Hills v. State, 91-3036

• Citation: 629 So.2d 152
• Decision Date: 22 July 1993
• Docket Number: No. 91-3036,91-3036
• Parties: 18 Fla. L. Weekly D1738 Nathan HILLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 152

629 So.2d 152

18 Fla. L. Weekly D1738

Nathan HILLS, Appellant, v. STATE of Florida, Appellee.

No. 91-3036.

District Court of Appeal of Florida,

First District.

July 22, 1993.

Rehearing Denied Jan. 21, 1994.

Nancy A. Daniels, Public Defender, Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant seeks reversal of his conviction for possession of cocaine, arguing that the lower court erred by denying his motion to suppress. We agree, and therefore overturn appellant's conviction.

It was established at the suppression hearing that on the night of the arrest police officers Scott Skrove and Howard Stoll, members of the narcotics unit, were surveying for narcotics-related activities on North Macomb Street, an area known for drug transactions. Skrove testified that he and his partner saw a car pull into a parking lot on the 300 block of North Macomb Street. Three males exited the vehicle and met a fourth individual at a soda machine. Stoll testified that drug transactions had occurred at this machine. Skrove testified that he recognized two of the three men who exited the car. However, the officer did not explain his acquaintance with these men; that is, there was no testimony that Skrove recognized these men as prior offenders. The four men huddled together for a short time then the fourth man opened his hand, palm up, and appeared to be showing the contents of his palm to the others. Shortly thereafter, the four parted company. The three returned to the car, which left the parking lot, and the fourth walked away. Neither Skrove or Stoll testified that an exchange occurred.

Skrove and Stoll followed the car, in which appellant was a front seat passenger, and they each testified that they were awaiting assistance before attempting to stop the vehicle. While the officers were following the vehicle, they observed two traffic infractions. First, they noticed that the driver of the vehicle, Rozier, failed to use a turn signal. Then, they observed Rozier make a sudden lane change which required a trailing vehicle to brake suddenly.

After Rozier's vehicle had been followed for 5 miles or so, back-up arrived and Rozier was stopped. The officers talked to Rozier outside his vehicle, and after a license check, Rozier agreed to a search of his person; nothing was found. According to the officers, Rozier thereafter consented to a search of his car. Appellant was removed from the vehicle and was asked whether he was in possession of a weapon or narcotics. Appellant denied possession, and then, according to Skrove and Stoll, consented to a search of his person, which revealed crack cocaine and a cocaine pipe. Appellant was arrested at that point.

Appellant was charged with possession of cocaine and possession of paraphernalia. Appellant moved to suppress the seized evidence, arguing that police lacked a founded suspicion of criminal activity based upon what they observed on North Macomb Street. Without explanation, the lower court summarily denied the motion to suppress. Appellant thereafter entered a nolo plea on the possession of cocaine charge, reserving the right to appeal the denial of his motion to suppress. The state dropped the possession of paraphernalia charge.

We believe the lower court erred in denying the motion to suppress. Skrove and Stoll explicitly testified that before any traffic infractions were observed, they had decided to stop the vehicle in which appellant was riding. See, U.S. v. Smith, 799 F.2d 704 (11th Cir.1986) (where there is objective evidence police had no interest in investigating possible drunk driving charge, stop on this ground was pretextual); Porcher v. State, 538 So.2d 1278 (Fla. 5th DCA 1989) (stop of vehicle for allegedly following too closely by one officer, at request of officer involved in drug investigation, held pretextual, where real reason for stop was to check for possession of drugs); Monroe v. State, 543 So.2d 298 (Fla. 2d DCA 1989) (stop was unlawful where state failed to carry burden of proving that reasonable officer would have made stop for a bald tire, absent another invalid purpose). Skrove testified that he would have stopped Rozier's vehicle for such infractions when he was a patrol officer. The evidence did not establish, however, that the officers, while engaged in their duties as narcotics investigators, would have stopped a car for these minor traffic infractions. The traffic infractions, therefore, do not constitute the focal point in determining whether the police possessed a founded suspicion to justify a stop of the vehicle. ¹

We recognize that this court has not charted a clear course on the topic of founded suspicion. Nevertheless, after examining the spectrum of fact patterns contained in the case law addressing this question, we find that the events observed on North Macomb Street did not afford the police a founded suspicion of criminal activity to justify the stop. Whether a vehicle stop is lawful depends upon whether it is predicated on a founded or reasonable suspicion that requires further investigation to determine whether the occupants of the vehicle have committed, are committing, or are about to commit a crime. McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986); Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988). In order to justify a stop based on founded suspicion, the officer must articulate in particular and objective terms his reasonable suspicion of criminal activity; a bare suspicion of criminal activity is insufficient. Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989).

As above noted, Skrove and Stoll observed appellant and the other persons in an area known as "Frenchtown," which is known to be a high crime area. The officers did not see an exchange of any object between the persons huddled together. Rather, Skrove and Stoll testified that they merely observed one of the four appear to display the contents of his palm to the others. In Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989), this court determined that the police lacked a founded suspicion when, while patrolling an area known for drug transactions in search of a robbery suspect, they observed three persons huddled behind a bar which had recently been the site of a murder. As police approached on foot, the three fled. This court noted that the defendant in Gipson was not the robbery suspect being sought and that police did not observe the exchange of drugs or money. 537 So.2d at 1082.

Similarly, in Daniels v. State, supra, this court determined that police lacked a founded suspicion based upon their observation of a man, in a group of 20 to 30 people gathered outside a Frenchtown tavern, who departed suddenly from the crowd into the tavern upon the sight of an unmarked police car. The detaining officer found the defendant looking out the back door of the tavern with his hands in his pockets; the defendant refused to comply with the officer's request to remove his hands from his pockets, and he was thereafter arrested.

In Dames v. State, 566 So.2d 51 (Fla. 1st DCA 1990), this court also reversed the denial of a motion to suppress. The detaining officer in Dames testified that while patrolling "a well-known drug area" he observed a man, the defendant, leaning into the passenger window of a car. When the driver of the car spotted the officer, he abruptly departed leaving the defendant in the middle of the street "looking puzzled." 566 So.2d at 52. When the officer drove up to the defendant, the defendant swiftly walked away, but he was ordered to stop. As he stopped and turned towards the officer, a bag of cocaine fell to the ground. Again, the officer did not observe the exchange of drugs or money.

We are not suggesting that an exchange of money or contraband must be observed before a permissible stop may be made. Rather, the lack of such a transaction is cited as demonstrative of the paucity of factual circumstances objectively demonstrating past, present or impending future criminal activity in the case before us. While it is true that the police in the instant appeal, as was the case in some of the decisions cited above, ² have testified that the conduct they observed was consistent with drug transactions, a stop nevertheless must be based "on objective facts." Adams, 523 So.2d at 192; McClain v. State, 408 So.2d 721 (Fla. 1st DCA), rev. dismissed, 415 So.2d 1361 (Fla.1982).

In Thornton v. State, 559 So.2d 438 (Fla. 1st DCA 1990), this court affirmed the denial of a motion to suppress. In that case, a police officer was patrolling "a known drug area" in a marked vehicle when he observed two men together, one man peering into the cupped hands of the other, the defendant. When the police car was spotted by the defendant, he "made a quick move," turned his back to the officer, and moved both hands to his groin area. 559 So.2d at 439. This court described the movement of the defendant to his groin as "a furtive, suspicious and potentially dangerous act." Id. Concerned that the defendant in Thornton was secreting a weapon, the officer exited his vehicle and requested that the defendant remove his hands. When the defendant failed to do so, the officer drew his weapon and repeated the instruction. As the defendant began to comply, he dropped a small bag of cocaine to...