Curry v. State, No. 90-400

CourtCourt of Appeal of Florida (US)
Writing for the CourtW. SHARP
Citation570 So.2d 1071
Parties15 Fla. L. Weekly D2902 Henry CURRY, Jr., Appellant, v. STATE of Florida, Appellee.
Decision Date29 November 1990
Docket NumberNo. 90-400

Page 1071

570 So.2d 1071
15 Fla. L. Weekly D2902
Henry CURRY, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 90-400.
District Court of Appeal of Florida,
Fifth District.
Nov. 29, 1990.

Page 1072

James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellee.

W. SHARP, Judge.

Curry appeals from his conviction for unlawful possession of a controlled substance. 1 Pursuant to State v. Ashby, 245 So.2d 225 (Fla.1971), Curry pled nolo contendere, after reserving his right to appeal the correctness of the trial court's denial of his motion to suppress evidence of cocaine. The cocaine was obtained by a police officer who ordered Curry to stop under circumstances which did not justify an investigatory stop. Curry kept walking, but he threw on the ground a pill bottle containing rocks of cocaine. We affirm.

At approximately 11:00 p.m., Officer Harting and others undertook a "sweep" for narcotics in a known high drug activity area. Some of the police patrol approached a closed bar, the Silver Shadow, from the front. Harting and his partner approached the Silver Shadow from the back, intending to catch anyone who ran from the front to the rear. All members of the police team wore bluejeans, green T-shirts labeled "Deputy Sheriff," and had their badges showing on their gun belts.

When Curry saw the police officers in front of the bar, he walked rapidly to the back towards Harting's partner. Curry had been standing in front of the Silver Shadow with two other black males. No exchange of money or contraband was observed by the police officers.

Harting walked up behind Curry and said, "Stop, police." Curry continued to walk away, but he threw a pill bottle on the ground. Harting was about ten feet away from Curry. He quickly picked up the pill bottle and then grabbed Curry. Harting opened the pill bottle and saw the rocks of cocaine. He arrested Curry and searched him.

The trial court ruled that under these circumstances Harting had no founded, objective basis to stop Curry. We agree. Curry's presence in a known drug trafficking area, and his attempt to walk away after seeing the police patrol's arrival, are not sufficient circumstances, by themselves, to constitute a founded suspicion Curry had been, or was, or intended to engage in criminal activity. Taylor v. State, 540 So.2d 887 (Fla. 5th DCA 1989); Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989); Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988).

Had there been other additional circumstances, Harting could have been justified in making an investigatory stop, and thereafter searching for a weapon. State v. Worthington, 543 So.2d 1313 (Fla. 5th DCA 1989); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). And had there been more than a founded suspicion, so as to justify an arrest, Curry could have been searched for cocaine as well. See Conti v....

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15 practice notes
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...tainted by the prior illegal search...." Id. at 1335-36 (citations omitted). Other cases supporting this view include Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990), and Freyre v. State, 362 So.2d 989 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 468 (Fla.), cert. denied, 444 U.S. 857, 10......
  • Poole v. State, No. 92-2617
    • United States
    • Court of Appeal of Florida (US)
    • 10 Junio 1994
    ...20 L.Ed.2d 889 (1968). 2 State v. Nova, 361 So.2d 411 (Fla.1978); State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979). 3 See Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990); Kindell v. State, 562 So.2d 422 (Fla. 5th DCA 1990); Jordan v. Sta......
  • Woodson v. State, No. 90-1331
    • United States
    • Court of Appeal of Florida (US)
    • 16 Mayo 1991
    ...they had committed, were committing or were about to commit a criminal offense. Sec. 901.151(2), Fla.Stat. (1989). See Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990); J.D. v. State, 568 So.2d 99 (Fla. 3d DCA 1990). Section 901.151(5), F......
  • Green v. State, No. 91-1065
    • United States
    • Court of Appeal of Florida (US)
    • 24 Enero 1992
    ...and is affirmed on the authority of California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dis'm., 383 So.2d 1200 (Fla.1980) and A.G. v. State, 562 So.2d 40......
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15 cases
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • 24 Junio 1993
    ...tainted by the prior illegal search...." Id. at 1335-36 (citations omitted). Other cases supporting this view include Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990), and Freyre v. State, 362 So.2d 989 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 468 (Fla.), cert. denied, 444 U.S. 857, 10......
  • Poole v. State, No. 92-2617
    • United States
    • Court of Appeal of Florida (US)
    • 10 Junio 1994
    ...20 L.Ed.2d 889 (1968). 2 State v. Nova, 361 So.2d 411 (Fla.1978); State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979). 3 See Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990); Kindell v. State, 562 So.2d 422 (Fla. 5th DCA 1990); Jordan v. Sta......
  • Woodson v. State, No. 90-1331
    • United States
    • Court of Appeal of Florida (US)
    • 16 Mayo 1991
    ...they had committed, were committing or were about to commit a criminal offense. Sec. 901.151(2), Fla.Stat. (1989). See Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990); J.D. v. State, 568 So.2d 99 (Fla. 3d DCA 1990). Section 901.151(5), F......
  • Green v. State, No. 91-1065
    • United States
    • Court of Appeal of Florida (US)
    • 24 Enero 1992
    ...and is affirmed on the authority of California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Curry v. State, 570 So.2d 1071 (Fla. 5th DCA 1990); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dis'm., 383 So.2d 1200 (Fla.1980) and A.G. v. State, 562 So.2d 40......
  • Request a trial to view additional results

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