Johnson v. State, 88-833

• Citation: 14 Fla. L. Weekly 84,537 So.2d 117
• Decision Date: 29 December 1988
• Docket Number: No. 88-833,88-833
• Parties: 14 Fla. L. Weekly 84 James JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 117

537 So.2d 117

14 Fla. L. Weekly 84

James JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 88-833.

District Court of Appeal of Florida First District.

Dec. 29, 1988.

Rehearing Denied Feb. 1, 1989.

Michael E. Allen, Public Defender and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and A.E. Pooser, IV, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Appellant raises the following points on appeal from his convictions for the offenses of possession of cocaine and drug paraphernalia: (1) The trial court erred in denying appellant's motion to suppress physical evidence seized as a result of an illegal pat-down search; (2) the trial court committed reversible error when it failed to inquire regarding the reasons for the prosecutor's use of peremptory challenges to exclude blacks, and it erred in failing to grant appellant's motion to excuse the entire jury; (3) the state's circumstantial evidence was legally insufficient to prove beyond a reasonable doubt that appellant possessed cocaine; and (4) the trial court incorrectly instructed the jury as to the elements of the offense of possession of drug paraphernalia by refusing to give the jury the instruction requested by appellant. We reverse as to the first and second issues with directions. We find no merit in appellant's third point and therefore affirm. As to the fourth point, our disposition of the first issue, holding infra that the trial court erred in failing to grant appellant's motion to suppress the drug paraphernalia, moots the necessity of our addressing the question of whether the lower court erred in failing to give the jury appellant's requested instruction regarding possession of drug paraphernalia.

On October 8, 1987, at approximately 12:15 a.m., Police Officers Parker and Watzlawick observed a vehicle driven by a white male, in which appellant, a black male, was a passenger, going three times around a city block located in a known narcotics area. The car stopped in the roadway and two persons approached the passenger's side of the car. After they had a short conversation with the occupants of the vehicle, the car departed. The vehicle proceeded at an extremely low rate of speed and the officers decided to stop it because, in Officer Parker's opinion, the vehicle was obstructing the flow of traffic. Officer Parker approached the driver and requested his driver's license. As the driver handed the license to the officer, Parker leaned in the car and saw appellant, whom he recognized. Parker then asked both persons to leave the car for the purpose of submitting to a weapons search. Parker frisked the driver, and Watzlawick conducted a pat-down search of appellant. Watzlawick felt a hard object in appellant's right-hand pocket, and, believing it to be a pocket knife, reached inside appellant's pocket, taking from it a pipe which, based upon his experience, appeared to be one used to smoke rock cocaine. After appellant was placed inside the patrol car, Officer Watzlawick returned to the stopped vehicle, where he found two plastic bags on the ground approximately six inches from where appellant had been standing during the search. The bags' contents were subsequently identified as cocaine. Both officers testified that appellant's hands had been closed on top of the car during the frisk and that his hands were open while he was being escorted to the patrol car. Moreover, the bags had not been observed on the ground when the officers first approached the car.

The initial stop was correctly validated as a legitimate traffic stop. In addition, we have no difficulty sustaining the stop of the vehicle pursuant to the Stop and Frisk Law, Section 901.151(2), Florida Statutes (1987), which permits a law enforcement officer to stop and temporarily detain a person when circumstances indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of the state. This court has previously approved a brief investigatory stop on facts remarkably similar to those at bar. In Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988), a black man and a white man were validly stopped by an experienced police officer after the officer observed their automobile in a known narcotics area, making several turns, and appearing to be headed in no particular direction, and the passenger seemed to be bent over toward the floorboard. Although each circumstance in the instant case, separately considered, may not in itself give rise to the well-founded suspicion of criminal activity, we conclude, after weighing the totality of all of the circumstances, that the officers in the instant case had a well-founded suspicion of criminal activity, sufficient to justify the initial stop of the vehicle in which appellant was a passenger.

A lawful stop does not of its own force, however, validate a frisk. The routine stopping of a vehicle for a traffic citation does not give rise to any reason or authorization for a search. State v. Gustafson, 258 So.2d 1, 3 (Fla.1972). Moreover, Section 901.151(5) permits a law enforcement officer to conduct a search of the person whom he has temporarily detained only to the extent necessary to disclose the presence of a weapon when the officer has probable cause to believe the person is armed and dangerous. See State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), approved, 387 So.2d 963 (1980).

The instant case does not show that the officers possessed probable cause, or even an articulable suspicion, to believe that the automobile's two occupants were armed and dangerous. Both persons were cooperative. Moreover, the two officers neither observed the occupants make any furtive movements, nor did they see a bulge in appellant's clothing prior to Watzlawick actually conducting the frisk.

Finally, the frisk cannot be sustained based on the officers' general comments that "[m]ost of these narcotics are related to weapons" and that they were concerned about their safety. In fact, Watzlawick testified that he patted appellant down to see if he was dangerous. See Chauncey v. State, 382 So.2d 782 (Fla. 4th DCA 1980) (seizure of cocaine resulting from pat-down search of passenger in automobile was illegal under section 901.151 because officer had no reason to believe the passenger was armed when he stopped the car for a taillight violation, after having observed the car passing him with its dome light on and the three occupants huddled together as if searching for something); Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980) (fact that defendant walked briskly away from parked vehicle after observing police officers was insufficient basis to justify investigatory stop or subsequent pat-down search). Cf. Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988) (search of defendant's person conducted after lawful investigatory stop was justified when officer observed cocaine smoking device in plain view); State v. Brock, 426 So.2d 1287 (Fla. 1st DCA), review denied, 436 So.2d 97 (1983) (police officer who stopped car meeting description of stolen automobile was justified in arresting and searching occupants and auto when routine check revealed outstanding warrants); State v. Webb, 398 So.2d 820 (Fla.1981) (frisk of person stopped because he matched the BOLO description of an armed robbery suspect was valid). Because the record fails to establish that the officers were able to point to specific and articulable facts which led them reasonably to conclude "that the individual whose suspicious behavior ... [they were] investigating at close range is armed and ... dangerous to the ... [officers]," Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 908 (1968), the evidence produced from that search, i.e., the pipe, should have been suppressed. Therefore, we agree with appellant that the trial court erred in denying his motion to suppress the evidence relating to the charge of narcotics paraphernalia.

Regarding appellee's claim that the error was not preserved for appellate review, because, at the time the state moved for the introduction of the paraphernalia into evidence, defense counsel stated that he had no objection to its admission, appellee cites in support thereof, Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1967), cert. denied, 210 So.2d 227 (1968), and Baglio v. State, 467 So.2d 1030 (Fla. 4th DCA 1985). The facts in both these two cases, however, are distinguishable from those at bar. In Tennant, the defense first moved at the conclusion of the state's case to suppress a photograph from evidence. This court held the error was not preserved because the photograph and other evidence pertaining to a search had previously been admitted without objection. In Baglio, the defendant's motion to suppress was denied prior to trial and no objection was made during trial to the admission of the evidence. Unlike the above cases, the defendant not only moved to suppress the paraphernalia before the commencement of the trial, but also at the beginning of trial, as well as at the close of both the state's and his case, and the court made the same...