Kenneth Leon DANIELS, Appellant, v. STATE of Florida, Appellee.
No. 88-926.
District Court of Appeal of Florida, First District.
May 16, 1989.
543 So.2d 363 (1989)
Robert A. Buttеrworth, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellee.
BARFIELD, Judge.
Kenneth Daniels pled nolo contendere to one count of possession of cocaine with intent to sell, specifically reserving his right to appeal the trial court‘s order denying his motion to suppress the cocaine seized during a stop and frisk. We hold that the evidence does not support the trial court‘s order, and we reverse Daniels’ conviction.
On December 12, 1986, at approximately 2:20 p.m., Tallahassee narcotics officers Greg Adams and Jay Etheridge observed 20 to 30 people gathered behind Crump‘s Tavern in Frenchtown. Riding alone in an unmarked police car, Adams аpproached the group from the rear, and Etheridge positioned himself in the front of the tavern. Daniels, who was part of the group, saw Adams enter the alley, and turning very suddenly, he ran into the rear door. The crowd dispersed and Adams alerted Etheridge on the police radio that a black male wearing a tan jacket had just run suspiсiously through the back door of the tavern.
Etheridge exited his car and walked toward the tavern. When he reached the front door, he encountered face to face in the doorway, a black male fitting the radio description and later identified as Daniels. Daniels had been looking behind him as if checking the back door, and he had both hands in the pockets of his waist-length jacket. Etheridge twice asked Daniels to remove his hands from his pockets, but Daniels removed only his left hand. Etheridge grabbed the right hand through the jacket and, as he began to turn Daniels around to start his frisk, a few rocks of crack cocaine fell from the jacket pocket to the ground.
At the supprеssion hearing, Officer Adams testified that Daniels looked very nervous and surprised when he saw the officer in the alley; and, that he suspected Daniels only because he lоoked suspicious and was the first one in the group to enter the tavern. Adams stated that in his past experiences on the crack cocaine squad, a large grоup gathered behind Crump‘s Tavern meant that the individuals were involved in drug deals. However, Adams did not observe anyone in the group possessing or using drugs, exchanging money or drugs; nor did he sеe any weapons. In addition, he did not know Daniels nor did he have any information regarding any criminal activity involving Daniels.
Officer Etheridge testified that initially he did not intend to conduct an investigatory stop, but because he encountered Daniels face-to-face and Daniels had his hands in his pockets, it was standard procedure to ask him to rеmove his hands. When Daniels refused, Etheridge had to grab him for the officer‘s own safety. In doing so he felt clumps of rocks which he suspected to
In denying the motion to suppress, the trial court fоund that Officer Etheridge did not intend to conduct a search for narcotics when he first encountered Daniels. Instead, the officer reasonably suspected that Daniеls possessed a weapon in that he confronted him with his hands in his pockets in a high crime area. At the point of confrontation, the officer had a right to stop and аsk for identification, and to ask Daniels to remove his hands for the officer‘s own protection. When Daniels refused to remove the other hand, Etheridge then had a well-founded suspicion that he was armed, and a pat-down search for a weapon was authorized.
The “Florida Stop and Frisk Law” authorizes a police officer tо temporarily stop and detain an individual based upon circumstances which reasonably indicate past, present or future criminal activity, for the purpose of ascertaining identity of that individual and investigating the circumstances giving rise to the officer‘s suspicions.
The trial court properly rejected the stop based upon any founded suspiciоn that Daniels was involved in drug activity. Although Officer Adams’ past experience as a crack cocaine specialist in that area led him to suspect that Daniels was involved in drug use or trafficking, Adams did not observe the exchange of drugs or money, nor did he know Daniels or suspect him of any other crime. It is well-established that flight from an approaching police officer, even in a high crime area, without more, does not give rise to a founded suspicion of criminal activity and does not justify a stop аnd frisk. Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989); Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988); Mosley v. State, 519 So.2d 58 (Fla. 2d DCA 1988); Antela v. State, 514 So.2d 423 (Fla. 3d DCA 1987); Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987); McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982); Jackson v. State, 319 So.2d 617 (Fla. 1st DCA 1975). Therefore, Adams’ radio dispatch, alone, could not serve as a reasonable basis for stopping Daniels.
In fact, the evidence established that Etheridge stоpped Daniels based on a suspicion that Daniels possessed a weapon. However, the officer failed to articulate any basis for suspecting criminal activity as required in order to justify a stop and detention under
The lawfulness of a pat-down search for weapons presupposes that the stop was valid and that the officer then formed a reasоnable suspicion, based on articulable facts, that the suspect was armed and dangerous. In the instant case, Officer Etheridge would have had no reason to fear for his own safety if he would not have impermissibly stopped Daniels in the first place.3 Etheridge articulated no more than a “bare” or “gut” feeling that Daniels was involved in criminаl activity, and his attempt to bootstrap the justification for the stop based on a belief that Daniels was possibly armed, is invalid under stop and frisk law.
Accordingly, we REVERSE Daniels’ сonviction for possession of cocaine with intent to sell.
SHIVERS and ZEHMER, JJ., concur.