Baggett v. State

• Decision Date: 04 October 1988
• Docket Number: No. 88-527,88-527
• Citation: 13 Fla. L. Weekly 2257,531 So.2d 1028
• Parties: 13 Fla. L. Weekly 2257 Christopher Todd BAGGETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1028

531 So.2d 1028

13 Fla. L. Weekly 2257

Christopher Todd BAGGETT, Appellant, v. STATE of Florida, Appellee.

No. 88-527.

District Court of Appeal of Florida First District.

Oct. 4, 1988.

Michael E. Allen, Public Defender, and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Christopher Baggett appeals his conviction for carrying a concealed firearm in violation of section 790.01, Florida Statutes. Baggett contends the trial court erred in denying his motion to suppress the weapon seized as a result of his illegal stop and subsequent search. For the reasons stated below, we reverse.

Two hearings were held on the motion to suppress. Deputy Sheriff Fred Nye testified that on the night of October 12, 1987, he was patrolling an area that has numerous pawn shops, a couple of used car lots, and Escambia Motors, which had been the subject of two break-ins within the last month. Nye stated that around 1:45 a.m. he observed the defendant walking in the area, wearing dark clothing. Nye stopped Baggett and asked him where he was going and what he was doing in the area; Baggett responded that he was going home. Nye noticed Baggett putting his hand in his jacket and asked him if anything was wrong. When Baggett responded that he had a stomach ache, Nye requested that he step in front of the patrol car's headlights. Nye got out of the patrol car and noticed that Baggett was acting nervous and fidgety and again placed his hand back into his jacket. Concerned for his safety, Nye patted Baggett down and discovered a loaded firearm. Baggett was then arrested for carrying a concealed firearm.

On cross-examination, Nye stated that at the time he stopped the defendant he had no reason to believe that Baggett had committed or was about to commit a crime; rather, he stopped Baggett because he was a suspicious person. When asked what made Baggett a suspicious person, Nye stated, "Dark clothing, that hour of the night. He didn't look very old. He could have been a runaway. We always get BOLOs for what we call signal 8, runaways. I'll stop and ask" (R. 12). When questioned by the court as to the reasons for stopping Baggett, Nye stated "he looked younger than 18 years old. He looked like a juvenile and we had numerous runaway juveniles so any young people we stop and normally check them out" (R. 18). Nye testified that he would have stopped Baggett even if he looked much older because of the time of day, the dark clothing, and the particular area he was in.

The trial court denied the motion to suppress on the stated grounds that:

Here is a man walking down the street at quarter to 2:00 in the morning with, No. 1, dark clothing on; secondly, he's entitled to wear dark clothing, but he's also in a high crime rate area. And secondly, he looks like he may be young enough to be a runaway delinquent, so for that reason I'm going to deny the motion to suppress.

(R. 21).

At the second hearing, the 19-year-old appellant testified that on the night in question he was going home after visiting a friend. Baggett stated that he had his hand in his jacket because he was looking for cigarettes. When Deputy Nye got out of the car and asked him what he had in his jacket, Baggett handed Nye the gun because he didn't want any trouble. Baggett stated that Nye never asked him to step in front of the car, did not frisk him, and never asked him what he was doing.

The trial court again denied the motion to suppress, stating:

[The defendant] looks several years younger than 19 and I think the sheriff would have been justified in stopping to check the identity of this person and his status, whether he's a runaway or whatever the situation might be. So for that reason I'm going to deny the renewed motion to suppress.

(R. 34-35). Baggett pled nolo contendere to the charge, reserving his right to appeal the denial of the motion to suppress. Adjudication of guilt was withheld and appellant was placed on two years' probation, with the condition that he forfeit the gun and pay court costs of $235.50.

The issue in this case turns on whether the stop and search of appellant was justified and permissible under the "stop and frisk" law, § 901.151, Fla.Stat. (1987). To justify such a stop and detention, a law enforcement officer must have a "founded suspicion" based upon factual observations in light of his knowledge and experience that the person has committed, is committing, or is about to commit a crime. § 901.151; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer's assessment of the totality of the circumstances "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Tamer v. State, 484 So.2d 583, 585 (Fla.1986). A ...