King v. State, 95-03846

• Decision Date: 09 May 1997
• Docket Number: No. 95-03846,95-03846
• Parties: 22 Fla. L. Weekly D1162 Adonia Hillary KING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 860

696 So.2d 860

22 Fla. L. Weekly D1162

Adonia Hillary KING, Appellant, v. STATE of Florida, Appellee.

No. 95-03846.

District Court of Appeal of Florida Second District.

May 9, 1997.

Rehearing Denied July 14, 1997.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Johnny Salgado, Assistant Attorney General, Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

Appellant challenges the denial of his motion to suppress cocaine and a cocaine pipe. Our review of the record leads us to conclude that the court was correct in denying the motion to suppress. Accordingly, we affirm.

Officers Kemper and Cason were traveling South on Iowa Avenue in Lakeland at 7:30 p.m. when they noticed appellant standing in the middle of the road, looking in the direction of another man who was walking away from appellant. Appellant appeared disoriented. Despite the approach of the patrol car, appellant did not move from the street, so Officer Kemper stopped his car to investigate. Officer Kemper approached appellant while Officer Cason approached the other individual. As Officer Kemper approached appellant, appellant still did not notice the officer. Officer Kemper called out something to the effect of, "What's wrong?" Appellant still did not respond. Finally, when the officer got closer and asked what was wrong, appellant turned to look at him. Officer Kemper again asked what was wrong, thinking that appellant had been the victim of an offense, and appellant began backing away, putting his hands in his front pockets. Concerned for his own safety, Officer Kemper told appellant not to put his hands in his pockets. Appellant took his hands out of his pockets, but when the officer approached him again to talk to him, he put his hands behind his back. The officer, again concerned for his own safety and believing that appellant was reaching for a weapon "or something," grabbed appellant by the arm and placed him up against the patrol car. As he did so, he observed the crack pipe protruding from the rear waistband of appellant's pants. From his past experience, the officer immediately knew what the object was, and arrested appellant.

Appellant was subsequently charged by information with possession of cocaine and drug paraphernalia. When the court denied his motion to suppress, the state stipulated that the motion was dispositive. The court sentenced appellant to one year in county jail, to be followed by three years probation for possession of cocaine and one year in county jail for possession of drug paraphernalia, to run concurrently. The court also ordered $300 in unspecified costs, $300 in public defender fees and $100 for F.D.L.E. testing of the cocaine.

Appellant maintains that the officer's physical force in grabbing him converted the initial consensual encounter into a stop that required a founded suspicion on the part of the officer to validate the subsequent seizure of contraband. See § 901.151, Fla.Stat. (1995); Lang v. State, 671 So.2d 292 (Fla. 5th DCA 1996). He argues that since the officer did not see appellant committing a crime or suspect that appellant had committed or was about to commit a crime, he did not have the required founded suspicion to stop him.

Although we agree with appellant that the initial encounter was consensual and that the officer's physical force in grabbing appellant converted that consensual encounter into a stop, we do not agree with him that the officer lacked a founded suspicion to effect the stop. ¹ We conclude that the officer had the required founded suspicion because, at the time that the officer grabbed appellant, he feared that appellant was about to shoot him and thus commit a crime. The only question is whether this fear was a reasonable belief considering the totality of the circumstances as interpreted in light of the officer's knowledge. See Saadi v. State, 658 So.2d 112 (Fla. 2d DCA 1995); Brown v. State, 636 So.2d 174 (Fla. 2d DCA 1994).

We conclude that the officer's belief was reasonable under these circumstances in light of the officer's knowledge at the time. Although the officer had not seen a weapon or been warned that appellant was armed, he had come upon appellant, who was dazed and confused, standing in the middle of the street. Appellant was unresponsive and was acting oddly. He appeared transfixed by the retreating figure of another man. When the officer was finally able to get appellant's attention, appellant began slowly backing away, putting his hands in his pockets. When asked not to do that, appellant then tried to reach behind his back despite the officer's repeated requests that appellant remove his hands from his pockets and refrain from putting his hands behind him.

As the United States Supreme Court stated in Maryland v. Wilson, --- U.S. ----, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), "reasonableness 'depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Id., at ----, 117 S.Ct. at 885. In this instance, where the officer is conducting a consensual citizen encounter out of ostensibly humanitarian motives, and while attempting to discern the problem, makes a reasonable request of the individual not to put his hands in his pockets or behind his back, and the individual repeatedly refuses to comply with the officer's requests, the individual's right to personal security free from arbitrary interference is outweighed by the public interest in officer safety. Indeed, the officer's "interference" here was not arbitrary; it was borne out of a genuine concern for his own safety based on appellant's repeated refusal to keep his hands in plain sight. In this setting, we believe that the...