Shaw v. State, 91-3680

• Decision Date: 22 December 1992
• Docket Number: No. 91-3680,91-3680
• Parties: 18 Fla. L. Weekly D108 David Tyrone SHAW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 552

611 So.2d 552 18 Fla. L. Weekly D108 David Tyrone SHAW, Appellant,
v.
STATE of Florida, Appellee. No. 91-3680. District Court of Appeal of Florida,
First District. Dec. 22, 1992.

Page 553

C. Richard Parker, Public Defender; Diane Elizabeth See, Assistant Public Defender, Gainesville, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

Appellant, David Tyrone Shaw, pled nolo contendere to one count of possession of cocaine, reserving the right to appeal the trial court's denial of the motion to suppress evidence. He was adjudicated guilty of the offense pursuant to a final judgment and sentence, and was placed on probation for a period of three years. Appellant does not contest the initial stop of the vehicle in which he was a passenger. At issue is whether the subsequent pat-down weapons search and seizure of cocaine were lawful. The facts presented in this record lead us inescapably to conclude that Sergeant Lee failed to articulate a valid basis for performing a weapons pat-down pursuant to section 901.151, Florida Statutes (1991), and that the state failed to lay an adequate predicate to demonstrate that the officer had probable cause to conduct the search that led to the seizure of cocaine. Because the search was unauthorized and unlawful, the evidence seized as a result thereof was illegally obtained and should have been suppressed pursuant to section 901.151(6). We reverse.

Shortly after midnight on May 11, 1991, Sergeant Lee of the Alachua County Sheriff's Office stopped the Toyota in which Shaw was riding along Interstate 75 because it had no operable tag light. The automobile had an Alabama license plate and was driven by John Reynolds. The officer ordered the driver to get out of the car and informed him that the absence of the tag light was the basis for the stop. The driver told Sergeant Lee that he had been visiting his mother in Bradenton and was heading home to Alabama. He was not carrying a driver's license, and Lee did not run a computer check to determine whether Reynolds had a valid license. The driver told the officer that Appellant was the owner of the vehicle. The officer instructed Reynolds to walk to the front of the patrol car.

The officer then spoke to Shaw, who produced the vehicular registration form showing that he was the owner. In testimony at the suppression hearing, the officer described Appellant as "obviously nervous," with his voice trembling and his weight constantly shifting. Shaw kept his hands low in his lap and "always kept a hand down," even when he reached into the glove compartment. He told Sergeant Lee that he and Reynolds had been to St. Petersburg to visit Shaw's cousin. The officer instructed Appellant to go to the patrol car where Reynolds was.

After doing some paperwork, the officer informed the two men that they were free to leave. Shaw and Reynolds walked back to the Toyota, and the officer called out to Appellant: "Mr. Shaw, do you have anything illegal in your car, such as--guns, drugs, or contraband?" Although Shaw replied that he had none of the above, Lee described him as extremely nervous and unable to remain still. Apparently, the officer also requested Shaw's consent to search the Toyota, but no search of the car was conducted then.

Lee testified that the men's conflicting accounts of their prior whereabouts led him to believe that something was amiss, but he was not sure whether there was a weapon or what the circumstances were. Before exiting the vehicle, Appellant had seemed to be trying to conceal something. Although Shaw was not aggressive, the officer said he felt that Shaw might be about to fight him or flee. Defense counsel pointed out that, in a prior deposition, the officer had said that if Shaw had waited there very long, Shaw might have fainted.

The appellate briefs are anything but clear on one critical point. Apparently, in response to the officer's question about contraband and request for consent to search, Shaw turned around in such a way

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that Sergeant Lee first observed a round bulge in Shaw's right front pocket. This occurred after the officer had told Shaw and Reynolds that they were free to leave. Lee did not say anything right then about what he saw in the pocket. A second officer, Deputy Troiano, arrived at the scene of the stop.

A conversation ensued about the car registration and the driver's license, and then Lee instructed Appellant that he was going to frisk him on the outside to make sure that the bulge was not a weapon. When asked whether he had anything in his pockets, Shaw said he had $50. Lee performed a pat-down and felt small, hard individual squares of rock or some other like substance. The officer testified that he did not feel anything that he believed was a weapon. Instead, he thought Shaw had crack cocaine in his pocket. The officer testified that Appellant was not free to leave at that point.

The suspect asked for permission to urinate and was escorted to a more secluded nearby spot because Lee thought that Shaw might try to rid his pocket of its contents. Lee again asked about those contents, whereupon Shaw replied: "Why are you doing this to me?" The officer felt the outside of the pocket again and asked: "Is that drugs in your pocket?" Appellant moved around toward the side of the patrol car, and Sergeant Lee reached down into the pocket, pulled the tip of a bag up to the top of the pocket, and saw what appeared to him to be crack cocaine. He placed Shaw under arrest and, during a subsequent search, found $50 in the pocket where the cocaine had been concealed. Lee testified that, although the drug detection canine was in the patrol car, he had not been retrieved because the officer did not believe the dog could be used to search a person. The suspected cocaine field-tested positive and weighed 28.5 grams. The sheriff's department seized the Toyota. Upon verification of the driver's denial of having any knowledge that Shaw had the cocaine, Reynolds was released from custody.

Section 901.151(5), Florida Statutes (1991), the Florida Stop and Frisk Law, states:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

The meaning of "probable cause" to support a valid frisk is different from the stricter "probable cause" standard that must justify a search warrant or an arrest. State v. Webb, 398 So.2d 820, 824 (Fla.1981); Daniels v. State, 543 So.2d 363, 365 & n. 1 (Fla. 1st DCA 1989). "A valid stop does not necessarily mean that there can be a valid frisk." Webb, 398 So.2d at 822. In Webb, the Florida Supreme Court held that under the exception created in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and codified in section 901.151, "a law enforcement officer, for his own protection or the safety of others, may...