State v. Hunter

• Decision Date: 19 February 1993
• Docket Number: No. 91-2810,91-2810
• Citation: 615 So.2d 727
• Parties: 18 Fla. L. Week. D525 STATE of Florida, Appellant, v. Michael Claude HUNTER and Jerry Jay Chicone, III, Appellees.
• Court: Florida District Court of Appeals

Page 727

615 So.2d 727

18 Fla. L. Week. D525

STATE of Florida, Appellant, v. Michael Claude HUNTER and Jerry Jay Chicone, III,

Appellees.

No. 91-2810.

District Court of Appeal of Florida,

Fifth District.

Feb. 19, 1993.

Rehearing Denied April 1, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellant.

James M. Russ and Steven G. Mason of Law Offices of James M. Russ, P.A., Orlando, for appellee Jerry Jay Chicone, III.

Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for appellee Michael Claude Hunter.

PETERSON, Judge.

The state appeals an order granting the motions of Michael Claude Hunter and Jerry Jay Chicone, III, to suppress evidence of, inter alia, illegal substances and drug paraphernalia discovered by Ocoee police officers in Chicone's pocket and in an automobile owned by Hunter in which Chicone was a passenger. We vacate the order of suppression.

At 11:02 P.M. on March 26, 1991, a 911 "open line" call ¹ was received from a gas station clerk who said only that she could not talk. Three Ocoee police officers were dispatched in separate vehicles to the gas station which was located at a major commercial intersection. One of the officers, Morris, later testified that he treated the dispatch as an emergency situation and presumed that it was a robbery "because it sounded like it could be." The officers arrived within a few minutes and observed a white Honda parked next to a gas pump. Hunter was seated in the driver's seat with the door open and Chicone was standing between the Honda and a gas pump on the passenger side. A lone female clerk was inside the service building located between two rows of gas pumps. She was extremely distraught, crying, shaking, and almost hysterical. At that point, the officers did Both men were ordered to the front of one of the police cars and told to keep their hands visible; they submitted to a patdown during which a hard, small, cylindrical object was felt in the front pocket of Chicone's baggy shorts. The officer conducting the patdown later testified:

not know why the clerk was upset since nothing else appeared out of order. The officers asked whether the two men by the Honda were involved, and she pointed to Chicone, saying, "The one in the white shirt."

I did not know what the man had. I didn't know if it was a syringe, as I indicated in my report, or some other type of stabbing weapon. You could be stabbed with a syringe. Especially with the problems of AIDS or anything else, I don't want to be stabbed.

When the officer removed the object from Chicone's pocket, it turned out to be a short, clear plastic straw coated with a white powdery substance. Chicone was immediately placed under arrest for possession of cocaine and drug paraphernalia. No contraband was found during Hunter's patdown, but he was not free to leave the scene. One of the officers testified at the suppression hearing that both Hunter and Chicone appeared to him to be "impaired."

Once the officers were assured that the two men posed no threat to their safety, they interviewed the clerk. During the ten-minute interview, she told the officers that Chicone had entered the store, selected a soft drink, and asked her if he could "bum" a cigarette. He then told the clerk that he had neither money nor gas. When the clerk asked what he was going to do, he came around to her side of the counter and, kneeling in front of her, made a lewd remark. He then offered her cocaine. He also told her that he knew the manager of the store and that, if she did not believe it, to call him on the telephone. That is when she faked the call and dialed 911.

The officers next approached Hunter, told him what they had found in Chicone's pocket, and, based upon Chicone's offer of cocaine to the clerk, asked Hunter whether any drugs were in the car. Hunter volunteered that the car was his and that there was a pipe in it that was used for smoking marijuana. The officers then asked whether they could search the car. Hunter first orally consented and then signed a written consent to search. While the officers awaited the arrival of a canine unit, a search of the Honda produced the marijuana pipe and, on the rear floorboard, a baggie that appeared to contain a small amount of marijuana.

The canine unit arrived at 11:50 P.M., and the dog alerted to the car's ashtray behind which were found three baggies containing small amounts of marijuana. When the dog pawed at the bottom of the passenger seat, a baggie containing a white powdery substance flew out of the car. It was later determined that the baggie contained cocaine. Hunter was then informed of his Miranda rights and was arrested.

The trial court suppressed the pipe and the contraband, finding that, while the original stop was valid, the patdowns were invalid. It also found illegal the continued detention of Hunter once the clerk had implicated only Chicone.

Several issues must be considered to determine whether suppression of the evidence was proper:

I. Whether the initial detentions of Chicone and Hunter were proper.

II. If the detentions were proper, whether the patdown searches were authorized.

III. Whether the scope of Chicone's patdown yielding the straw coated with cocaine was excessive.

IV. Whether Hunter's continued detention was improper, thus tainting his subsequent consent to search the Honda.

I. THE INITIAL DETENTIONS

The "Florida Stop and Frisk Law" allows a law enforcement officer who encounters any person under circumstances which reasonably indicate that such person has committed a crime to temporarily detain the suspect and ascertain identity and the circumstances that led the officer to Hunter and Chicone assert that the police cannot justify a stop and detention based upon information which is acquired after the stop. ² McCloud v. State, 491 So.2d 1164, 1166 (Fla. 2d DCA 1986); Ward v. State, 453 So.2d 517, 518 (Fla. 2d DCA 1984). They argue that the police cannot legitimize the detentions based upon after-acquired information obtained from the gas station clerk. Because we believe that the police had sufficient grounds to stop and frisk before learning of Chicone's behavior toward the clerk, we need not consider this argument. We do note, however, that the stops in McCloud and Ward were not based upon specific complaints by informants but were based solely upon observations of officers who were on routine patrol.

                believe that a crime had been committed.  Secs.  901.151(1), (2), Fla.Stat. (1991).  The reasonableness of this governmental intrusion is tested by weighing the need to search or seize against the invasion of privacy constitutionally guaranteed to a citizen.  Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).  In justifying a stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Terry, 392 U.S. at 21, 88 S.Ct. at 1880.  "[T]he facts [must] be judged against an objective standard:  would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?"  Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880.   To determine whether information is sufficient to support a reasonable suspicion, the court must assess the totality of the circumstances known to the law enforcement officer and determine whether an experienced law enforcement officer could draw inferences and make deductions that would raise a suspicion that the individual being stopped was engaged in wrongdoing.  Tamer v. State, 484 So.2d 583 (Fla.1986)
                

When the Ocoee police officers arrived at the scene pursuant to the 911 call, they did not know what to expect upon their arrival although they suspected that there was a robbery. What they witnessed was a lone, distraught clerk pointing in the direction of Chicone who appeared to be in the company of Hunter. The officers were faced with the alternative of either delaying action until learning the reasons for the 911 call and the distress of the clerk, whom they found pointing at Chicone upon their arrival, or first establishing security on the premises by neutralizing the two individuals who could pose a threat of danger to the clerk, the officers, or anyone who might happen onto the scene. We hold that the detentions of Hunter and Chicone were reasonable governmental intrusions as envisioned by the United States Supreme Court in Terry.

We hold that the officers reasonably suspected criminal activity was afoot where, within minutes of receipt of a late-evening 911 call, they arrived at a gas station attended by a lone clerk who was distraught and pointing in the direction of one of the two occupants of the premises and where the other occupant appeared to be the companion of the first. In so holding, we note that retail establishments of this type, often attended by lone clerks, are popular targets of armed robberies.

The Ocoee police officers were exercising a legitimate investigative function and exercised reasonable caution when they detained Chicone and Hunter, who reasonably appeared to be in Chicone's company. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d Hunter and Chicone cite numerous authorities to support their position that the stops were illegal because the officers did not have a reasonable suspicion that a crime had been committed. Most concern anonymous informants. ³ The instant case does not involve an anonymous informant. The clerk was an identifiable citizen informant when the police officers arrived at the source of the 911 call. Hunter...