Curry v. State, 88-607

• Decision Date: 27 October 1988
• Docket Number: No. 88-607,88-607
• Citation: 532 So.2d 1316,13 Fla. L. Weekly 2394
• Parties: 13 Fla. L. Weekly 2394 Edward Lee CURRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1316

532 So.2d 1316

13 Fla. L. Weekly 2394

Edward Lee CURRY, Appellant, v. STATE of Florida, Appellee.

No. 88-607.

District Court of Appeal of Florida,

First District.

Oct. 27, 1988.

Michael E. Allen, Public Defender, and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Edward Lee Curry appeals his conviction and sentence for possession of cocaine and phentermine, alleging that the trial court erred in denying his motion to suppress the evidence seized from him as a result of an illegal stop. For the reasons stated below, we affirm.

Curry was charged by information with possession of cocaine and phentermine as a result of a November 24, 1987 incident. Prior to trial, Curry filed a motion to suppress the evidence seized from him as a result of an alleged illegal stop. At the suppression hearing, James Thurne, a Jacksonville police officer, testified that on November 24, 1987, the department received a call on its "crack cocaine hotline" about drug activity in the Pottsburg Creek project, known as a high crime area. That evening, about 8:45 p.m., Thurne, along with several other officers wearing police jackets, went to an area in the project known for drug dealing. Upon their arrival, Thurne observed several black males running in different directions, some yelling "police." Thurne started chasing Curry because "[h]e was running from the area that we had received calls on, and we didn't know where he was running. We wanted to find out where he was running." Thurne said there was no other reason why he would have come into contact with Curry at that time. When Curry eventually slowed down, Thurne was able to catch up with him and as Thurne approached him, Curry "turned around and put his hands behind him. I asked him what he had behind him. And he wouldn't ever say anything. I grabbed him. I didn't know what he had."

According to Thurne, the purpose for his making contact with Curry as he approached him was that he was concerned for his safety because he did not know if Curry had a gun in his hand. Thurne said he was concerned for his safety because the police had gotten a lot of calls "where they were out shooting and carrying on with different types of weapons." In Curry's hand Thurne found a glass pipe that was commonly used to base cocaine. Officer Thurne then advised Curry of his Miranda rights and arrested him for possession of drug paraphernalia. A subsequent search of Curry's person revealed what appeared to be cocaine and some pills. Thurne stated that if Curry had not put his hand behind his back when he slowed down, he would have asked him for an I.D. and asked Curry why he ran away from him. Thurne admitted that Curry had never been previously identified to him as a drug dealer and that he had not had any prior contact with Curry. Thurne also stated that prior to Curry's actually stopping, Curry did not make any threatening moves toward him. When asked if he had personally observed Curry perform any illegal activity, Thurne responded that he couldn't tell, because "there was a bunch of them in the darkness."

The trial court ruled that the police had the right to stop and detain Curry and ask him for identification, and that when he saw Curry try to hide something in his hand behind his back, the officer had the right to ascertain what the defendant was concealing. Accordingly, the trial court denied the motion to suppress.

A jury trial was held in February 1988, at which time Officer Thurne reiterated his testimony from the suppression hearing. Thurne also stated that when he asked Curry about the items found on him, Curry voluntarily said that "he smoked rocks, that he didn't sell them, and that the pills or the capsules were antibiotics that he was taking." On cross-examination, Thurne admitted that he did not personally take the call to the crack cocaine hotline, and that as far as he knew, no physical description of the people involved in the drug activity had been provided.

Curry testified that on the night in question he was talking to an acquaintance by the side of the road when he observed the police arrive, jump out of the car, and say, "Vice." Curry said he was standing across the street when he observed an officer pick something up from the ground and come over to where he was standing. The police officer asked Curry's acquaintance what a white boy was doing in the area, while Curry told the officer that he lived down the street and that he could prove it. However, the officer, stating that no white boy lived in the neighborhood, told Curry that the cocaine had to be his and told him to walk across the street, where Curry was placed under arrest. Curry denied having any cocaine when searched. The jury found Curry guilty as charged and he was sentenced to concurrent three-year prison terms.

On appeal, Curry contends that his stop was illegal because Officer Thurne had no "founded suspicion" that Curry was committing, had committed, or was about to commit a crime as required by § 901.151, Fla.St...