Harper v. State, 86-2853

• Decision Date: 30 August 1988
• Docket Number: No. 86-2853,86-2853
• Citation: 532 So.2d 1091,13 Fla. L. Weekly 2020
• Parties: 13 Fla. L. Weekly 2020 Willie Lee HARPER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1091

532 So.2d 1091

13 Fla. L. Weekly 2020

Willie Lee HARPER, Appellant, v. The STATE of Florida, Appellee.

No. 86-2853.

District Court of Appeal of Florida,

Third District.

Aug. 30, 1988.

Rehearing Denied Sept. 29, 1988.

Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Margarita Muina Febres, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, ^* JJ.

SCHWARTZ, Chief Judge.

Harper appeals from a conviction, after jury trial, of first degree murder, armed robbery and burglary. His central point claims that evidence which provided the first indication of his involvement in the crimes and which led to his identification as one of the principals was unconstitutionally taken from his person. To the contrary, we conclude that the evidence was the product of a lawful search and seizure and therefore affirm the judgment below.

For once, the sequence of events which gave rise to the issue before us may accurately be described as a real life "scenario." It began on August 25, 1985, when the Modernissimo Furniture Store in Miami was burglarized, and three men inside were held up at gunpoint by unknown perpetrators. One of the victims, Jorge Palomo, a citizen and resident of El Salvador, was shot and killed. For a few days, the crime was a legitimate "whodunit"--the police had no indication as to the identity of the offenders. On September 5, however, in the course of an unrelated investigation of a robbery at an apartment which served as a well known cocaine crack house, officers discovered credit cards in the name of Palomo and one of the other victims of the Modernissimo robbery. Based upon that fact, a concededly valid search warrant was secured for the crack house. It named as the objects of the search, evidence in the form of various items which had been used or taken in the crimes. ¹

When the warrant was executed on September 8 by members of a police SWAT team, they found Harper, a stranger to them, in the apartment along with several other persons. He was standing next to a kitchen counter on which a quantity of cocaine was in plain view; nearby also was a butane torch commonly used in the preparation of crack. As is apparently their wont, see Bastien v. State, 522 So.2d 550 (Fla. 5th DCA 1988), the officers immediately placed Harper face down on the floor and cuffed his hands behind him. He was asked his name and responded. When the detectives requested physical identification, Harper said that it was "in [his] back pocket [and to] take it out." The officers did so, and the most serendipitous event of all then occurred. While looking through the wallet, which had been removed from the defendant's back pocket, to locate his i.d., Detective Fisten discovered several Salvadorian bills which were at once tied to Palomo, the Salvadorian murder victim. Harper, about whom they previously had known nothing, became an obvious suspect. The officers went with him to the police station where, after appropriate Miranda warnings, he confessed to his involvement in the offenses. As a result, other evidence was secured, including the identification of his fingerprint at the scene. The totality of the evidence was such that there is no question of its sufficiency to support the convictions.

Harper does, however, strenuously contend that the seizure of the Salvadorian currency, which was undeniably decisive in the case against him, was without constitutional justification and that both it and the other evidence against him, which was just as clearly the Wong Sun product of that seizure, should have been suppressed below. Although the question is surely not free from difficulty, we hold, however (1) that the SWAT team made no more than a Terry stop of Harper which (2) was properly based upon a founded suspicion of criminal activity arising from his proximity to the drugs and paraphernalia contained in the crack house and (3) that the evidence was validly discovered in a search for identification as an appropriate aspect of the Terry stop. Accordingly, we uphold the search and seizure in question.

1. First, we conclude that the circumstances of Harper's seizure within the crack house--a place notorious for the presence, use and distribution of crack cocaine and in which evidence of a capital crime had been discovered and was being sought--amounted to a Terry v. Ohio ² stop of his person rather than an arrest requiring probable cause. ³ On two recent occasions, we have considered similar questions in factual contexts which did not represent nearly so great and apparent danger to the police as the one here. See Ruiz v. State, 526 So.2d 170 (Fla. 3d DCA 1988); State v. Lewis, 518 So.2d 406 (Fla. 3d DCA 1988). In those cases, we held that an investigatory stop did not ripen into a custodial arrest merely because drawn guns were used, Ruiz, 526 So.2d at 172; Lewis, 518 So.2d at 407-08, or because the defendant was physically restrained by being required to lie prone on the ground. Ruiz, 526 So.2d at 172. The only variation on that theme here is that Harper was handcuffed. Under these circumstances, as was specifically held in United States v. Bautista, 684 F.2d 1286 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983), which was cited in Ruiz and Lewis, this fact makes no difference. But cf. State v. Belieu, 50 Wash.App. 834, 751 P.2d 321 (1988).

2. Next, we conclude that the Terry stop itself was a constitutionally supported one. It is true, as the defendant argues, that because there was no information to connect Harper with the inculpatory material which was the only subject matter of the warrant, see 2 W. LaFave, Search and Seizure § 4.9(c) (2d ed. 1987), ⁴ there is no basis for upholding his seizure and the subsequent search as incident to the warrant itself. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Julian v. State, 528 So.2d 427 (Fla. 2d DCA 1988); Bastien v. State, 522 So.2d at 550; Cerna v. State, 693 S.W.2d 570 (Tex.Crim.App.1985); 2 W. LaFave, supra, § 4.9(c). ⁵ Nevertheless, the fact that police are engaged in serving a search warrant surely does not detract from their ability to engage in constitutionally authorized methods of law enforcement when they lawfully come upon situations which justify that particular conduct, such as the use of a Terry stop in the investigation of a person reasonably suspected of an offense. 2 W. LaFave, supra, § 4.9(e); State v. Torres, 197 Conn. 620, 500 A.2d 1299 (1985) (Terry applicable even if Michigan v. Summers is not).

In this case, the founded or reasonable suspicion constitutionally required to support the Terry stop we have identified is readily apparent. Harper was found in a base house within feet of cocaine on one side and a torch which was at once a potential weapon and an item of narcotics paraphernalia, on the other. While his mere proximity, particularly when others were also present, may not have been sufficient to constitute probable cause to believe Harper was guilty of unlawful possession, see Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984), the present circumstances were more than sufficient to meet the markedly reduced standard of founded suspicion. Ruiz, 526 So.2d at 172; Lewis, 518 So.2d at 408; State v. Perera, 412 So.2d 867 (Fla. 2d DCA 1982), pet. for review denied, 419 So.2d 1199 (Fla.1982). Hence the seizure of Harper's person under Terry was permissible.

3. We turn now to the ultimate physical acts which actually secured the evidence in question--the retrieval of Harper's wallet and the revelation of its contents. In our view, this conduct was justified on just the ground upon which it was based at the scene, as an appropriate means to secure Harper's papers so as to determine his identity.

As the cases from Terry itself to the present reflect and emphasize, one of the basic reasons for, and necessarily one of the primary functions of the investigatory stop is to ascertain the identity of the suspect. Terry, 392 U.S. at 1, 88 S.Ct. at 1868, 20 L.Ed.2d at 889; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972) ("A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.") (citations omitted); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Accordingly, it is widely held that a request, even a persistent or intrusive one, that a detained suspect produce identification papers is an appropriate and authorized aspect of a Terry seizure. United States v. Adegbite, 846 F.2d 834 (2d Cir.1988); United States v. Jones, 759 F.2d 633 (8th Cir.1985), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985); United States v. Vanichromanee, 742 F.2d 340 (7th Cir.1984); see United States ex rel. Hines v. LaVallee, 521 F.2d 1109 (2d Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976); cf. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (implying, by refusing to reach validity of statute making refusal to identify oneself a crime by ruling that stop was not based upon reasonable suspicion, that stop for identification would be authorized by founded suspicion); Hallock, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L.Rev. 1057, at 1066-67 (1984). Thus, the officers' request for identification was undoubtedly justified.

The further issue presented here, however, is whether their self-help in securing the i.d. was proper when, as here, the defendant could not produce it himself; whether, in other words, an officer may conduct a non-consensual ⁶ search for the identification the model of a Terry stop entitles him to request and...