R.R. v. State, 97-3219

• Decision Date: 31 July 1998
• Docket Number: No. 97-3219,97-3219
• Citation: 715 So.2d 1062
• Parties: 23 Fla. L. Weekly D1805 R.R., a Child, Appellant, v. STATE of Florida, Appellee. Fifth District
• Court: Florida District Court of Appeals

Page 1062

715 So.2d 1062

23 Fla. L. Weekly D1805

R.R., a Child, Appellant, v. STATE of Florida, Appellee.

No. 97-3219.

Fifth District.

July 31, 1998.

James B. Gibson, Public Defender, and Andrea J. Surette Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, M., Senior Judge.

This is an appeal from a delinquency adjudication and commitment. The juvenile entered nolo contendere pleas to possessing cocaine and to violating community control, specifically reserving the right to appeal the denial of his motion to suppress.

At the suppression hearing, Deputy Sheriff Hopkins testified that he was travelling in his patrol car when he saw a blue minivan driving in the emergency lane. Hopkins stopped the van based on this traffic infraction, and ordered the driver, the juvenile appellant, to step out of the van. As the juvenile approached him, Hopkins stated that he saw a long slender object in appellant's front pants pocket. Concerned that the object might be a knife, Hopkins conducted a pat down search of appellant's clothing. After conducting the pat down, Hopkins believed the object was a cigar tube. He then asked appellant what the object was, and appellant replied that it was "nothing." Hopkins then asked if he could see it. Appellant pulled out the object, which was in fact a cigar tube and handed it to Hopkins. The deputy testified that it felt light. The deputy opened the tube, looked inside, and discovered a piece of crack cocaine. Deputy Hopkins testified that he feared the tube may have contained a weapon. However, he articulated no reason for this fear. Appellant gave no indication that he was carrying a weapon, and the deputy admitted that he had never in his experience found a weapon concealed inside a cigar tube.

At the suppression hearing appellant argued that the deputy conducted an unlawful search. As the "request" to produce the item was in the coercive context of a traffic stop and pat down, counsel maintained that appellant was not free to ignore this directive, and his handing over of the object was not a voluntary act, but mere acquiescence to the officer's authority. Without voluntary consent, counsel asserted that the deputy could not legally search the tube because he had no probable cause to believe that the object contained contraband. In denying the motion to suppress, the trial court stated on the record that "the handing of the cigar tube from the juvenile to the law enforcement officer was a voluntary and consensual act."

Because of the valid traffic stop and the bulge in appellant's pocket, the deputy was entitled to conduct a protective pat down search for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also § 901.151, Fla. Stat. (1997). Once the officer determined from the pat down that the object was not a weapon, any further search exceeded the scope of a Terry search. See C.G. v. State, 689 So.2d 1246 (Fla. 4th DCA 1997) (stop and frisk may not extend beyond pat down of suspect's outer clothing unless officer concludes that suspect has a weapon). Thus the search of the object would be permissible only if there was a consent to search given by the appellant.

Whether the...