Sommer v. State

• Decision Date: 21 February 1985
• Docket Number: No. 83-277,83-277
• Citation: 465 So.2d 1339,10 Fla. L. Weekly 495
• Parties: 10 Fla. L. Weekly 495 Lothar SOMMER a/k/a Randall Flamme, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1339

465 So.2d 1339

10 Fla. L. Weekly 495

Lothar SOMMER a/k/a Randall Flamme, Appellant, v. STATE of Florida, Appellee.

No. 83-277.

District Court of Appeal of Florida Fifth District.

Feb. 21, 1985.

Rehearing Denied March 29, 1985.

James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a judgment in a drug possession case. The issue on appeal is the propriety of the court's denial of a motion to suppress the drug evidence. We affirm.

At the time Officer Long came on duty for his day shift as a police patrolman he was told there was a "suspicious" vehicle parked on the beach and earlier that morning other officers had asked the driver to leave with the vehicle. When Long came upon the legally parked vehicle at 7:30 that morning he found two males asleep in the car. The city has an ordinance against sleeping on the beach so the officer "checked out the subjects." Appellant gave his name as Randall Flamme and told Long his date of birth. He had no identification. Upon running his name "through the computers" the officer determined appellant was wanted in Ft. Lauderdale on a warrant for a misdemeanor offense--driving with no driver's license. Officer Long arrested appellant on the warrant and put him into the police car. Appellant's companion did not have a valid driver's license so the officer impounded the car for safekeeping. The officer did not offer appellant an opportunity to find an alternative to the police impoundment of the vehicle.

Before the car was towed away, the officer searched it to inventory its contents. The search revealed, in addition to cameras, telephoto lenses, a suitcase containing ten to twelve motel keys, two baggies of substances which later proved to be marijuana, LSD, petazocine and phentermine. The baggies were found in the car's glovebox. Appellant was charged in four counts with having unlawfully possessed these drugs.

Appellant raises two grounds on appeal. One, that the court erred in denying his motion to suppress because the officer had no right to initially stop or question or detain him. Two, that before impounding his vehicle and inventorying it the officer should have offered to allow him an alternative method of safekeeping.

As to the first point on appeal we believe this case is controlled by Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert. den. 104 S.Ct. 1330, 79 L.Ed.2d 725 (Fla.1984).

In Lightbourne it was said by our supreme court that:

The defendant argues that his detention by Officer McGowan prior to his arrest on the concealed weapons charge constituted an illegal stop under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As a result, defendant argues, all items seized as a result of the "illegal" stop should be suppressed from evidence as "fruits of the poisonous tree" from which they issued. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

We find, under the circumstances of this case, that no unlawful intrusion occurred when Officer McGowan approached Mr. Lightbourne for the purpose of investigating a suspicious car called to his attention by a concerned citizen of the community. Although defendant is correct in his assertion that the officers had no probable cause or well-founded suspicion that the defendant was about to commit or had committed any crime, under the instant facts such a showing was not necessary. The officers were responding to a call and were not acting on their own "hunch" as in the "roving patrol" cases.

In Terry, the Supreme Court noted that "[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street." 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring). This is so even under normal conditions with officers having no concrete suspicion on which to rely. Of course in such situations a person would be under no duty to remain, and could continue on his way if he chose to do so. That person, instructed the Terry Court, "absent special circumstances may not be detained or frisked but may refuse to cooperate and go on his way." Id. (Emphasis added.)

There exists, therefore, a distinction between an intrusion by police amounting to a "seizure" of the person and an encounter which intrudes upon no constitutionally protected interest. Terry v. Ohio; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); United States v. Elmore, 595 F.2d 1036 (5th Cir.1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

Officer McGowan's investigation of the suspicious vehicle in this case does not rise to the level of an unconstitutional stop or seizure. Officer McGowan simply approached the parked car, asked defendant a few simple questions as to the reason for his presence there, his current address, and then ran a routine check on defendant's car and identification. Surely the average, reasonable person, under similar circumstances, would not find the officer's actions unduly harsh. There is nothing in the record that would indicate that prior to defendant voluntarily relinquishing his driver's license to Officer McGowan he was not free to express an alternative wish to go on his way. The Court need not consider here the question of what would happen if a citizen, asked for identification under somewhat similar conditions, and who upon declining to surrender such identification, was placed under arrest. The implication is that in reality, rather than theory, one who has been so confronted by an officer is not free to leave.

The Supreme Court has repeatedly acknowledged the need for police questioning as a tool for effective enforcement of our criminal laws. United States v. Mendenhall. Florida courts have recognized that, in this context, law enforcement officers can indeed initiate contacts with citizens without creating a stop and seizure situation.

In State v. Rawlings, 391 So.2d 269 (Fla. 4th DCA), petition denied, 399 So.2d 1145 (Fla.1981), an individual heard some shots outside his home and, upon investigating saw someone outside, but could not identify him. He called the police who arrived on the scene to find the defendant and a woman on the street in the vicinity. The officer engaged the defendant in conversation and while doing so, noticed the outline of a gun in his back pocket. The officer then conducted a pat-down search which revealed a .25 caliber pistol. The court in Rawlings held that the police in that case did not have a founded suspicion to justify a detention of the defendant. However, while the court agreed that there was insufficient evidence of an articulable basis of founded suspicion presented at the hearing on the motion to suppress, it nevertheless found that the police activity in this case did not constitute a detention of the defendant. Thus no showing of founded suspicion was required to justify the encounter. The court went on to add:

A mere contact between a citizen and a police officer which evokes voluntary cooperation on the part of the citizen is not a 'seizure' within the meaning of the Fourth Amendment. If, during a lawful and extremely temporary encounter between a police officer and a citizen, probable cause is formulated to believe that the citizen is carrying a dangerous weapon, a frisk of that citizen's person is entirely justified to insure the safety of the police officer.

Id. at 270.

In Carter v. State, 370 So.2d 1181 (Fla. 4th DCA), cert. denied, 378 So.2d 343 (Fla.1979), the court, citing Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979), recognized that there would be instances where legitimate contact between police officers and citizens, not based upon founded suspicion of criminal activity or probable cause, might result in the subsequent arrest of the citizen for a crime detected by the officer as a result of the legitimate contact.

In the case sub judice we find that no "stop" or "seizure" of the defendant within the meaning of Terry and its progeny occurred prior to his removal from the car by Officer McGowan to conduct the pat-down search. Officer McGowan was simply performing his duty as a police officer to investigate a citizen complaint, motivated by a concern that the defendant might be in need of assistance. Once on the scene, the officer acted prudently for the protection of the safety of the concerned citizen and his neighbors in the community when he proceeded to check out the defendant's car and identification.

Given the fact that the initial contact was justified, the ultimate pat-down was also justified in that defendant's furtive movements and nervous appearance when observed by Officer McGowan formulated a reasonable ground to believe that the defendant was armed and potentially dangerous. United States v. Tharpe, 526 F.2d 326 (5th Cir.1976); Jackson v. State, 403 So.2d 1116 (Fla. 5th DCA 1981). The officer in this case acted with prudence and was entitled to execute the limited search for weapons which might be used to assault him. Terry v. Ohio.

Based on the foregoing, we hold the officer's initial contact with the defendant to have been legitimately initiated for the purpose of investigating the citizen's call regarding a suspicious vehicle. We further hold that such contact as is evidenced by these facts did not constitute a stop or seizure of the defendant under Terry principles. Finally, the objectively discernible actions of the defendant provided Officer McGowan with a reasonable ground for searching the defendant for dangerous weapons. As such, we therefore hold that the gun and subsequent items found as a result of the search of the...