Dunn v. State, 79-1545

• Court: Court of Appeal of Florida (US)
• Citation: 382 So.2d 727
• Docket Number: No. 79-1545,79-1545
• Parties: Roy Leonard DUNN, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 14 March 1980

Page 727

382 So.2d 727 Roy Leonard DUNN, Appellant,
v.
STATE of Florida, Appellee. No. 79-1545. District Court of Appeal of Florida, Second District. March 14, 1980.
Rehearing Denied April 23, 1980.

Page 728

Jack O. Johnson, Public Defender, Bartow, and Thomas J. Sherwood, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Chief Judge.

Appellant pled nolo contendere to a charge of possession of marijuana, reserving the right to appeal the denial of his motion to suppress.

Undercover police officers purchased a baggie of marijuana from Harold Bailey in the living room of a mobile home. Appellant, who was a companion of Bailey, was in the living room when the purchase took place but did not participate in the transaction. As soon as the officers made the purchase, they placed Bailey under arrest, and one of them searched appellant. In the course of the search, the officer felt a cylindrical object in appellant's right front shirt pocket. He suspected that the object was marijuana and had no apprehension that it was a weapon. He removed the object, and, his suspicions being confirmed, placed appellant under arrest.

We reject appellant's first argument that the officers had no right to search him for any purpose. There was ample basis under the stop and frisk law, Section 901.151, Florida Statutes (1979), for the officers to conduct a limited search to determine whether appellant was carrying a weapon. Appellant was obviously associated with Bailey and knew the drug transaction had taken place. Moreover, the officers had already ascertained that Bailey had a gun. Under the circumstances, the officers had a right to be concerned over whether appellant might seek to come to Bailey's assistance. On the other hand, not even the state suggests that the officer had probable cause to arrest appellant prior to the time he actually removed the marijuana from appellants' possession. ¹ The question then is whether the officer, upon encountering an object during the course of his weapon search which he suspected to be marijuana, had the right to seize it even though he had no apprehension that it might be a weapon.

Less than two years ago our court faced the same issue on essentially the same facts in Meeks v. State, 356 So.2d 45 (Fla.2d DCA 1978). In Meeks we pointed out that the legislature predicated the stop and frisk statute on the holding of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which outlined the circumstances under which law enforcement officers could detain suspects and search them for weapons when there was no probable cause for arrest. In quashing the search in Meeks, we said:

Page 729

Our reading of the Terry decision and cases from other jurisdictions which have interpreted Terry leads us to believe that the language we have quoted (Section 901.151(5)) means that an officer in a stop and frisk situation may not extend his search beyond a pat down of a suspect's outer clothing unless that pat down or other circumstances leads the officer to conclude that the suspect has a weapon on his person. State v. Handspike, 142 Ga.App. 104, 235 S.E.2d 568 (1977); People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970); People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659 (1969)....