JOE NATHAN PERRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Perry appealed his conviction for carrying a concealed weapon, challenging the trial court's denial of his motion to suppress evidence obtained in a warrantless search. The Florida appellate court reversed, holding that the search violated the Fourth Amendment because the officer lacked probable cause to believe Perry was armed and dangerous.
The court held that the denial of the motion to suppress was reversible error. Under Florida Statute § 901.151, a police officer may only search a detainee if the officer has probable cause that the person is armed and dangerous and presents a threat to the officer's safety. The search of Perry was unlawful because the officer had no reason to believe Perry was armed and dangerous merely because he was standing next to someone for whom an arrest warrant existed.
[1] A defendant may reserve the right to appeal the denial of a motion to suppress even after entering a nolo contendere plea, provided the intent to appeal is made known to…
[2] Florida's stop and frisk law requires reasonable circumstances indicating a person has committed, is committing, or is about to commit a criminal violation before tempora…
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Join FLexlaw to unlock all legal intelligence“An examination of the record on appeal reveals that defense counsel advised the court that defendant planned on appealing the ruling on the motion to suppress and wished to be declared indigent for the purpose of hiring a public defender.”
Establishes that Perry did not forfeit his right to appeal the suppression ruling despite entering a nolo contendere plea
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Join FLexlaw to unlock all legal intelligencePerry was arrested and charged with carrying a concealed weapon after police conducted a search (frisk) of his person. The only basis for the frisk wa…
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PER CURIAM.
Defendant-appellant was informed against, plead nolo contendere, and was sentenced to 90 days in the county jail for carrying a concealed weapon.
On appeal, defendant contends the trial court erred in denying defendant’s motion to suppress the evidence obtained in violation of his 4th and 14th Amendment rights under the U. S. Constitution and his rights under the Florida Constitution, where none of the circumstances which justify a search under the Florida stop and frisk law were present.
Before disposing of this issue, we first turn our consideration to the argument of the state that upon defendant’s tender of his plea of nolo contendere and acceptance thereof .by the trial court, defendant-appellant failed to reserve his right to appeal the denial of his motion to suppress. We cannot agree. An examination of the record on appeal reveals that defense counsel advised the court that defendant planned on appealing the ruling on the motion to suppress and wished to be declared indigent for the purpose of hiring a public defender. See State v. Ashby, Fla. 1971, 245 So. 2d 225 and Ackles v. State, Fla.App.1972, 270 So. 2d 39.
With respect to the motion to suppress, we conclude that the denial thereof was reversible error. Fla.Stat. § 901.151, 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 so detained, a police officer must have probable cause that such person is armed and dangerous and therefore offers a threat to the safety of the officer before the officer may search such person.
The testimony of the arresting officer in the case sub judice clearly demonstrates that the only reason for “frisking” the defendant-appellant was the fact that he was standing next to one Yvonne Clark against whom there was an arrest warrant outstanding. Certainly, under these circumstances, the officer had no reason to believe that the defendant was armed and dangerous and therefore offered a threat to his safety. Cf. State v. Brooks, Fla.App. 1973, 281 So. 2d 55 at 56.
Accordingly, the judgment herein appealed is reversed.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Parker v. State, 363 So. 2d 383 (Fla. 3d DCA 1978)…ate that the individual is engaged in criminal activity, or the stop is illegal. Colodonato v. State, 348 So. 2d 326 (Fla.1977); Whitley v. State, 349 So. 2d 840 (Fla. 2d DCA 1977); State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976); Perry v. State, 296 So. 2d 505 (Fla. 3d DCA 1974). In our opinion, the provisions of Terry and Section 901.151 were violated in this case, and the evidence which was obtained as a result of the stop of the defendant was unlawfully seized. Whitley v. State, 349 So. 2d 840 (Fla. 2…
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Brown v. State, 355 So. 2d 138 (Fla. 3d DCA 1978)…225, 228 (Fla.1971); Nast v. State, 333 So. 2d 103 (Fla.2d DCA 1976); Tiller v. State, 330 So. 2d 792 (Fla.1st DCA 1976); Stanley v. [*140] State, 327 So. 2d 243 (Fla.2d DCA 1976); Wallace v. State, 321 So. 2d 97 (Fla.4th DCA 1975); Perry v. State, 296 So. 2d 505 (Fla.3d DCA 1974); Jackson v. State, 294 So. 2d 114 (Fla.4th DCA 1974). There is one essential limitation to the Ashby nolo rule applicable herein and that is the rule cannot be used by a defendant when the legal question on which he seeks appellat…
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Conner v. State, 349 So. 2d 709 (Fla. 1st DCA 1977)…rren of evidence that there was probable cause to believe Conner was “armed with a dangerous weapon which offers a threat to the safety of the officer or any other person . . . Baker v. State, 316 So. 2d 657, 658 (Fla. 1st DCA 1975); Perry v. State, 296 So. 2d 505 (Fla. 3d DCA 1974). There was no probable cause to believe Conner was about to commit a crime. Even giving full credit to the genuineness of the officer’s suspicion, suspicion is an insufficient predicate for the search. Terry v. Ohio, 392 U.S. 1, 8…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- State v. Brooks, 281 So. 2d 55 (Fla. 2d DCA 1973)
- Ackles v. State, 270 So. 2d 39 (Fla. 4th DCA 1972)