State v. Dilyerd
| Decision Date | 04 April 1985 |
| Docket Number | No. 64956,64956 |
| Citation | 467 So.2d 301,10 Fla. L. Weekly 192 |
| Parties | 10 Fla. L. Weekly 192 STATE of Florida, Petitioner, v. Robert Earl DILYERD, Respondent. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen., and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for petitioner.
James B. Gibson, Public Defender and David A. Henson, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.
This cause is before us on a petition to review a decision of the Fifth District Court of Appeal reported as Dilyerd v. State, 444 So.2d 577 (Fla. 5th DCA 1984). We have jurisdiction because of direct and express conflict with State v. Brown, 395 So.2d 1202 (Fla. 3d DCA), review denied, 407 So.2d 1102 (Fla.1981). Art. V, § 3(b)(3), Fla. Const.
The incident with which we are concerned took place in an orange grove on the night of 5 September 1981. The owners of the grove were redeveloping the area into private housing and had been bothered by teenagers using the grove for drinking parties. The police had been asked to check the area and remove trespassers. On the night in question, a deputy sheriff noted a car parked in the area with two male occupants, one of whom was sitting in the driver's seat. When the deputy shined his spotlight into the car, the passenger leaned forward and appeared to do something with his hands on the floorboard of the car. The deputy summoned a back-up deputy and approached the car from the passenger's side. He obtained identification from the occupants and waited for the back-up deputy, who arrived within a minute. When the back-up deputy arrived, the occupants were ordered from the car. It is not clear whether the occupants were subjected to a pat-down search: the passenger occupant testified at the suppression hearing that they were not; the deputy testified he had no present recollection because of the passage of time, but that they probably were because it was his standard procedure to do so. In any event, the deputy searched under the passenger seat while the back-up deputy watched the two males. At no time did the officers draw their weapons. The deputy discovered a vial of cocaine under the passenger's seat and, after the arrests, a later search of the trunk revealed marijuana. *
After charges were filed, respondent moved to suppress the cocaine on the ground the search and seizure were illegal because there was no warrant or probable cause to believe a crime had been committed, and the search could not be justified as incident to the officer's safety because both occupants had been removed from the vehicle. The trial court conducted a hearing at which the deputy testified that he conducted the search in order to determine if the passenger had concealed a weapon on the floorboard or under the seat. The deputy also testified that initially he had not intended to arrest the trespassers, only to warn them off. The trial judge denied the motion to suppress. Respondent then pled nolo contendere, reserving the right to appeal the denial of the motion to suppress.
On appeal the district court reversed the denial of the motion to suppress on the ground that the search violated the provisions of the fourth amendment, United States Constitution and article I, section 12 of the Florida Constitution. In doing so, the district court concluded that the Florida Stop and Frisk Law, section 901.151, Florida Statutes (1981), was not applicable to cars, only persons, and was certainly not applicable here because there was no probable cause to believe that either occupant had a weapon, and that "[f]urtive stuffing of unknown objects under the seat of a car may make one, curious or even suspicious ... but it does not give the police a right to search based on probable cause." Dilyerd, 444 So.2d at 578-79. The district court also concluded that the safety of the officers was secured when the two occupants moved outside the car and away from the supposed danger zone. In reaching its decision, the district court characterized the search as a hunting expedition on the basis that the officer's assertion that the search was to protect the officers' safety rang hollow.
In Hetland v. State, 387 So.2d 963 (Fla.1980), we commended and adopted the opinion of the district court in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979). In that opinion Judge Danahy, writing for the court, concluded "that the Florida Stop and Frisk Law was not intended to, and does not, impose any higher standard than that of the Fourth Amendment." Id. at 836. We agreed then and, if anything, agree even more so today in view of the 1982 amendment to article I, section 12 of the Florida Constitution which specifies:
This right [against unreasonable searches and seizures] shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
The United States Supreme Court has recently issued a definitive statement on stop and frisk law, as applied to motor vehicles, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long the Court reviewed Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny and reached numerous conclusions and holdings which are directly on point here:
[I]nvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers....
... [S]uspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed....
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392 U.S., at 21, 88 S.Ct., at 1880. "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id., at 27, 88 S.Ct., at 1883. If a suspect is "dangerous," he is no less dangerous simply because he is not...
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