Blackburn v. StateBlackburn v. State
- Reporters:
- ,
- Before:
- Campbell
Aрpellant was charged by information with armed robbery. He filed a mоtion to suppress evidence (a nylon stocking and pistol) seized from him. The motion was denied. Thereafter, he entered a plеa of no contest to the charge, specifically reserving his right to appeal the denial of his motion to suppress. It was stiрulated that the issue on the motion to suppress was disposi-tive. Appellant asserts the trial court erred in denying the motion to suppress. We agree and reverse.
An employee of a cоnvenience store testified at the motion to suppress hearing that he was robbed by two men wearing stocking masks. In particular, his desсription of one man was a tall man who wore blue jeans. Due tо the mask he did not see the color of his hair nor did he see a сar. A clerk of another convenience store in the area called the Sarasota County Sheriff’s Department to statе that two men had purchased panty hose from him approximately two and one-half hours before the robbery. That employеe described one man as tall with bushy brown hair, wearing blue jeans with a short sleeve blue shirt. He said that they drove away in a dark sedan. The arresting deputy states that the neighboring Venice Police Depаrtment reported the second call to him and their description of the car was an “older brownish colored Plymouth.” Later the same night he saw a man pumping gas next to a “maroon colorеd Plymouth” at a store four miles from the robbery. The man was wearing a black shirt and dark pants. There was another man in the car that the оfficer could not see clearly.
*652It is questionable whether the stop of appellant was constitutionally permissible under seсtion 901.151, Florida Statutes (1981), the “stop and frisk law.” Neither appellant’s clothing nor his car fit the description given the officer. Still the officer followed and stopped appellant and his companion after appellant finished pumping gas. The deputy began а protective search without appellant’s consent. While searching for a weapon, he noticed a bulge in appellant’s shirt pocket. The deputy’s testimony is clear that as soоn as he felt the bulge he knew the object was not a weapоn. Nevertheless, he pulled the object out of appellant’s shirt pocket and found it to be a nylon stocking. He then placеd appellant and his companion under arrest. The officers who arrived later searched the car and found a pistol.
Regardless of whether the officer had a reasonable suspicion to justify the stop of appellant it was not permissible for him to seize the stocking after he knew it was not a weapon. At the hearing, the officer admitted that his seizure of the stocking from appellant’s person was not for his protection. Such a seizure is not permissible when the officer does not reasonably believе that what he is finding is a weapon. Dunn v. State, 382 So.2d 727 (Fla.2d DCA 1980); Harris v. State, 352 So.2d 1269 (Fla.2d DCA 1977).
Since the arrest of appellant based on the illegal seizure of the stocking was invalid so alsо was the resulting search of the automobile. The pistol found in the car was obtained as a result of an illegal search and as “fruit of the poisonous tree” is also inadmissible. Stanley v. State, 327 So.2d 243 (Fla.2d DCA 1976).
The judgment and sentence are reversed and the case is remanded for further proceedings consistent with this opinion.
RYDER, A. C. J., and DANAHY, J., concur.