Bryant v. State, 88-2578

• Decision Date: 09 April 1991
• Docket Number: No. 88-2578,88-2578
• Citation: 577 So.2d 1372,16 Fla. L. Weekly 1003
• Parties: 16 Fla. L. Weekly 1003 Thomas Maurice BRYANT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1372

577 So.2d 1372

16 Fla. L. Weekly 1003

Thomas Maurice BRYANT, Appellant, v. STATE of Florida, Appellee.

No. 88-2578.

District Court of Appeal of Florida First District.

April 9, 1991.

Nancy Daniels, Public Defender; Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant plead nolo contendere to a charge of possession of cocaine, reserving his right to appeal the trial court's denial of his motion to suppress cocaine seized from his person by the arresting law enforcement officer. Appellant contends that the seizure of the contraband was the product of an unlawful detention, and was made without probable cause in violation of the Fourth Amendment, United States Constitution, and Article I, section 12, Florida Constitution. Finding no abuse of discretion in the trial court's denial of the motion to suppress, we affirm.

The facts, as revealed by the testimony of Officer Riley, disclosed that around 10:00 A.M. on the morning of the arrest, he was patrolling an area well-known for drug violation when he noticed a group of seven or eight men congregated in front of an abandoned house. He parked his patrol car and maneuvered himself undetected to within five feet of the group. He testified that the individuals he observed were talking about drug transactions, and watching the people passing by in cars who were suspected drug buyers. The discussions included crack cocaine and some type of marijuana. After listening for a short time, Riley made his presence known to the men, whereupon as he described it:

[T]hey all started fidgeting around, walking around as though they wanted to leave the area hurriedly.... They were saying "search me, search me, I have no drugs on me." ... They were all dressed in heavy clothing, coats, etc. The pockets seemed to have something in them--seemed to be full. So, just for precaution, we usually, any time we are approaching an area where there is [sic] people suspected of doing any wrongdoing, we do a frisk for weapons.... Before I got to the defendant, the defendant--I was talking to the other people, frisking them first. The defendant kept walking around, placing his hands in and out of his pockets. He walked towards the rear of the group and, at that point, I approached him. And before I could start any type of frisk of him, I observed the paper--there was a small brown paper tearing in his right coat pocket area.

Asked to describe the paper, Riley stated that it was like paper torn from a grocery sack, and that he had often encountered in that area small brown paper bags, pieces of bags or small match boxes containing drugs or drug paraphernalia. Officer Riley immediately assumed there were drugs in the paper; however, he could not remember whether he retrieved the paper from appellant's pocket, or whether appellant gave it to him. In any event, inside the brown paper he found two pieces of crack cocaine.

For his part, appellant testified that he was looking for someone to help him wash his car, and that as a joke he picked up the paper from the ground where he had seen one of the men put it. He also testified that he did not know what was in the paper, "but I had an idea," and that "I kept moving around and he came back to me because I was trying to get the piece of paper out of my pocket."

Defense counsel argued below that the detention was more than an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), since the officer intended to routinely frisk the men for evidence of a crime, which action could be justified only by probable cause to believe a crime was being committed. Alternatively, it was argued that if the detention was a valid Terry investigatory stop, it was unlawful because not based upon a founded suspicion that appellant was engaged in some criminal activity. He contended that in either case, the seizure was the product of an illegal detention, and that even if the detention was justified, the officer's observation of a brown piece of paper protruding from appellant's pocket did not constitute probable cause to believe it contained evidence of a crime.

The state, in response, argued that the stop was lawful under Terry because it was in a high-crime area which the officer had been working for the past year; that he heard the men discussing how they conducted drug transactions, and that when he approached them, they became nervous and evasive in their actions. It was also pointed out that the officer did not frisk appellant, but saw the paper in plain view, and that the officer had a right to be where he was, and inadvertently gained sight of the paper. Further, the state argued, it became immediately apparent to the officer, given his knowledge and experience, that the paper contained evidence of a crime.

The trial court accepted the argument of the state, concluding that although the evidence that the men were talking about drugs, "in and of itself," would not be significant, it was under the circumstances which included the fact that the men were in an area known for drug transactions; and that given the knowledge and experience of the officer, when he saw the brown paper protruding from appellant's pocket, he had reasonable grounds to believe that the paper contained contraband. He therefore denied the motion to suppress.

We first determine that the "stop," if one occurred, ¹ was not unlawful. Under section 901.151, an officer must have an articulable suspicion (a reasonable or founded suspicion), that a person has committed, is committing, or is about to commit a crime before he may lawfully detain him. A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge and experience. Factors to be considered in deciding whether there was a founded suspicion for a stop are the time, the day, the location, the physical appearance of the suspect, the behavior of the suspect, and anything unusual in the situation as interpreted in light of the officer's knowledge. Hooper v. State, 440 So.2d 525 (Fla. 1st DCA 1983), citing State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). Under the criteria mentioned, we find that the trial court's determination that the officer possessed the requisite articulable suspicion was within the discretion afforded the trial court in ruling on motions to suppress, and we find no error in this ruling.

Whether the seizure of the contraband from Bryant's pocket was lawful is another matter. Assuming that the officer seized the contraband from Bryant's pocket, although he was uncertain on this point, the seizure...