Steele v. State, 89-2038

Decision Date07 May 1990
Docket NumberNo. 89-2038,89-2038
Citation561 So.2d 638
Parties15 Fla. L. Weekly D1247 Michael STEELE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Henry R. Barksdale, P.A., Milton, for appellant.

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

PER CURIAM.

Appellant Michael Steele appeals his adjudication of guilt and the sentence imposed for the offense of possession of drug paraphernalia. The issues for review are: (1) the trial court's denial of appellant's motion to suppress evidence, (2) the trial court's denial of appellant's motion for judgment of acquittal, and (3) the trial court's denial of appellant's requested jury instruction that possession of drug paraphernalia required the state to prove intent to use the drug paraphernalia. We affirm in part, and reverse in part.

A hearing on appellant's motion to suppress took place immediately before the trial of this cause. The evidence established that at 5:20 p.m. on March 3, 1989, narcotics officers responded to telephone calls reporting that several black males were standing at the back of the Escambia Arms apartments dealing in drugs. The officers traveled to the apartment complex in a police van. When the officers arrived, Deputy Salter observed a black male leaning in the passenger side of a brown Ford LTD automobile, where appellant was seated. The deputy stated that from her distance of fifteen feet, she saw the person standing outside the Ford pass an object to appellant, who was seated in the front passenger seat of the vehicle. The deputy testified that it was daylight, and she could see the object clearly. Immediately after the police van pulled up, the driver of the Ford began to back the automobile.

The sergeant in charge directed Deputies Salter and Williams to go to the passenger side of the automobile, while the other officers went to the driver's side. As Deputy Salter went around the front of the car, she saw appellant put a "white square-type substance" in his mouth. The deputy testified that, based upon her training and experience as a narcotics officer, she believed the white object to be crack cocaine. She said that Deputy Williams grabbed appellant by the neck to prevent him from swallowing the object in his mouth. Once the automobile was stopped, Deputy Salter removed appellant from the vehicle, and conducted a pat down of his person. She felt an object in appellant's right front pocket, and removed it. The object proved to be a crack pipe. The deputy then arrested appellant, and charged him with possession of cocaine and possession of drug paraphernalia.

During cross examination, Deputy Salter said she searched appellant solely because she saw him put an object in his mouth and swallow it. The deputy further stated that although she was searching for a weapon, her primary purpose was to determine whether appellant had any drugs. She said that when she patted the side of appellant's pocket, the object within felt like a knife. However, when she removed it, she found it was a crack pipe. Deputy Salter said that leaning into a vehicle is typical of a drug transaction in the Escambia Arms area. She stated she first approached the car because of the activity she observed, and she searched appellant because she saw the white object in his hand.

The trial court denied the motion to suppress, and the jury trial commenced. At trial, Deputy Salter repeated the testimony she had given at the suppression hearing. A Florida Department of Law Enforcement chemist testified that the crack pipe seized from appellant's pocket contained minute traces of cocaine residue. Upon completion of the chemist's testimony, the state rested its case in chief.

The defense then moved for judgment of acquittal, on grounds of insufficiency of the evidence to prove that appellant used the drug paraphernalia or that he possessed it with intent to use. The state argued that the jury instructions pertaining to possession of drug paraphernalia set forth only two elements, possession of drug paraphernalia and knowledge of the presence of drug paraphernalia. The trial court denied the motion for judgment of acquittal, deeming the chemist's testimony sufficient to submit the question to the jury.

Appellant testified in his own behalf. He denied that he swallowed anything, and denied ownership of the crack pipe. Appellant said that someone had placed the antenna wire, which had been used as a crack pipe, under the dashboard of the automobile. It rolled out onto the floorboard as the automobile was backed. Appellant said he knew what the object was used for, but maintained that he had never used it, and that he did not know who owned it. Appellant further stated that he does not use drugs, and has a provable medical condition which would preclude his ever using illegal drugs. He stated that he placed the pipe in his pocket, because he knew he would be suspected of wrongdoing if it were found in his presence. At the conclusion of the defense case, the defense moved for a dismissal on the grounds previously argued, i.e., that the state failed to make a prima facie case that appellant used or possessed with intent to use the drug paraphernalia in question. Defense counsel again referred the trial court to the statute, asserting that under its provisions the state was required to prove use or possession with intent to use the paraphernalia in question. The state responded that if intent to use the crack pipe was an issue, the evidence of possession made the matter a jury question. The motion for dismissal was denied.

At the charge conference, the trial court announced its intent to give the standard jury instructions, including the general instructions and the statement of the charge. Defense counsel then requested an additional jury instruction which would comport with the elements set forth in the statute as necessary to prove possession of drug paraphernalia. Upon ascertaining that the requested instruction had not been prepared in written form, the trial court stated that it would give the standard jury instruction as it was written.

During argument, defense counsel advised the jurors that it was the state's duty to prove that appellant used the pipe unlawfully, or possessed it with intent to use it unlawfully, not that he simply possessed it. The state advised the jurors that when they "listened to the instructions on the law from the Judge, [they would] find that the word intent is not in those two elements." In closing, defense counsel asked the jurors to look at the charging document, which accused appellant of possession and the intent to use.

As a preface to its instructions to the jury, the court observed that the jurors had been advised that statements of counsel were not the law, and that what the court says "is the law." With regard to the possession of drug paraphernalia, the trial court gave the following instruction:

Before you can find the defendant guilty of paraphernalia, the State must prove the following two elements beyond a reasonable doubt: One, that Mr. Steele had in his possession drug paraphernalia; two, that Mr. Steele had knowledge of the presence of the drug paraphernalia.

The jury found appellant not guilty of the Count I charge of possession of cocaine, but found him guilty as charged of Count II possession of drug paraphernalia. At proceedings of July 12, 1989, appellant was adjudged guilty, and sentenced to serve 364 days in the county jail, with credit for time served.

The first issue is directed to the denial of appellant's motion to suppress evidence. Both parties recite the appropriate guidelines and authority for determining the propriety of a "stop and frisk," pursuant to section 901.151, Florida Statutes, termed a codification of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Webb, 398 So.2d 820 (Fla.1981). That is, to pass constitutional muster, a temporary stop must be based upon reasonable or founded suspicion that the individual stopped has committed, is committing, or is about to commit a crime. Tamer v. State, 484 So.2d 583, 584 (Fla.1986); Webb, 398 So.2d at 822; Johnson v. State, 547 So.2d 699, 701 (Fla. 1st DCA 1989); Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989); R.E. v. State, 536 So.2d 1125, 1127 (Fla. 1st DCA 1988). While an officer may stop a vehicle on less than probable cause, a bare suspicion that its occupants are violating the law is insufficient. Coladonato v. State, 348 So.2d 326, 327 (Fla.1977).

The reasonableness of the officer's suspicion must be based on the totality of the circumstances, encompassing such factors as the time of day, the locale of the stop, the appearance and behavior of the suspect, and the officer's training and experience. Tamer, 484 So.2d at 584; Johnson, 547 So.2d at 701; State v. Hoover, 520 So.2d 696, 697 (Fla. 4th DCA 1988). The fact that the suspect is in a high crime area, without more, is insufficient to justify a stop. Johnson, 547 So.2d at 702; Hoover, 520 So.2d at 698. Moreover, a founded suspicion of criminal activity is not warranted by an officer's observation of a pedestrian leaning into a car in a high crime area. Hoover, 520 So.2d at 698.

In the instant case, the state focuses much of its argument on the propriety of the search conducted after the initial stop. However, as appellant maintains, the appropriate focus is the reasonableness of the stop itself. The circumstances of the initial stop in this case bear some similarity to the situations in L.D.P. v. State, 551 So.2d 1257 (Fla. 1st DCA 1989); Johnson; and King v. State, 521 So.2d 334 (Fla. 4th DCA 1988). In L.D.P., officers received an anonymous tip that there were several black males selling drugs on a specified corner. The officer responding to the call observed several black males, some on bicycles and some standing, who walked in different directions when t...

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