State v. Hetland

• Decision Date: 24 January 1979
• Docket Number: No. 78-165,78-165
• Citation: 366 So.2d 831
• Parties: STATE of Florida, Appellant, v. Robert Leslie HETLAND, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 831

366 So.2d 831

STATE of Florida, Appellant, v. Robert Leslie HETLAND, Jr., Appellee.

No. 78-165.

District Court of Appeal of Florida, Second District.

Jan. 24, 1979.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.

Robert E. Jagger, Public Defender, and Ellen Irene Hoffenberg, Asst. Public Defender, Clearwater, for appellee.

DANAHY, Judge.

Can an anonymous tip provide the basis for a valid stop and frisk? That question was answered in the negative by this court in State v. Hendry, 309 So.2d 61 (Fla.2d DCA 1975). In the Hendry case, law enforcement officers received information from an unidentified passing motorist that some people in an automobile in Old Bridge Square had marijuana in their possession. A description of the car and the license tag number was given. A short time later law enforcement officers located a vehicle in Old Bridge Square matching the description which had been given. When the officers approached the vehicle, the defendant and other individuals got out of the vehicle and walked toward the officers. The officers advised them that they were to be detained because they were suspected of being in possession of marijuana. We disapproved that detention.

The facts in the instant case prompted us to re-examine our position in Hendry. We have concluded that a stop should not be found invalid solely because it is based on information received from an anonymous informant. Therefore, we recede from the decision in Hendry. We hold that the stop in the case before us was proper.

Pinellas County sheriff's deputies McClarren and Beymer were informed by their dispatcher via car radio that an anonymous phone call from an unknown female had been received, advising that a man named Robert Hetland was on his way to Cherry's Bar to shoot someone. The anonymous caller described Hetland as a white male, six feet tall, with dirty shoulder-length blonde hair, full beard and mustache, wearing a tank shirt, denim pants and a blue denim jacket. He was said to be carrying a silver revolver with a black handle.

The deputies proceeded at once to Cherry's Bar and entered. There was no commotion; all was quiet. Appellee was the only person sitting at the bar and there was nothing in his manner or actions which was suspicious. His appearance, however, was identical to the description which had been given by the anonymous informant.

Deputy McClarren approached appellee and asked him his name. He responded that his name was Robert Hetland. Deputy McClarren then asked appellee to stand up. As appellee proceeded to do so, Deputy McClarren saw the butt of a gun protruding from appellee's waistband just above the belt buckle. McClarren then asked appellee to place his hands on the bar, which he did. Thereupon, McClarren reached under appellee's shirt and removed a nickel plated revolver with five live rounds, wrapped in a brown paper towel. Appellee was promptly placed under arrest for carrying a concealed firearm.

Appellee moved to suppress the revolver as evidence against him on the ground that it was obtained from him by an unlawful search and seizure, in violation of the Florida Stop and Frisk Law ¹ and in contravention of appellee's constitutional rights. Understandably, in view of our decision in Hendry, the trial judge granted the motion to suppress. The state appealed, urging that this court follow the recent decision of the Third District Court of Appeal in State v. Francois, 355 So.2d 127 (Fla.3d DCA 1978).

In Francois, an unidentified individual told a police officer that a man inside a nearby bar was threatening to kill someone. The officer entered the bar, where the defendant was pointed out to him as the person making the threat. The officer asked the defendant to step outside the bar and then requested identification. During the questioning, the officer noticed a bulge on the defendant's leg. The officer reached down and removed a revolver. He then arrested the defendant for carrying a concealed firearm. The trial court suppressed the revolver as evidence on the ground that the search and seizure were unreasonable. The Third District Court of Appeal reversed. We agree with that decision insofar as the propriety of the stop is concerned. ²

In the instant case, the state put to us the question: "In a situation like this, what is a policeman supposed to do? He has information that a violent crime may take place which will result in serious injury or death. A response less than a stop and frisk would be no response at all. Must he ignore the information given?" Struck by that question, we determined to re-examine the issue. Our initial thought was that the decision in Hendry should simply not be extended to a situation in which the anonymous tip concerns the possession of a firearm. It seemed to us that a stop and frisk in such a situation, though based on an anonymous tip, might be justified by the danger posed by persons carrying concealed firearms. Our research was undertaken to determine whether there is authority supporting such a conclusion. We have found authority for the proposition that an anonymous tip can provide the basis for a valid stop not only where the criminal activity involved is dangerous to public safety, but also in other situations where the criminal activity is less threatening, such as in the case of a possessory offense.

"Stop and frisk" are words of art which first acquired meaning nonjudicially in the development of law enforcement procedures. In law enforcement parlance, a "stop" meant a temporary investigative detention of an individual short of arrest. A "frisk" meant the pat-down of an individual's outer clothing to determine whether he was carrying a weapon, a procedure not amounting to a complete search. As a matter of constitutional law, the validity of the initial stop is crucial in determining whether evidence seized as a result of the stop is admissible in a subsequent prosecution of the person stopped. Such evidence may be obtained as the result of a frisk following the stop, or as the result of the officer's observation upon making the stop, as in the instant case. Either circumstance may provide probable cause for an arrest followed by a search, or a search followed by arrest. Evidence may be seized as a result of such an ensuing search. Again, the admissibility of that evidence depends on the validity of the initial stop.

In 1967 the Court of Appeals of New York approved a stop and the seizure of a gun under circumstances very similar to those in the case now before us, based upon a New York "stop and frisk" law which that court had previously found constitutional. People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581 (1967). An appeal in that case to the United States Supreme Court was dismissed because the notice of appeal was not timely filed. Taggart v. People, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968).

In another case in 1968, however, the United States Supreme Court had occasion to consider and sanction the "stop and frisk" concept. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court ruled in Terry that, without a warrant and without probable cause to arrest or search, a law enforcement officer may nevertheless, under proper circumstances, forcefully restrain an individual's freedom to leave (a stop) and may conduct a protective search for weapons (a frisk). The Court held that a stop and frisk is not per se an unreasonable search and seizure forbidden by the Fourth Amendment to the United States Constitution. ³ The basic Terry principle is that a stop is permissible if based on a reasonable suspicion that criminal activity is afoot, and a frisk of the person stopped is permissible if the officer has reason to believe that the person stopped is armed and dangerous. Thus, under Terry, a frisk following a stop is not automatically permissible. The validity of a stop and the validity of a frisk are assessed separately, but a frisk can never be upheld if the initial stop was improper.

We pause to note that there was not actually a frisk of appellee Hetland in this case, although we feel confident that Deputy McClarren intended to conduct a frisk; it so happened, however, that he observed the gun in appellee's waistband rather than discovering it in the course of a frisk. Our focus in this case is on the question whether the stop was valid and we believe it was. For future application of our holding here, we feel it appropriate to observe that for the same reason the stop was valid, a frisk would have been justified.

Our conclusion in this case was reached after a careful study of the development in the courts of the principle expressed by the Supreme Court in Terry. Therefore, a summary of the subsequent history of Terry will explain the basis for our decision. We have also, of course, considered the effect of Florida law.

Following the decision in Terry, one writer raised the question whether an anonymous tip could be the basis for a valid stop and frisk. ⁴ Referring to and approving the decision in People v. Taggart, supra, he suggested that action on the basis of anonymous information should be allowed only in cases involving the risk of serious personal injury or grave irreparable property damage and should not be undertaken for the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as narcotics violations. ⁵ Under that reasoning, the reasonableness of a stop would be measured at least in part by the nature of the criminal activity involved. But as developed by the United States Supreme Court and other courts, the validity of a stop has not been measured in terms of the nature of the criminal activity involved, but rather on the information and circumstances known to the law enforcement officer.

The Terry case involved the personal observation by a law enforcement officer of conduct...