Kell v. State
| Decision Date | 18 April 1990 |
| Docket Number | No. 89-2136,89-2136 |
| Citation | 559 So.2d 731 |
| Parties | 15 Fla. L. Weekly D1012 Anthony KELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia G. Lampert, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant pled nolo contendere to a charge of possession of cocaine, but reserved his right to appeal the trial court's denial of his motion to suppress. We reverse.
It is axiomatic that in determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop the "totality of the circumstances" must be taken into account. Although the detention may be based on something less than probable cause, it cannot be based upon mere suspicion of criminal activity. See Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); King v. State, 521 So.2d 334 (Fla. 4th DCA 1988); State v. Hoover, 520 So.2d 696 (Fla. 4th DCA 1988).
Each case must be examined individually and the question becomes whether the circumstances, including the officer's experience, raise the stop and search to the requisite level. State v. Pye, 551 So.2d 1237, 1238 (Fla. 1st DCA 1989); State v. Hoover, 520 So.2d at 696. The mere fact that the appellant was present in a high crime area, which happened to be where he lived, at nighttime, without more, such as suspicious conduct or unusual circumstances as were present in Pye, 551 So.2d at 1237, does not warrant an investigatory stop. The detention and search did not rise to the level set forth in Terry. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla.Stat. (1987). Here, the stop was illegal as was the subsequent search and the "fruits of the poisonous tree" should have been suppressed.
In light of the written stipulation between appellant and appellee that the disposition of the motion to suppress is dispositive of all issues in the case, we reverse and dismiss the charges against appellant.
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Woodson v. State
...tree because the stop was unlawful. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Kell v. State, 559 So.2d 731 (Fla. 4th DCA 1990). HARRIS, J., concurs specially with opinion. COBB, J., dissents with opinion. HARRIS, Judge, concurring specially: I concur. ......
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Jessup v. Miami-Dade Cnty.
...conduct "consisted only of walking down the street in a 'high prostitution area' at 9:30 in the evening"); Kell v. State, 559 So. 2d 731, 731 (Fla. Dist. Ct. App. 1990) ("[T]he mere fact that the appellant was present in a high crime area, which happened to be where he lived, at nighttime, ......
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J.L., In Interest of
...an individual simply for being present in a particular location, such as a high crime area, is not permitted. See Kell v. State, 559 So.2d 731 (Fla. 4th DCA 1990). Appellant's appearance in the area, without more, did not warrant an investigatory stop. Id. The officer at bar articulated no ......
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Burgess v. State, 91-3141
...of defendant's presence on private property. Similarly, the "totality of the circumstances" cannot justify the stop. In Kell v. State, 559 So.2d 731 (Fla. 4th DCA 1990), this court reversed the denial of a motion to suppress holding that the totality of the circumstances did not justify a s......