White v. StateWhite v. State
Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
BARFIELD, Judge.
John L. White, Jr. appeals his conviction for possession of marijuana and cocaine. He pled nolo contendere while reserving his right to appeal the denial of his motion to suppress evidence.
The issues presented in this appeal are whether the trial court erred in denying the motion to suppress on grounds that the officer had probable cause to arrest White for loitering or prowling and whether the search was permissible and the evidence admissible on other grounds.
On September 6, 1983, Officer Frank Munday of the Jacksonville Sheriff‘s Office was on patrol at approximately 1 a.m. when he observed a vehicle parked at the side of the Northside Jacksonville Health Clinic, which is apparently adjacent to a school where there had been several burglaries. Munday shined his bright lights and his spotlight on the car and did not see anyone inside it. He approached the vehicle and found the defendant soundly asleep in the driver‘s seat, which was fully reclined. The officer recognized the defendant but had no information that he was armed or dangerous. Munday approached the car and identified himself as police, but White remained asleep. The officer concluded that the suspect was either intoxicated or sick, and shook him and asked if he needed assistance. White woke up and answered negatively. Munday asked him to exit the auto and to produce some identification. White agreed to produce the identification, but never did. Rather, he insisted on going home and became verbally “very abusive and very defensive“. At the hearing (but not in an earlier deposition) Munday stated that he then suspected that White was waiting for someone who was engaged in criminal activity in the back of the building. Munday felt he had grounds to arrest White for prowling at this time.
The officer got White out of the car and got him to place his hands on the car for a pat down. White pushed back and Munday had to use some force to accomplish the pat down. Munday felt something in White‘s front pants pocket and reached in and found a folded small manila envelope. He squeezed the envelope so he could observe the contents and concluded that it was marijuana. Officer Munday‘s testimony regarding his impression of the contents of the pocket was equivocal. He said he did not know what it could have been, but that it possibly could have been a knife or a gun. He admitted, however, that he knew it was not metal or wood. On cross-examination, he stated that he thought it might be powder that could be thrown in his eyes or plastic explosives. He admitted that he had never arrested anyone in possession of plastic explosives.
At this point, appellant was arrested and placed in the patrol car. When asked, he told the officer that he wished to leave his
We reverse the trial court‘s denial of the motion to suppress. Officer Munday did not have probable cause to arrest for prowling or loitering and there were no other grounds to conduct a full search. Even if a stop and pat down pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), were permissible, the officer did not have a reasonable belief that the object in appellant‘s pocket was a weapon.
White‘s conduct cannot possibly be construed to be that prohibited by
The officer‘s testimony that he thought the object in appellant‘s pocket was a weapon is far-fetched. He carefully avoided saying that he knew it was not a weapon, but he admitted it was soft and not metal or wood. His “plastic explosives” theory is incredible given the circumstances; it defies reason to suspect the defendant was a potential terrorist. While Officer Munday did say he had powder thrown in his face previously, if this explanation is permitted, nearly anything found in a pat down will become admissible. This flies in the face of the Supreme Court‘s opinion in Terry v. Ohio, supra, as well as Florida precedent. See Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982); Meeks v. State, 356 So.2d 45 (Fla. 2d DCA), cert. denied, 364 So.2d 892 (Fla. 1978); and Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).
There being no other grounds for the search of appellant‘s person and vehicle, the evidence was improperly seized and the motion to suppress should have been granted.
The decision of the trial court is REVERSED.
JOANOS and WIGGINTON, JJ., concur.