McCarthy v. State, 88-0443
| Decision Date | 11 January 1989 |
| Docket Number | No. 88-0443,88-0443 |
| Parties | 14 Fla. L. Weekly 169 Peter McCARTHY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerold H. Reichler, North Miami Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Peter McCarthy, appealed from an order of probation entered upon a nolo contendere plea after denial of appellant's motion to suppress.
The essential facts presented at the suppression hearing were that the arresting officer, while on routine patrol around 10:00 p.m. in Davie, received an anonymous tip that a dope house had opened in a particular apartment complex. The officer went to the complex and set up surveillance, during which time he observed a young black male sitting across from one of the apartments. Later, he saw a vehicle pull into the parking lot. The black male driver, appellant, walked from his car toward the young black male. The young black male got up and met appellant, they spoke briefly, and went inside the apartment under surveillance.
The officer then started walking toward the apartment. Some thirty seconds later, appellant came out of the apartment facing away from the officer and talking to the young black male. Upon seeing the officer, the young black male slammed the door shut and remained inside the apartment. Appellant, however, walked quickly away from the apartment. At this point, the officer called to appellant and asked him to stop and come over to where he was standing. Appellant continued to walk away until the officer made a second, louder request for him to stop. Appellant then turned around and started walking toward the officer.
The officer testified that, as appellant was walking toward him, appellant was holding his elbow and hand close to his hip and he became concerned that appellant may have a gun. So the officer asked appellant for identification and asked him "to pat himself down." As appellant was patting himself down, the officer grabbed his right elbow, lifted up his shirt and discovered a gun, the butt of which he says he noticed sticking out from under appellant's shirt.
Appellant was charged with carrying a concealed firearm. When the trial court denied his motion to suppress the firearm, appellant pled nolo and was placed on probation.
The issue here is whether the officer had a founded suspicion to stop appellant in the first instance. We hold he did not.
A founded suspicion, sufficient to justify a stop is a suspicion which...
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