No. 86-1264 | Fla. Dist. Ct. App. | Nov 3, 1987
Lead Opinion
After pleading nolo contendere to the charge of possession of cocaine, and reserving his right to appeal the trial court’s denial of his motion to suppress, defendant Juan Albert Antela filed his appeal. We reverse.
According to the police officer’s testimony at the suppression hearing, Antela and others were observed standing in front of a convenience store at which several robberies had recently occurred. When Antela noticed the officer in a marked police car, he left on his bicycle. The officer stopped Antela approximately two blocks from the store. After ascertaining that there was a warrant for Antela’s arrest, the police offi
The described circumstances “were clearly insufficient to give rise to anything more than a bare suspicion” of criminal behavior. Mullins v. State, 366 So. 2d 1162" court="Fla." date_filed="1978-12-07" href="https://app.midpage.ai/document/mullins-v-state-1607915?utm_source=webapp" opinion_id="1607915">366 So.2d 1162, 1163 (Fla.1978); see Cobb v. State, 511 So. 2d 698" court="Fla. Dist. Ct. App." date_filed="1987-08-18" href="https://app.midpage.ai/document/cobb-v-state-1743496?utm_source=webapp" opinion_id="1743496">511 So.2d 698, 12 F.L.W. 2033 (Fla. 3d DCA 1987); Parker v. State, 363 So. 2d 383" court="Fla. Dist. Ct. App." date_filed="1978-10-03" href="https://app.midpage.ai/document/parker-v-state-1102011?utm_source=webapp" opinion_id="1102011">363 So.2d 383 (Fla. 3d DCA 1978); Vollmer v. State, 337 So. 2d 1024" court="Fla. Dist. Ct. App." date_filed="1976-09-29" href="https://app.midpage.ai/document/vollmer-v-state-1851444?utm_source=webapp" opinion_id="1851444">337 So.2d 1024 (Fla. 2d DCA 1976), cert. dismissed, 347 So. 2d 432" court="Fla." date_filed="1977-06-16" href="https://app.midpage.ai/document/huskey-realty-v-dimension-four-international-ltd-7484746?utm_source=webapp" opinion_id="7484746">347 So.2d 432 (Fla.1977). Thus, the officer lacked sufficient grounds to stop Antela, and the trial court erred in denying the motion to suppress.
Reversed.
Dissenting Opinion
dissenting.
I respectfully dissent.
The police officer testified at the suppression hearing that he observed Antela loitering near a convenience store which had been the target of several recent robberies. The officer further stated that Antela left the scene immediately upon becoming aware of the officer’s presence. The officer’s stop of Antela was lawful since it is consistent with the type of preliminary inquiry police officers must conduct in loitering or prowling situations. See D.A. v. State, 471 So. 2d 147" court="Fla. Dist. Ct. App." date_filed="1985-06-11" href="https://app.midpage.ai/document/da-v-state-1817336?utm_source=webapp" opinion_id="1817336">471 So.2d 147 (Fla. 3d DCA 1986) (gist of loitering or prowling offense is that defendant loitered or prowled in a manner not usual for law-abiding individuals and that such loitering or prowling was under circumstances warranting an immediate concern for the safety of persons or property in the vicinity). The officer had a reasonable basis to stop Antela temporarily. Terry v. Ohio, 392 U.S. 1" court="SCOTUS" date_filed="1968-06-10" href="https://app.midpage.ai/document/terry-v-ohio-107729?utm_source=webapp" opinion_id="107729">392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Moss v. State, 512 So. 2d 328" court="Fla. Dist. Ct. App." date_filed="1987-09-15" href="https://app.midpage.ai/document/moss-v-state-7560163?utm_source=webapp" opinion_id="7560163">512 So.2d 328 (Fla. 3d DCA 1987). No search and no detention occurred until after the officer learned of the outstanding warrant and had lawfully arrested Antela. The subsequent search was, therefore, proper as incident to a lawful arrest.
For this reason, I would affirm the trial court’s order denying Antela’s motion to suppress.