Bastien v. State

Decision Date31 March 1988
Docket NumberNo. 87-552,87-552
Citation13 Fla. L. Weekly 834,522 So.2d 550
Parties13 Fla. L. Weekly 834 Lesley BASTIEN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

Lesley Bastien appeals an order denying his motion to suppress evidence. Based upon approximately forty purchases of "rock" cocaine by confidential informants at the Heat Wave Bar in Reddick, Marion County, Florida, arrest warrants were obtained for nineteen black males. In order to serve these warrants, a SWAT team, comprised of numerous two-man squads, was organized. Each member of the SWAT team was clothed in camouflage uniforms and instructed to detain all persons in the bar's parking lot for "warrant identification."

Upon receiving a confidential tip that several of the persons for whom arrest warrants had been obtained were present in and around the bar, the SWAT team members converged on the area, shouting "Sheriff's Department, freeze!" Numerous persons began to flee, including Bastien. As he fled, two members of the SWAT team grabbed Bastien's arms, told him to stop, and asked him his name. The officers then "took him to the ground. 1 " As they did, the officers observed two concealed pistols protruding from the back of Bastien's waistband. After the weapons were seized, the officers discovered a film canister containing rock cocaine and some cash in Bastien's possession. No warrant had been obtained for the arrest or search of Bastien.

Bastien pled nolo contendere to one count of possession of cocaine while armed and two counts of carrying a concealed firearm, reserving his right to appeal the order denying his motion to suppress. The state stipulated that the evidence seized was essential to its proof and that the suppression question therefore was dispositive of the case. We reverse.

The admissibility of the cocaine and weapons in this case turns on whether the warrantless stop and forcible detention of Bastien was legally justified and permissible under the "stop and frisk" law, section 901.151, Florida Statutes. 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, Fla.Stat.; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As the Florida Supreme Court has noted, 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 (Fla.1986) (quoting United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). A "mere suspicion" or "hunch" is not enough.

In the present case, the detaining officers testified at the suppression hearing that they saw nothing suspicious or criminal about Bastien other than the fact he was running. One officer stated that he detained Bastien simply because he was the nearest person to him. Notwithstanding the implication of ancient precedent, 2 running (flight) alone does not justify a belief that an individual is engaged in criminal activity; nor will it justify an investigatory stop. See Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987) and cases cited therein. Nor is the bar's location in a "high crime area" a sufficient basis upon which to justify a Terry stop. Id. at 699-700. See also Walker v. State, 514 So.2d 1149 (Fla. 2d DCA 1987); Bartlett v. State, 508 So.2d 567 (Fla. 2d DCA 1987). Finally, the fact that the SWAT team members were attempting to serve arrest warrants on some of...

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15 cases
  • Harper v. State, 86-2853
    • United States
    • Florida District Court of Appeals
    • August 30, 1988
    ...plain view; nearby also was a butane torch commonly used in the preparation of crack. As is apparently their wont, see Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988), the officers immediately placed Harper face down on the floor and cuffed his hands behind him. He was asked his name an......
  • Poole v. State, 92-2617
    • United States
    • Florida District Court of Appeals
    • June 10, 1994
    ...DCA 1990); Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989); Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989); Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988); Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987).5 See Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); Jenkins v. Sta......
  • McMaster v. State
    • United States
    • Florida District Court of Appeals
    • March 30, 2001
    ...See, e.g., Pritchett v. State, 677 So.2d 317 (Fla. 1st DCA 1996); Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989); Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988). However, the United States Supreme Court has recently held to the contrary in Wardlow. Pursuant to the conformity claus......
  • Jones v. State
    • United States
    • Florida District Court of Appeals
    • November 29, 1990
    ...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 ......
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