Kearse v. State

• Decision Date: 11 June 1980
• Docket Number: No. 78-1392,78-1392
• Citation: 384 So.2d 272
• Parties: Bernard KEARSE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 272

384 So.2d 272

Bernard KEARSE, Appellant, v. STATE of Florida, Appellee.

No. 78-1392.

District Court of Appeal of Florida, Fourth District.

June 11, 1980.

Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

Appellant appeals the trial court's denial of a motion to suppress as evidence the narcotic paraphernalia which he was charged with unlawfully possessing. At issue is the validity of the stop and subsequent frisk, which led to appellant's arrest. We hold that there were insufficient facts to constitute a "founded suspicion" on which to justify the stop. We reverse.

At 4:00 p. m. on January 12, 1978, two Broward County Deputy Sheriffs were on routine patrol in their police car on Northwest 27th Avenue near Fort Lauderdale. The deputies observed appellant leaning into the passenger window of a vehicle which was parked in a service station parking lot and occupied by several persons. After observing the deputies as they approached, appellant walked "briskly" away from the deputies' vehicle. As appellant continued to walk down the sidewalk, the deputies exited their vehicle and ordered appellant to halt. The deputies directed appellant to turn around and place his hands on a store wall preparatory to being frisked for weapons. When appellant outstretched his arms, the deputies saw a hypodermic plunger protruding from his rear pocket and seized the evidence.

The trial court made specific findings and conclusions based upon the deputies' testimony. Deputy McCann testified that he had known appellant for two years, and that while he had never observed appellant involved in criminal activity, he was aware of such involvement from other sources. The officers testified that appellant's conduct of hurriedly walking away was out of character since appellant would normally acknowledge the deputies when he saw them. Although the deputies were unable to articulate what type of criminal activity they suspected was occurring, they became "suspicious" because of appellant's inconsistent behavior on the day in question.

The trial court, in concluding that the stop was lawful, relied upon our decision in State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978):

. . . There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: the time, the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect ; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge. (Emphasis supplied).

In upholding the search, the trial court held that appellant's behavior and unusual actions in light of the deputies' knowledge was the legitimate basis for a "founded suspicion," and that the seizure was the result of the syringe being in open view. The court may also have considered the testimony that the area had an incidence of crime and that one of the deputies had observed "thousands" of drug situations "with an m.o. where people lean into a car."

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