Harvey v. State, 96-1345
| Decision Date | 10 November 1997 |
| Docket Number | No. 96-1345,96-1345 |
| Citation | 703 So.2d 1113 |
| Parties | 22 Fla. L. Weekly D2576 Perry C. HARVEY, III, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Dean R. LeBoeuf and Matthew K. Foster, of Brooks, LeBoeuf & Bennett, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
Expressly reserving his right to appeal the trial court's order denying his motion to suppress evidence seized in connection with his arrest, appellant, Perry C. Harvey, III, entered no contest pleas to possession of cocaine with intent to sell and carrying a concealed firearm. In this appeal he seeks review of the order denying his suppression motion.
At the suppression hearing, the arresting police officer testified he pulled over an automobile driven by Harvey for traveling 55 mph in a 45 mph speed zone. As the officer approached the car, he saw Harvey put one hand down as if placing something under the driver's side seat. The officer ordered appellant to get out of his auto and as Harvey was complying with the officer's direction, he stuck one hand down the back of his trousers. He then exited the vehicle and, at the officer's command, placed his hands behind his head with fingers interlaced and spread his legs. Shortly thereafter, two back-up police officers arrived, and appellant was handcuffed with his hands behind his back. Instead of doing a weapons pat-down search of appellant, the arresting officer pulled back the waistband of Harvey's trousers and looked down between his underwear and buttocks to see what, if anything, appellant had put down the seat of his pants.
Observing what appeared to be a cellophane bag, the officer reached down and extracted it. In the bag were other small bags of powdered cocaine. Appellant was then arrested, and a search of his automobile revealed a loaded 12-gauge shotgun under the front passenger's seat. During his testimony at the suppression hearing, the arresting officer candidly admitted that, although he could easily have done a weapons pat-down search of appellant, he did not and further that he had no probable cause to arrest Harvey until the cocaine was discovered as noted above. The officer also testified that some furtive hand movements of appellant during the encounter caused him concern that appellant may be armed with a dangerous weapon.
Briefly stated, Harvey maintains that the search to which he was subjected was overly intrusive because it was more than a pat-down search for weapons. The State counters that the search of Harvey's person was reasonable under the circumstances. Applying state and federal law to the facts at hand, we reverse appellant's conviction and remand the case with directions to discharge appellant.
Almost 30 years ago in Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), the United States Supreme Court addressed the need to protect law enforcement officers faced with individuals whom they have reason to believe are armed but for whom they lack probable cause to arrest. The court held that an officer may conduct a search of an individual in such a situation if the search is "strictly circumscribed by the exigencies which justify its initiation," 392 U.S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908, and "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the officer." Id. 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. In Terry, the court approved the officer's pat-down search, which did not invade beyond the surface of the suspect's clothing until what appeared to be a weapon was discovered, because the officer "confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons." Id. 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. See Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 936 (1968)(applying Terry where the officer made no attempt to pat-down before thrusting his hand into Sibron's pocket and taking out an envelope of heroin and holding that "[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception--the protection of the officer by disarming a potentially dangerous man").
In 1969, the Florida Legislature codified the Terry precepts in the so-called Stop and Frisk law 1. For purposes of resolving the case at bar, the relevant portions of that statute read, as follows:
(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provision of subsection (2) has probable cause 2 to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.
(6) No evidence seized by law enforcement officer in any search under this section shall be admissible...
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...the denial of the respondent's motion to suppress the firearm. 1 As stated by the First District Court of Appeal in Harvey v. State, 703 So.2d 1113 (Fla. 1st DCA 1997), "The meaning of 'probable cause' to support a valid frisk is different from the stricter 'probable cause' standard that mu......
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