Johnson v. State, 91-2922

• Decision Date: 10 December 1992
• Docket Number: No. 91-2922,91-2922
• Citation: 610 So.2d 581
• Parties: 17 Fla. L. Weekly D2808 James JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 581

610 So.2d 581

17 Fla. L. Weekly D2808

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

No. 91-2922.

District Court of Appeal of Florida First District.

Dec. 10, 1992.

Rehearing Denied Feb. 1, 1993.

Nancy A. Daniels, Public Defender, Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

Appellant pled nolo contendere to possession of cocaine and possession of a concealed weapon by a convicted felon, specifically reserving the right to take this appeal from the denial of his motion to suppress. The facts of this case compel us to reverse the order denying the motion to suppress, because the police officer lacked a founded suspicion of criminal activity or probable cause to believe Appellant was armed. The subsequent patdown and warrantless search were invalid as a result of the illegal detention, and the evidence obtained should have been suppressed. Baggett v. State, 531 So.2d 1028 (Fla. 1st DCA 1988).

On July 3, 1991, Officer Bates was patrolling an inner-city section of Jacksonville known as a high drug area. He had been told to go out and look for drug activity. About 7:30 P.M., the officer observed Appellant standing in front of a house at an intersection where the police had made numerous prior drug arrests. However, the Sheriff's Department had received no complaints on that day about drug-related activities there. Officer Bates saw Appellant talking to another man, who was on a bicycle. The officer did not see either individual hand anything to the other. As soon as he saw the approaching patrol car, the man on the bicycle hurriedly rode away.

The officer was about 30 feet away and saw what appeared to be cash wadded in Appellant's hand and an object in the other. Bates testified that Appellant quickly stuck "a small round object" in his right pants pocket as the officer approached, but Bates could not see what the object was and did not know whether it was a weapon. Based on his police experience, Officer Bates concluded that a drug transaction had occurred. At the suppression hearing, he said drugs, knives and guns are "very common," and in a situation where a drug deal is suspected, for safety reasons he approaches a suspect as if the person is armed.

Bates could not recall the exact details of what followed, and he relied on his prior deposition testimony indicating he had told Appellant to remove his hands from his pockets and to turn around so the officer could get a good look at him. Prior to instructing Appellant to turn around, the officer had seen no bulges or anything else that looked like a weapon. However, when Appellant turned around, Bates saw a long, narrow closed object, about six inches long, that created a diagonal bulge in the rear pants pocket and appeared to be a pocket knife. The officer removed "a razor type knife" from Appellant's pocket and performed a patdown. Appellant was arrested for carrying a concealed weapon and then was searched, revealing a small plastic container with three pieces of crack cocaine in the right front pants pocket.

Appellant contended the officer lacked a lawful reason to perform an investigatory stop and to detain him. We agree. For purposes of the Fourth Amendment to the United States Constitution, a "seizure" occurs when one's freedom of movement has been restrained, either by physical force or a showing of authority, so that the surrounding circumstances demonstrate a reasonable person would not have felt free to leave. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); J.C.W. v. State, 545 So.2d 306, 307 (1st DCA), rev. den., 553 So.2d 1165 (Fla.1989); Evans v. State, 546 So.2d 1125 (Fla. 3d DCA 1989) (cocaine should have been suppressed because of invalid seizure resulting from officer's asking defendant to remove hands from pockets). Appellant was seized, as Officer Bates' order for Appellant to take his hands out of his pockets and to turn around was a directive that Appellant was not free to disregard. See Dees v. State, 564 So.2d 1166, 1168 (Fla. 1st DCA 1990).

To justify such a seizure, a law enforcement officer must have a founded suspicion of criminal activity. Section 901.151, Florida Statutes (1989); Terry. A founded suspicion requires a "factual basis in the circumstances observed by the officer." Gipson v. State, 537 So.2d 1080, 1081 (Fla. 1st DCA 1989). We must focus on the reasonableness of the stop. Steele v. State, 561 So.2d 638, 642 (Fla. 1st DCA 1990). Appellant was in his own neighborhood, albeit a high-crime area, talking to another person when the police arrived. Officer Bates saw no weapon and articulated no reason initially to believe Appellant was carrying a weapon. Although he saw what appeared to be cash in Appellant's hand, the officer observed no exchange of any kind between the two individuals. In Curry v. State, 532 So.2d 1316, 1317-18 (Fla. 1st DCA 1988), we stated that the officer's assessment of the circumstances in their totality "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." These facts are insufficient to provide the requisite founded suspicion for an investigatory stop and detention.

First, the flight of the unidentified bicyclist from an approaching officer, even in a crime area, does not of itself give rise to a founded suspicion of criminal activity and does not justify a stop and frisk, Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989), especially where the person is detained as a result of a companion's flight. Smith v. State, 592 So.2d 1239, 1240 (Fla. 2d DCA 1992).

Second, a quick movement as if to conceal something is a legally insufficient reason to justify an investigatory stop. Gipson, 537 So.2d at 1082; Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); Walker v. State, 514 So.2d 1149, 1150 (Fla. 2d DCA 1987). Appellant's placing his hand in his pocket, without more, did not justify the stop, Dees, 564 So.2d at 1168, even though the neighborhood was known to have a high crime rate. J.D. v. State, 568 So.2d 99 (Fla. 3d DCA 1990); Jenkins v. State, 524 So.2d 1108 (Fla. 3d DCA 1988). Cf. State v. Anderson, 591 So.2d 611 (Fla.1992) (undercover officers saw series of hand transactions apparently distributing something among pedestrians and drivers, and defendant threw an object into a nearby planter and engaged in other furtive, suspicious acts upon seeing police).

Third, Officer Bates testified he knew Appellant and had stopped him on numerous occasions in the past associating with other people linked to drugs, and he believed he had arrested him on drug-related charges. On cross-examination, however, Bates acknowledged that without reviewing the arrest record he could not ascertain whether or not he had arrested Appellant before. He had observed Appellant exiting crack houses and abandoned buildings in areas known for drugs. Bates admitted that in a deposition he had said he had never seen Appellant involved in criminal activity and had never had any problems with him. Although Bates knew Appellant had a prior drug problem, under these circumstances that fact did not raise a mere hunch to the level of founded suspicion. See Smith v. State, 592 So.2d 1206, 1207-08 (Fla. 2d DCA 1992); Shackelford v. State, 579 So.2d 306 (Fla. 2d DCA 1991); Mosley v. State...