Alexander v. State
| Decision Date | 07 May 1997 |
| Docket Number | No. 96-0606,96-0606 |
| Parties | 22 Fla. L. Weekly D1139 John ALEXANDER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Steven Groves, Assistant Attorney General, Fort Lauderdale, for appellee.
We reverse Appellant's judgment and sentence, concluding that it was error to deny his motion to suppress.
Taking the facts most favorably to the state, Appellant was standing in a public area next to a truck in a group of people at approximately 9:00 p.m. Several officers stopped their vehicles and approached one of the men. An officer observed Appellant with his hands in the waistband of his jeans looking over his shoulder at the conversation. The officer ordered Appellant to remove his hands from his waistband. The officer did not observe any evidence of weapons on Appellant, such as a bulge in his clothing, nor was there any evidence of illegal activity in the immediate vicinity. The officer merely testified that:
Well ... I observed [the Appellant's] back towards me. He was intently watching Deputy Chambliss and looking back at myself and Deputy Adamson. While doing so, he had both of his hands concealed in front of him in his waistband area. It looked, it appeared to me he was intently grabbing or reaching for something.
* * * * * *
I mean, he was just looking back and forth very nervously, back and forth behind him to us, back to Deputy Chambliss, behind to us once again, back to Deputy Chambliss.
Stating that he feared Appellant might have a weapon, the officer grabbed Appellant and placed his hands on the hood of a car and began a "pat down." Appellant broke free and began to run away. The officers observed Appellant shove a container in his mouth, so they tackled him and found cocaine.
The state asserts that Appellant's behavior, by standing with his hands moving in his waistband and nervously looking over his shoulder at the officers, supports a seizure and search for weapons. The cases cited by the state, including Lightbourne v. State, 438 So.2d 380 (Fla.1983); Richardson v. State, 599 So.2d 703 (Fla. 1st DCA 1992); Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989), together with two opinions from this district, Joseph v. State, 647 So.2d 1038 (Fla. 4th DCA 1994), and Wilson v. State, 569 So.2d 516 (Fla. 4th DCA 1990), are either distinguishable or otherwise support reversal.
In Lightbourne, the court upheld a pat down search during a consensual encounter based on the defendant's furtive conduct. However, in Lightbourne, the officer's initial contact with the defendant was justified, because the officer was responding to a call to investigate a suspicious car which matched the description of the car in which the defendant was found. The court emphasized that the police had a good reason to be questioning the defendant and had not simply approached the defendant on "their own 'hunch' as in the 'roving patrol' cases." Id. at 387. See also Richardson (defendant was lawfully stopped for an infraction when his furtive conduct, coupled with unsatisfactory responses to the officer's inquiry about a bulge in his clothing, supplied articulable facts to support a reasonable conclusion that he was armed); Joseph (stop and frisk justified where deputies observed two men in a high crime area run away upon observing the officers; one man yelled "police, raiders or heat," and the defendant stuffed both hands in his waistband). In the instant case, however, the officers' initial contact with Appellant was not justified since there was absolutely no evidence of suspicious or unlawful activity, and no facts to support a reasonable conclusion that Appellant was armed.
Also distinguishable is Wilson, where this court upheld a stop and frisk based on sudden furtive movements and subsequent flight. In Wilson, an officer was walking through a bar with a reputation for violent crimes when he encountered the defendant walking down the hallway. The officer observed the defendant take quick, evasive action after he spotted the officer, and quickly turn and walk back towards the restroom. As he was turning, the defendant made a sudden, furtive hand movement to the front area of his pants as if he was reaching for a gun. The officer, who had fourteen years of experience, was concerned for his safety and therefore stopped and frisked the defendant. This court upheld the search, finding that the defendant's sudden movements, coupled with the officer's years of experience, was sufficient to find reasonable suspicion. We recognize that Wilson may be interpreted as conflicting with this opinion. However, it is distinguishable in that the suspect's conduct was significantly more threatening considering the totality of the circumstances. Wilson should not be read as granting authority, carte blanche, for officers' seizing persons on the hunch that otherwise common place actions or movements pose an undifferentiated threat.
There is substantial authority recognizing the type of activity or observations that will not support a pat down search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or section 901.151, Florida Statutes. It is well-established that suspicious movements and flight are, without more, insufficient to support a lawful stop. Breedlove v. State, 605 So.2d 589 (Fla. 4th DCA 1992); Palmer v. State, 625 So.2d 1303, 1306 (Fla. 1st DCA 1993); Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989); Britt v. State, 673 So.2d 934 (Fla. 1st DCA 1996).
The Florida Supreme Court in Popple v. State, 626 So.2d 185 (Fla.1993), reversed a conviction where a defendant's furtive movements were insufficient to create a reasonable suspicion to justify an investigative stop. In Popple, the defendant was sitting in a legally parked car where a sheriff's deputy approached from the rear. The deputy noticed the defendant making furtive movements and asked the defendant to exit his vehicle. When the defendant opened the door, the officer saw a cocaine pipe in plain view. The court held that the contraband should have been suppressed because the defendant's furtive movements did not provide the requisite reasonable suspicion to...
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