d 185 (Fla. 3d DCA 2016)
    …cer), his abrupt turn of the car-into 'oncoming traffic and improper parking, and his.tight grasp on a pen in a manner which caused the officer to believe it could be used as a weapon. Additionally, this case is distinguishable from Davis v. State, 67 So. 3d 1125 (Fla. 5th DCA 2011). In Davis, the officer initiated a consensual' encounter with the defendant, who was standing in a “high-crime” area with several other individuals. The officer observed that the defendant had a pocketknife clipped into one of hi…
  • State v. Herron, 68 So. 3d 330 (Fla. 3d DCA 2011)
    …onducting a pat-down for weapons. As the Court says, however, in the absence of a founded suspicion of criminal activity or prior indication that the defendant was armed, the officer had no constitutional authority to do so. See also Davis v. State, 67 So. 3d 1125 (Fla. 5th DCA 2011).…
  • Stroud v. State (Fla. 2d DCA 2022)
    …Walker v. State, 514 So. 2d 1149, 1151 (Fla. 2d DCA 1987) (explaining that a protective search is allowed only to the extent necessary to disclose a weapon and may not ordinarily go beyond a pat down of the outer clothing); see also Davis v. State, 67 So. 3d 1125, 1126-27 (Fla. 5th DCA 2011) (rejecting the contention that possession of a pocketknife created a reasonable suspicion that the defendant might have additional weapons or was involved in criminal activity). the State shows "an unequivocal break in…

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