Cunningham v. State, 91-00234

Decision Date27 December 1991
Docket NumberNo. 91-00234,91-00234
Citation591 So.2d 1058
PartiesWillie CUNNINGHAM, Appellant, v. STATE of Florida, Appellee. 591 So.2d 1058, 17 Fla. L. Week. D99
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Leslie Schreiber, Asst. Atty. Gen., Miami, for appellee.

CAMPBELL, Judge.

Appellant, Willie Cunningham, in this appeal from his conviction and sentence for the possession of rock cocaine, challenges the denial of his motion to suppress the cocaine which was found pursuant to a search of his person predicated on an anonymous tip. Appellant pled nolo contendere to the charge of possession of rock cocaine, reserving his right to appeal the denial of his motion to suppress. The state stipulated that the denial of appellant's motion to suppress was dispositive. Based on the reasoning stated herein, we reverse the order denying appellant's motion to suppress.

The evidence presented at the suppression hearing showed that at approximately 9:00 p.m. on September 18, 1990, an Officer Layhew of the Bradenton Police Department received a telephone call from an anonymous caller who stated that there was narcotics activity taking place behind a particular bar and package store in a high-crime area. Officer Layhew was aware of past narcotics activity at that location. The anonymous caller described two individuals allegedly involved in the narcotics activity. One alleged suspect, "Willie George" (appellant), was described as wearing blue shorts and a blue T-shirt. The caller said appellant would be standing behind the rear door of the bar and was also said to have just "re-upped" on cocaine. Officer Layhew testified he took that phrase to mean appellant had just acquired more narcotics to sell. The caller described the second alleged suspect as another black male called "Wally," who would be wearing red shorts and a white T-shirt and who would be standing to the right side of the back door. Officer Layhew also testified that confidential informants had in the past supplied information that appellant was selling narcotics but that the police, though they had tried, had never been able to verify or confirm that information.

Officer Layhew contacted a Captain Van Zant, Corporal Daisy and Officer Taylor to assist in investigating the current anonymous tip. They all arrived at the described bar about twenty minutes after the anonymous call. Officer Layhew entered the front door of the bar as Officers Daisy and Taylor approached the rear door. They apparently made no effort prior to entering the bar and approaching the two described suspects to observe the scene and verify whether the suspects were in fact selling narcotics. While Officer Layhew recognized the name "Willie George" as someone who was currently under investigation for drug activity, that activity had not been corroborated. Neither did the officers observe any drug activity at the time of this encounter with appellant.

Officer Layhew first observed appellant wearing blue shorts and a blue T-shirt standing to the left of the rear door of the bar with a man Officer Layhew knew to be Eddie Hart, who had a prior narcotics arrest. To the right of the rear door, Officer Layhew observed another black man wearing red shorts and a white T-shirt, who was later identified as "Wally." Without observing anything further of significance as to any narcotics activity, Officer Layhew approached appellant and asked him to step over to the nearby police car and place his hands on the vehicle. None of the officers had observed any criminal activity. Officer Layhew identified himself to appellant and advised appellant that he, Officer Layhew, had received an anonymous call informing him that appellant was holding and selling cocaine. Officer Layhew asked appellant if he had anything on him that he should not have. Appellant replied that he did not. Officer Layhew never advised appellant of his Miranda rights. At that time, Officer Layhew observed "Wally" running away. Officer Layhew then took hold of the waistband of appellant's shorts and conducted a pat-down search of appellant. Without stating the reasons, Officer Layhew testified that at that time he thought he had probable cause to search appellant. Officer Layhew discovered a cellophane package containing cocaine in appellant's shirt pocket. He found no weapon and he did not testify that he had reason to believe or had been advised that appellant was armed. In fact, Officer Layhew testified he was not in fear for his safety. Appellant was then arrested, handcuffed and put in the police car. Officer Layhew acquired the keys to appellant's car apparently so that Eddie Hart could drive the car home. In the course of that process, Officer Layhew asked appellant for permission to search the vehicle. According to Officer Layhew, appellant voiced no objection and consented. According to appellant, he consented because he had been placed under arrest, Officer Layhew had his keys and appellant assumed he would search the car anyway because appe...

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19 cases
  • Goettl v. State, 90-284
    • United States
    • Wyoming Supreme Court
    • November 30, 1992
    ...was to investigate the anonymous caller's information; therefore, the illegal stop tainted the consent to search. In Cunningham v. State, 591 So.2d 1058, 1061 (Fla.App.1991) (emphasis in original), Florida drew a line distinguishing between the degree of corroboration required for a stop an......
  • Bryant v. State
    • United States
    • Florida Supreme Court
    • April 28, 2005
    ...anonymous informants and that their statements needed independent verification to establish probable cause. See Cunningham v. State, 591 So.2d 1058, 1060 (Fla. 2d DCA 1991) (holding that an anonymous tip cannot be used to effectuate an arrest unless the officer develops independent evidence......
  • Wheeler v. State
    • United States
    • Florida District Court of Appeals
    • May 4, 2007
    ...529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), or probable cause to arrest him on the reported battery, see Cunningham v. State, 591 So.2d 1058 (Fla. 2d DCA 1991). One of the features of a citizen encounter is that the citizen may terminate the conversation at any time. See Parsons v......
  • State v. Clark, No. 97-3082.
    • United States
    • Florida District Court of Appeals
    • December 2, 1998
    ...468 (Fla. 3d DCA 1995) (citations omitted). In finding no probable cause here the trial court relied on a portion of Cunningham v. State, 591 So.2d 1058 (Fla. 2d DCA 1991), which states, "There must be independent evidence of criminal activity apart from the otherwise verified anonymous tip......
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