EDWARD CONNER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court vacated a probationary sentence for marijuana possession because the officer lacked probable cause to search the defendant's shoe, as mere suspicion based on observed hand-to-shoe movement does not justify a warrantless search under Terry v. Ohio.
An officer's suspicion alone, without probable cause to believe the defendant was armed or about to commit a crime, is insufficient to justify a warrantless search.
[1] Suspicion, without probable cause to believe a person is armed with a dangerous weapon or about to commit a crime, is insufficient to justify a warrantless search under Terry v. …
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Join FLexlaw to unlock all legal intelligence“the only thing I could think of he'd be putting down there was a weapon”
Officer's testimony explaining his suspicion, which the court found insufficient to justify the search.
Conner was walking through a commercial alley when an officer observed him lift his hat, remove something, and place it in his shoe. The officer arres…
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SMITH, Judge.
Conner appeals from a probationary sentence following the trial court’s acceptance of his plea of nolo contendere to a charge of possession of marijuana, reserving Conner’s right on appeal to complain of the court’s order denying his motion to suppress as evidence the marijuana seized on his person.
Conner attracted the attention of the arresting officer while walking one morning, apparently aimlessly, through an alley of a commercial area. His manner aroused the officer’s suspicion. Then the officer observed him “lift his hat and take something out of it and bend down and put it in his shoe and then walk off.” The officer testified that “the only thing I could think of he’d be putting down there was a weapon” and said “I don’t really know that it was a knife or gun or ax or what.” The officer approached, commanded Conner to remove his shoe, and arrested him for possession of the marijuana that was revealed.
The record is barren 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The sentence is VACATED and Conner is DISCHARGED.
McCORD, C. J., and MILLS, J., concur.
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Citator
Cited By
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M. J. v. State, 399 So. 2d 996 (Fla. 1st DCA 1981)…a demand to disclose or produce a concealed object is treated as a search. State v. Oliver, 368 So. 2d 1331, 1335 (Fla. 3d DCA 1979), cert. dism. 383 So. 2d 1200 (Fla.1980). See also Hunt v. State, 371 So. 2d 205 (Fla. 2d DCA 1979); Conner v. State, 349 So. 2d 709 (Fla. 1st DCA 1977). Here, there was a demand to produce the cannabis before its actual production. Hence, there was a search. Of course, if the appellant initiated or invited the search, he could not validly object to that search. See State v. Wis…
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A.J.M. v. State, 746 So. 2d 1222 (Fla. 3d DCA 1999)…respondent was “armed and presently dangerous” so as to validate the pat down. Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Stitely v. State, 368 So. 2d 937, 938 (Fla. 3d DCA 1979)(Schwartz, J., dissenting); Conner v. State, 349 So. 2d 709 (Fla. 1st DCA 1977). I would therefore reverse.…
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Stitely v. State, 368 So. 2d 937 (Fla. 3d DCA 1979)…ecific and articulable facts which . . . reasonably warranted] . . . ” the search, Terry v. Ohio, supra, at 392 U.S. 21 at 88 S.Ct. 1880, 20 L.Ed.2d 905, requires, I believe, a determination that it was constitutionally unjustified. Conner v. State, 349 So. 2d 709 (Fla. 1st DCA 1977); cf. Perry v. State, 296 So. 2d 505 (Fla. 3d DCA 1974). Furthermore, the search in question was an impermissibly broad one. Assuming McClain was in fact reasonably concerned that Stitely had a weapon, that concern would have bee…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- Perry v. State, 296 So. 2d 505 (Fla. 3d DCA 1974)
- Baker v. State, 316 So. 2d 657 (Fla. 1st DCA 1975)