Jones v. StateJones v. State
Robert A. Butterworth, Atty. Gen., Tallahassee, and Judy Taylor Rush, Asst. Atty. Gen., Daytona Beach, for appellee.
DAUKSCH, Judge.
This is an appeal from a conviction for possession of drugs and appellant cites as error an order denying his motion to suppress. Appellant was charged with possession of cocaine and loitering and prowling. After he filed a motion to suppress, a hearing was held and the trial court denied his motion. He pled nolo contendere to the possession charge reserving his right to appeal the court‘s ruling on his motion to suppress. The state nolle prossed the loitering and prowling charge. The trial judge accepted appellant‘s plea and he was adjudicated guilty of possession and sentenced to serve a term of three and one-half years.
At the suppression hearing, Police Officer David Ellison testified that he was on patrol in the area of Second Avenue and Rose Street in Daytona Beach. Ellison observed
When Ellison pulled up to the alleyway between the grocery store and another business, appellant walked to a phone booth and stopped. He then walked away and started down the alleyway between the businesses. Ellison, suspicious, asked appellant to stop and talk to him; appellant did so but remained at a distance. He was nervous and appeared to have a clear plastic baggie clenched in his hand. Ellison was unable to observe the contents inside of the bag. Based on his years of experience, however, he was aware that drugs are very often carried in clear plastic baggies. Appellant advised Ellison that he lived on the next street over and that he was waiting for a friend. Ellison asked appellant if he had any identification; appellant said he did not.
Ellison exited his patrol car, walked up to appellant and told him that he would like to pat him down. He testified that appellant was free to go at this point. Other than the fact that appellant was nervous, Ellison saw nothing that suggested that he might be carrying a weapon. Appellant initially stepped away but then reached out, pushed Ellison and fled. Ellison, whose hands were at his side, fell to the ground and was unable to stop appellant. Officer Jody Palermo, who was observing the scene from across the street, pursued appellant on foot while Ellison pursued him in his car. Palermo eventually apprehended appellant and conducted a search incident to arrest.
At the conclusion of the hearing, the trial judge denied appellant‘s motion to suppress. The judge found that the officer had the right to question appellant but that under the factual circumstances present, he did not have the right to stop and frisk him or to detain him. He found further that under ordinary circumstances, anything found would have been suppressed. He found finally that although the officer also had the right to ask appellant if he could pat him down, appellant did not have the right to shove the officer. We agree that this is where appellant made a critical mistake.
Under the facts of this case, Officer Ellison was not initially justified in stopping appellant. The law states that a police officer may temporarily detain a person for the purpose of ascertaining his or her identity if the officer believes that the person has committed, is committing or is about to commit a criminal offense.
The fact that a person is merely in a known drug area is an insufficient basis to constitute a founded suspicion. G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985). See also Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); Morris v. State, 519 So. 2d 706 (Fla. 2d DCA 1988). Flight from an officer in a high crime area is also insufficient to give rise to a founded suspicion. Cobb v. State, 511 So. 2d 698 (Fla. 3d DCA 1987). See also Gipson v. State, 537 So. 2d 1080 (Fla. 1st DCA 1989); Bastien v. State, 522 So. 2d 550 (Fla. 5th DCA 1988). Even suspicious movements combined with flight from an officer are insufficient. Ruddack v. State, 537 So. 2d 701 (Fla. 4th DCA 1989). Finally, an officer‘s gut suspicion that a person may be engaged in criminal activity is also not enough. Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1989).
In this case, appellant was illegally detained and a reasonable person in his situation would have believed that he was
The problem in this case arises, however, because appellant committed a battery upon Officer Ellison. It is therefore necessary to determine whether appellant‘s use of force under the circumstances of this case was justified. It is well established that an officer may only frisk or pat down an individual incident to an investigatory stop when he has probable cause to believe that the individual is armed with a dangerous weapon.
The law further states that a person is not justified in using force to resist an arrest where it is reasonably believed that the person making the arrest is a law enforcement officer.
In Meeks v. State, 369 So. 2d 109 (Fla. 1st DCA 1979), the district court, citing to
The issue of whether the law enforcement officer was acting in the lawful performance of his duties is a question of fact. State v. Gilchrist, 458 So. 2d 1200 (Fla. 5th DCA 1984). Because appellant‘s battery upon Officer Ellison was illegal, it necessarily follows that the evidence seized was seized incident to a lawful arrest.
Evidence seized incident to a lawful arrest is admissible, Curry v. State, 532 So. 2d 1316 (Fla. 1st DCA 1988); State v. Gonzalez, 507 So. 2d 772 (Fla. 3d DCA 1987), and the fact that the officer was mistaken as to the proper reason is not critical. Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); Padron v. State, 449 So. 2d 811 (Fla. 1984);
AFFIRMED.
W. SHARP and GOSHORN, JJ., concur.