Davis v. State
| Citation | 695 So.2d 836 |
| Decision Date | 18 June 1997 |
| Docket Number | No. 95-03862,95-03862 |
| Parties | 22 Fla. L. Weekly D1506 Derek DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Frank D.L. Winstead, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellee.
Derek Davis appeals the denial of his motion to suppress evidence seized after the stop and search of his vehicle. Because there was insufficient evidence to show a founded suspicion for the stop, we reverse.
While on routine patrol at approximately 10 p.m., a deputy observed Davis's vehicle backed into a wooded area next to a shopping mall. The deputy had not received any calls regarding any crime being committed in the area. He testified that he pulled into the shopping center to "conduct a traffic stop to determine his (Davis's) presence for being there." When the deputy pulled into the shopping center, Davis's vehicle started pulling out of the woods attempting to leave.
The deputy testified that he stopped the vehicle based upon how the vehicle was located, the area in which it was located, the time of night, the fact that the businesses were closed, and past problems in the same vicinity. The deputy testified that Davis was not free to leave and was being detained until the deputy completed a driver's license check.
In response to the deputy's questions, Davis said that he was waiting for someone and they were going to a barbecue. While the computer check on the license was being performed, another man approached and got into the passenger side of the vehicle. When the license checked out clear, the deputy returned to the vehicle and gave Davis back his license. Davis began reaching under the seat, as he had done once before, and the deputy asked whether there were any weapons or narcotics in the car and whether he could search the car. At the suppression hearing, the deputy testified that he did not tell Davis that a narcotics dog would be brought to the car if Davis did not allow the search. However, in his deposition he acknowledged that he did.
The passenger in the vehicle then left the car, and the deputy detained him about twenty feet away. Meanwhile, Davis left the vehicle and went into the woods, where he was then apprehended by the deputy. Cocaine and a gun were found in the woods, and cocaine was found in the car. Davis was charged with possession of cocaine and possession of a concealed firearm. After the trial court denied Davis's motion to suppress this evidence, Davis pleaded nolo contendere, reserving the right to appeal the denial of his motion to suppress.
On appeal Davis first argues that the officer did not have a founded suspicion to stop his vehicle when it began to leave its parked position. We agree. An investigatory stop must be based on founded or reasonable suspicion that the vehicle's occupants committed, are committing or are about to commit a crime. See Popple v. State, 626 So.2d 185 (Fla.1993). Here, the officer did not have the founded suspicion necessary to authorize a stop of the vehicle.
This case is somewhat similar to McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986), where police observed a car backed up to a boarded-up building in a high crime area at 1:20 a.m. near a "No Trespassing" sign. As the officer approached, McCloud turned on the engine and began to drive away. This court concluded that these facts did not support a founded suspicion of criminal activity.
The state cites the first-degree murder case of Lightbourne v. State, 438 So.2d 380 (Fla.1983), which held that it was not a stop or seizure when the officer in that case approached the defendant in his parked car, asked him a few simple questions as to his reason for being there, and ran a check on his driver's license. Lightbourne is distinguishable because in that case a citizen had called the police about a suspicious car in the neighborhood and the defendant had not begun to drive away. The other cases cited to us by the state to...
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