LELAND CLAYTON WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant appealed his conviction for unlawful possession of a narcotic drug and possession of implements for narcotic usage, challenging the search of his person as violating his Fourth Amendment rights and arguing the sentence was illegal. The appellate court affirmed the conviction but modified the sentence by eliminating the probation provision.
The court held that the officer's observation of the bulge in the defendant's pocket was sufficient to support a belief that the defendant was armed, justifying the pat-down search under the Fourth Amendment. The court agreed that the sentence was illegal and modified it to eliminate the probation provision.
[1] A police officer may conduct a pat-down search of a person if the officer has a reasonable belief that the person is armed and dangerous.
[2] The observation of a bulge in a person's pocket, coupled with the time of day and location, can be sufficient to support a belief that the person is armed.
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“we find that the officer's observation of the 3Yi!' bulge in appellant's pocket was sufficient to support the belief that the appellant was armed”
The court's holding that justified the pat-down search as a lawful Fourth Amendment protective frisk.
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Join FLexlaw to unlock all legal intelligenceAn officer approached the defendant and his companion at 8:40 p.m. on Biscayne Boulevard in Miami while looking for a particular female. The officer o…
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PER CURIAM.
Defendant-appellant was informed against, tried non-jury and adjudicated guilty of (1) unlawful possession of a narcotic drug and (2) possession of implements for narcotic usage. He was sentenced to seven months in the county jail and thereafter placed on probation for four years.
On appeal, defendant-appellant basically contends that the trial court erred in denying his motion to suppress on the grounds that the evidence was seized in violation of the defendant’s rights under the Fourth and Fourteenth Amendments to the U.S. Constitution*.
The record reveals the following facts leading to the search of the defendant’s person. On the night in question, the arresting officer testified that he was looking for a certain female whose description defendant’s companion fitted. He approached the defendant and his companion to make an identification check. While the officer was speaking to the female, he turned to look at the defendant and observed protruding from defendant’s pocket, a bulge of approximately three and one-half inches in length which appeared to the officer to be a knife. Thereupon, he proceeded to pat down the defendant and removed the object which was a syringe. Defendant was placed under arrest and a further search was conducted at which time two packets containing heroin also were found on the person of the defendant.
In light of the above circumstances and considering also the time of day, 8:40 p. m., the location, Biscayne Boulevard in Miami, and the fact that he was alone, we find that the officer’s observation of the 3Yi!' bulge in appellant’s pocket was sufficient to support the belief that the appellant was armed. See Thomas v. State, Fla.App.1973, 250 So. 2d 15 and cases cited therein. Thus, this argument of appellant must fail.
Defendant also contends that the sentence is illegal.' We agree and hereby modify the sentence to eliminate therefrom the provision for probation. See Hutchins v. State, Fla.App.1973, 286 So. 2d 244.
We have considered appellant’s remaining points on appeal and find them to be without merit.
Accordingly, the judgment and sentence as modified is affirmed.
Affirmed.
MOORE, JOHN H. II, Associate Judge
(concurring in part and dissenting in part).
I concur in the opinion of'the majority that the sentence in this cause is illegal and agree that the cause should be remanded with directions to eliminate the provision for probation.
It is my opinion however that the evidence in this cause should have been suppressed and I therefore respectfully dissent. There is no need to reiterate the facts or to recite Florida Statute 901.151, F.S.A., the “Florida Stop and Frisk Law.” F.S. 901.1 SI, F.S.A. requires circumstances reasonably indicating that a person has committed, is committing, or is about to commit a violation of the criminal laws before he can be detained temporarily. Once detained under such circumstances a law enforcement officer must have probable cause that such person so detained is armed and dangerous and creates a safety hazard to the officer before the officer may search or “frisk” him.
Appellant was merely standing by minding his own business while the officer interrogated his companion. Upon seeing a bulge in appellant’s pocket (and the record fails to disclose any other “unusual” conduct) the officer decided to frisk him. Certainly a bulge in a pocket without other unusual conduct as was indicated in Thomas v. State, Fla.App.1971, 250 So. 2d 15, is not such a circumstance which would lead a reasonable and prudent man to the conclusion that a person is armed.
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Citator
Cited By (13 total)
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McNAMARA v. State, 357 So. 2d 410 (Fla. 1978)…116. We find that under the circumstances present in the instant cause, the officers had probable cause sufficient to justify the frisking of appellant for their own safety. Cf. Wilson v. State, 324 So. 2d 700 (Fla. 4th DCA 1976), Williams v. State, 294 So. 2d 37 (Fla. 3rd DCA 1974), cert. den. 299 So. 2d 602 (Fla.1974), State v. Brooks, 281 So. 2d 55 (Fla. 2d DCA 1973), State v. Woodard, 280 So. 2d 700 (Fla. 2d DCA 1973).- In determining the reasonableness of the governmental search of a citizen’s person, t…
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Dunn v. State, 382 So. 2d 727 (Fla. 2d DCA 1980)…permissible so long as the officer reasonably believes the object which he is acquiring might be a weapon. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Lyles v. State, 312 So. 2d 495 (Fla. 1st DCA 1975); Williams v. State, 294 So. 2d 37 (Fla. 3d DCA 1974). Finally, we reject the state’s argument that even if the search of appellant was invalid under the stop and frisk law, we should uphold it as a search of the immediate area incident to the arrest of Bailey. We do not believe tha…
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State v. Raunel Ramos, 378 So. 2d 1294 (Fla. 3d DCA 1979)…thereafter conduct a carefully limited, self-protective search of the outer clothing of the person involved for concealed weapons. McNamara v. State, 357 So. 2d 410 (Fla.1978); State v. Francois, 355 So. 2d 127 (Fla.3d DCA 1978); Williams v. State, 294 So. 2d 37 (Fla.3d DCA 1974); State v. Woodard, 280 So. 2d 700 (Fla.2d DCA 1973); Thomas v. State, 250 So. 2d 15 (Fla.1st DCA 1971). These decisions rest on sound ground as the police must be able, based on limited evidentiary showings, to act swiftly to disar…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 250 So. 2d 15 (Fla. 1st DCA 1971)
- Hutchins v. State, 286 So. 2d 244 (Fla. 3d DCA 1973)