King v. State, 4-86-1838
| Decision Date | 09 March 1988 |
| Docket Number | No. 4-86-1838,4-86-1838 |
| Citation | 521 So.2d 334,13 Fla. L. Weekly 657 |
| Parties | 13 Fla. L. Weekly 657 Basil KING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard Jorandby, Public Defender, and Don Stephens, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a judgment and conviction based upon a warrantless stop and search. The defendant pled nolo contendere to the charge of possession of a controlled substance, reserving his right to appeal the trial court's denial of his motion to suppress. We conclude the stop and search were constitutionally defective, thus violative of the defendant's rights. Accordingly, we reverse the conviction and remand with direction that the trial court proceed consistent herewith.
The transcript on the hearing on the motion to suppress reflects that the following took place about noon on the day in question:
A. My name is Officer Greg Kirk and I'm a police officer with the Ft. Pierce Police Department.
Q. How long have you been employed with the Ft. Pierce Police Department?
A. Approximately five and half years.
Q. During that five and a half years, what--what capacity have you worked for the department?
A. I've been a patrolman.
Q. Okay, working the streets?
A. Yes ma'am, working the streets.
Q. What area at the present time, or say within the last year, have you worked? Do you work zones?
A. Yes ma'am, I work the north area of town, north of Orange Avenue.
Q. Okay.
A. Which is the Avenue D area.
Q. Now I want to take you back to I believe it's January of '86. Were you working that area in January?
A. Yes ma'am, I was.
Q. On January 20th did you happen to be in that area around noontime?
A. Yes, I was in the area on routine patrol around 10th and Avenue D.
Q. Would you des--describe to the court the area that you're talking about and basically what type of area it is.
A. Okay, the area that I was in--on patrol in, it's a high drug area, high prostitution area, just an overall crime ridden area.
Q. While on patrol did you notice anything unusual at that time?
A. Yes, when I turned on to 10th Street off of Avenue D--or off of Avenue E, Echo, I was heading south on 10th Street approaching Avenue D, two known drug houses I observed a maroon I believe Monte Carlo, which was in between two drug houses, it was a Chevrolet, '78 Chevrolet maroon in color, Florida tag VAK 163, and two white males were occupying the vehicle.
Q. The two white males were inside the car?
A. Yes ma'am, both of 'em were sitting in the car.
Q. And was it parked on the street?
A. No, it was pulled up in between the two houses and you had a Mexican male and a black male standing at the driver's side of the door speaking with the driver of the vehicle.
Q. Now you've been working with the police department five and a half years and you've worked that area for some time. How long have you worked that particular area?
A. Almost the whole time that I've been with the police department.
Q. Now is that unusual to see two white males parked in a car talking to a black and a Mexican?
A. It's not unusual, it just keys in my mind that there's a drug deal going down or something illegal is happening there, an exchange of stolen property or something of that sort.
Q. Did you recognize any of those individuals?
A. Yes. Well, as the--as I approached the vehicle, the black male walked away very rapidly. Okay, now the black male is Darly Galloway which is a known drug dealer and has been arrested several times.
Q. And he's known to you as a drug dealer?
A. Yes ma'am, I've arrested him myself. Okay, now the Mexican male--excuse me--I don't know his name but he's been in the area for quite a while and he walked away in a very slow--at a very slow pace.
Q. When you saw that happen, what did you do at that time?
A. Okay, at that time I let the two individuals walk away and I stopped to get out to speak with the occupants of the vehicle.
Q. Do you see any--either of those two occupants of the car in court today?
A. Yes.
Q. Would you point him out for the court, please.
A. Basil King.
Q. What did you do at that time?
A. Okay, at that point I had both subjects step out of the vehicle and due to the fact of what was taking place for my own safety I patted both subjects down. Okay, upon patting--I patted Basil down first and at that time I didn't feel anything that felt like a weapon or any type of awkward lumps in their clothing. Okay, at that point I went to the codefendant which is Charles Flynn Limberis--Limberis (phonetic), okay, upon patting him down there was a baggie of marijuana in his top pocket to where you could see the baggie sticking out and once I patted it I could feel that there was something inside the baggie so I pulled the baggie out and saw that it was a brown leafy substance which appeared to be marijuana. At that time I started to handcuff him. Okay, after I handcuffed him and started walking 'em to the car, that's when I observed out of the corner of my eye Mr. King attempting to conceal something in his wallet.
Q. When you saw him attempting to conceal something in his wallet, what, based on your experience as a police officer and working this area and drugs and so forth, what crossed your mind?
A. At that point in time I felt for sure he was definitely concealing some type of drug of some sort. Okay, especially since I just got done arresting his buddy for possession itself and the fact that Daryl Galloway was at the window. That gave me reason to believe that he was definitely concealing something illegal.
Q. Okay, what do you do?
A. Okay, at that point I walked over to Basil and I asked him to hand me his wallet. Okay, when he handed me his wallet, I put it in my hand and there was a very large lump to where you could tell it wasn't a piece of paper or anything like that, that there was something inside of it. Upon opening up the wallet, I pulled out a aluminum foil--something--a big ball of aluminum foil. Upon opening that up, there was a powdery substance which appeared to me to be heroin, either heroin or cocaine.
Q. Did you arrest the defendant at that point?
A. Yes ma'am, at--at that point I placed him under arrest for possession of illegal--a controlled substance.
The pertinent law is...
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