Brown v. State, 95-3030
| Decision Date | 06 December 1996 |
| Docket Number | No. 95-3030,95-3030 |
| Citation | 687 So.2d 13 |
| Parties | 21 Fla. L. Weekly D2582 Elbert BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Andrea J. Surette, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
The defendant, Elbert Brown, filed a motion to suppress cocaine, drug paraphernalia, a Lipton iced tea can and certain admissions on the ground that the traffic stop which preceded the search and seizure of the evidence was violative of section 901.151, Florida Statutes (1995) [Stop and Frisk Law]. The trial court entered an order denying the motion to suppress as to the items, but granted it as to the admissions made by the defendant. The defendant entered a plea of nolo contendere to the charge of possession of cocaine, specifically reserving his right to appeal the trial court's partial denial of his motion to suppress. We reverse because the facts do not establish that Deputy Behringer had a founded suspicion of criminal activity before detaining the defendant.
Deputy Scott Behringer of the Brevard County Sheriff's Office testified that on March 3, 1995, he was traveling in a marked patrol vehicle southbound on John Rodes Boulevard at 6:40 p.m., just before dusk, when he observed a pickup truck backing into a wooded area near a canal. Deputy Behringer was suspicious because there had been several previous complaints of individuals dumping trash in this area and problems with burglaries in a nearby housing development. Although Deputy Behringer assumed that the truck was going to dump some materials, he did not see any materials in the back of it. He testified that he "couldn't see any materials in the back of the truck because he was backing into the wood line." He turned his patrol vehicle around and proceeded along the canal about fifty yards. After walking a short distance, he returned to his patrol vehicle and continued further. He subsequently parked on the pathway between the truck and the canal. Upon exiting his patrol vehicle he observed a white male inside of the truck. As Deputy Behringer approached, he saw the defendant bend over in a position as if his hands were between his legs. Just before he arrived at the passenger side of the truck, the defendant looked at him with surprise and "immediately made a furtive movement real quick to the middle of the bench seat." Deputy Behringer testified, "he looked over [to his right] like this and with his hand as [if] to hide something." At that time, Deputy Behringer became alarmed that the defendant might have a weapon.
Concerned for his safety, Deputy Behringer asked the defendant to exit his vehicle and to show him his hands. He asked the defendant why he was there, and the defendant replied that he was just sitting there. As the defendant emerged from the truck, Deputy Behringer saw the top of a Lipton iced tea can between his legs. When the defendant pulled it from between his legs, Deputy Behringer could see that it was partially bent or crushed and that it had several small holes in it. Still concerned for his safety, Deputy Behringer patted down the area, characterized by him as a "vehicle frisk" of the "wing spanned area," in which the defendant had made the furtive movement. The defendant stood against the front of the patrol vehicle approximately four to five feet from his own car during the "vehicle frisk." Based upon his training and experience, the deputy thought the can was a homemade pipe used for smoking crack cocaine or marijuana. Underneath a pair of cutoff jeans, he found a cellular telephone and what appeared to be two pieces of crack cocaine. It was at that point that Deputy Behringer thought he had probable cause to arrest the defendant for possession of cocaine and drug paraphernalia. The defendant told him that he would sign himself into a rehabilitation facility if the deputy would give him a break. Admitting that the substance was his, he explained that he was trying to kick the habit. The defendant had not been advised of his Miranda rights.
It is well established that a law enforcement officer is not permitted to detain an individual without a founded suspicion of criminal activity. Papalas v. State, 645 So.2d 153 (Fla. 1st DCA 1994); Poole v. State, 639 So.2d 96 (Fla. 5th DCA), rev. den., 649 So.2d 234 (Fla.1994); In Interest of J.L., 623 So.2d 860 (Fla. 4th DCA 1993); Hamilton v. State, 612 So.2d 716 (Fla. 2d DCA 1993); Beasley v. State, 604 So.2d 871 (Fla. 2d DCA 1992); Hill v. State, 561 So.2d 1245 (Fla. 2d DCA 1990). A founded suspicion is
one based upon facts and circumstances observed by the officer and interpreted in light of his knowledge and experience. The officer must be able to articulate a basis for his suspicion that a person has committed, is committing, or is about to...
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McMaster v. State
...and running through an abandoned building did not provide a reasonable suspicion that criminal activity was afoot); Brown v. State, 687 So.2d 13 (Fla. 5th DCA 1996) (defendant's act of sitting in parked truck at dusk in wooded area known for illegal dumping and making furtive movement when ......