State v. Burns, 96-2645

• Decision Date: 15 August 1997
• Docket Number: No. 96-2645,96-2645
• Citation: 698 So.2d 1282
• Parties: 22 Fla. L. Weekly D1950 STATE of Florida, Appellant, v. Phillip Dewayne BURNS, Appellee.
• Court: Florida District Court of Appeals

Page 1282

698 So.2d 1282

22 Fla. L. Weekly D1950

STATE of Florida, Appellant, v. Phillip Dewayne BURNS, Appellee.

No. 96-2645.

District Court of Appeal of Florida,

Fifth District.

Aug. 15, 1997.

Rehearing Denied Sept. 17, 1997.

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

J. Edwin Mills, Orlando, for Appellee.

ANTOON, Judge.

The state appeals the trial court's order suppressing cocaine seized from the defendant, Phillip Dewayne Burns. We reverse.

The defendant and a passenger were driving north on the Florida Turnpike when their car was stopped for speeding by an Orange County deputy sheriff. The deputy instructed the defendant to exit the vehicle with his driver's license; the defendant complied. However, as he exited the vehicle, the defendant informed the deputy that his driver's license was suspended. Upon inquiry by the deputy, the defendant stated that he and his passenger were traveling to Georgia. Meanwhile, the passenger upon similar inquiry from the deputy stated that they were returning from Georgia. The deputy questioned the passenger how that was possible when the vehicle was traveling north, and the passenger responded that he was coming from Florida. The deputy advised the passenger that they were in Florida, at which point the passenger stated that he did not know where they were coming from. These inconsistent stories caused the deputy to suspect that "there was potential criminal activity taking place." As a result, he requested the assistance of a K-9 unit. The K-9 unit arrived while the deputy was completing the defendant's citation for driving with a suspended license.

During a narcotics sweep of the exterior of the car, the dog alerted to the scent of narcotics. Following the alert, the deputy advised the defendant and his passenger that the dog had alerted and that, as a result, he would first pat them down for weapons and then search the vehicle. At the suppression hearing, the deputy explained that the pat-down was for officer safety:

I was thinking that the defendant possibly had a weapon on him and that if I didn't retrieve it or locate it before I put him in the back of my car, myself or other deputies who are assisting me on the scene could have possibly been injured or killed by a weapon.

He further testified that he had conducted the pat-down because, based on his training and experience, he had learned that when drugs are found in automobiles it is common practice that weapons are also present.

The pat-down of the defendant revealed a hard, solid substance in the seat of the defendant's pants. The deputy, who had been trained in the identification of narcotics, believed the substance to be packaged contraband. He testified that, in a majority of his drug-trafficking cases on the turnpike, drugs have been found on the suspect's body, particularly in the groin area. Once the deputy suspected that contraband was present, he handcuffed the defendant and removed the item. Upon removal, the deputy discovered 54 grams of powdered cocaine packaged in two condoms. This cocaine was the subject of the defendant's suppression motion.

The trial court granted the defendant's motion to suppress, stating that it was reluctant to extend the holdings of Jordan v. State, 664 So.2d 272 (Fla. 5th DCA 1995), and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), in order to uphold the instant seizure. Specifically, the trial court concluded that the seizure was improper because the deputy knew that the object was not a weapon and the deputy was not in fear for his personal safety.

The state appeals this ruling, arguing that the trial court erred in granting the motion to suppress because the seizure of the cocaine was predicated upon a lawful pat-down search. We agree.

Florida's Stop and Frisk Law, section 901.151, Florida Statutes (1995), provides in pertinent part:

(5) Whenever any law enforcement officer authorized to detain temporarily any person ... 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....

In State v. Webb, 398 So.2d 820, 825 (Fla.1981), our supreme court explained that, although the statute uses the term "probable cause," the legislature intended to adopt the federal standard for stop and frisk and not a stricter standard. Thus, under our Stop and Frisk Law, a law enforcement officer must possess only a reasonable suspicion that the suspect is armed with a dangerous weapon in order to justify a stop and frisk. Id. at 824. The United States Supreme Court noted that reasonableness "depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Maryland v. Wilson, --- U.S. ----, ----, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997)(quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)). While there is no bright-line rule to determine whether the scope of police conduct was reasonable, our evaluation is guided by "common sense and ordinary human experience." United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994)(quoting United States v. King, 990 F.2d 1552 (10th Cir.1993)).

Here, the deputy certainly possessed a reasonable belief that the defendant was armed and posed a danger to his safety so as to warrant a pat-down search. In this regard, the police dog alerted to the presence of narcotics during the course of a valid traffic stop. This alert, coupled with the deputy's experience regarding the association of weapons and drugs, eliminated the possibility that the deputy's "interference" was arbitrary. Thus, we agree with the trial court that this was a valid pat-down search under section 901.151 and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In so ruling we recognize that, without the benefit of a frisk, the deputy would have been in a precarious situation because he would not have known whether the defendant was armed. We agree with the opinion expressed by the second district in King v. State, 696 So.2d 860 (Fla. 2d DCA 1997), that law enforcement officers should not be required to take such risks. Clearly, under circumstances such as these, a defendant's right to personal security free from arbitrary interference is outweighed by the public's interest in officer safety.

However, we disagree with the trial court's conclusion that the seizure of the drugs from the seat of the defendant's pants was unlawful. In Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993), the United States Supreme Court held that an officer may seize illegal contraband discovered during a lawful Terry stop if the object's contour or mass makes the incriminating nature of the contraband immediately apparent. The Court cautioned that the pat-down search must fall within the confines of Terry; that is, the officer may not squeeze, slide, or otherwise manipulate the object, once it is clear that the object could not reasonably be a weapon. Id. at 378-79, 113 S.Ct. at 2138-39. Here, the deputy's conduct was in compliance with that standard. In this regard, the deputy specifically testified that, upon feeling the object, he immediately determined that it was cocaine. Accordingly, since the deputy detected the contraband during a lawful pat-down search, he had probable cause under the "plain feel" doctrine to reach into the defendant's pants and remove the contraband.

In closing, we agree with the trial court that the plain feel doctrine is not without constraints. In fact, this court has previously ruled that, in order for the state to rely upon the plain feel doctrine, the officer must testify that he could identify the contraband based upon his specific, personal experience as an officer. See Thomas v. State, 644 So.2d 597 (Fla. 5th DCA 1994). See also Jordan v. State, 664 So.2d 272 (Fla. 5th DCA 1995). In this case, the deputy specifically testified that he had attended a forty-hour training school offered by the Institute of Police Technology and Management in drug identification, concealment areas, and indicators on drug traffickers. He also stated that he lectures other officers on drug identification, trafficking patterns, techniques, and indicators. The defendant failed to produce any evidence challenging the deputy's training, experience, and skill with regard to identifying contraband. See State v. Fernandez, 526 So.2d 192 (Fla. 3d DCA), dis'd, 531 So.2d 1352 (Fla.1988).

REVERSED and REMANDED.

COBB, J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, Judge, dissenting.

I respectfully dissent. Although I agree that a deputy does not have to put his or her life at risk when he or she detains a person, I disagree that the right to detain automatically carries with it the right to search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Florida's Stop and Frisk law have a two-tiered approach: the...