h. Other factors.   Back

(1) "A report of criminal activity in the area will not justify a stop absent circumstances which create a reasonable suspicion that the person being stopped has participated or will participate in the criminal activity." In this case a deputy had been advised that burglaries of businesses were happening with unusual frequency on a particular street. At about 9:00 p.m. the deputy saw the defendant's car parked next to the woods at the edge of the grounds of the Wise Company building. Because of the reports the deputy decided to investigate. The officer turned his vehicle around and the defendant was driving away from the parking lot exit. The deputy stopped the car. There was no reasonable suspicion. Smith v. State, 637 So. 2d 343 (Fla. 2d DCA 1994).

(2) Officer had reasonable suspicion where: (1) he had personal knowledge of numerous suspensions on the defendant's licenses; (2) had previously stopped the defendant; (3) had last had knowledge that the defendant's license was suspended four to five weeks before the involved stop. State v. Leyva, 599 So. 2d 691 (Fla. 3d DCA 1992).

(3) Entry into home where warrant was being executed. No reasonable suspicion. Knight v. State, 566 So. 2d 8 (Fla. 1st DCA 1990 ).

(4) Late at night + Defendant on the side of a mini-warehouse compound + surrounded by a chain link fence + opened 24 hours a day + truck had an Alabama tag + officer knew there had been a number of burglaries there. There was reasonable suspicion. Premo v. State, 610 So. 2d 72 (Fla. 2d DCA 1992).

(5) An officer approached the defendant, who was standing on the porch of a house. That place was being watched for drug activity. The defendant was startled by the officer and attempted to hide something in his mouth. The officer put his hand on the defendant's shoulder and told him that if he just put drugs in his mouth he needed to spit them out because they would make him ill. The court held that the officer did not have reasonable suspicion. M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993).

(6) The defendant was in a group of juveniles who were consuming alcohol and interfering with traffic. The defendant was not doing either of these things. His presence in the group did not provide reasonable suspicion. C.E.P v. State, 704 So. 2d 1115 (Fla. 3d DCA 1998).

(7) The fact that the defendant was in a group of young people in front of a convenience store near a junior high school, in an area which was the site of prior disturbances, was not sufficient to create reasonable suspicion of criminal activity. C.K. v. State, 705 So. 2d 97 (Fla. 3d DCA 1998).

(8) §39.421(1)(b) authorizes an officer to take a child into custody for the purpose of returning the child to school, if the officer has reasonable grounds to believe the child is away from school without authorization. The defendant was a school age child. The officers saw him walking away from the school while all of the other children were walking towards the schools. The officers had a well-founded suspicion to stop the child to investigate the facts. K.A.C. v. State, 707 So. 2d 1175 (Fla. 3d DCA 1998).

(9) An officer did not have reasonable suspicion to justify an investigatory stop of a vehicle containing two African-American men, based on information that two African-American males had committed a robbery about 45 minutes before the stop on foot in a different part of the city. This was true despite the fact that the men who were detained were wearing the same kinds of clothing that the witnesses saw the offenders wearing. One was wearing a white T-shirt like one of the offenders. The court concluded that this was an extremely common item of clothing. The other was wearing a black and red basketball jersey like the other offender. The court concluded that at the time Michael Jordan was one of the most popular basketball players in the country and his black and red jerseys were prized by fans in all neighborhoods. "Given the time that had elapsed since the robbery, along with the distance from the scene of the crime, the items of apparel on the two men in the car pulled over by the officer could not justify a Terry stop for a robbery that was committed by two men who left on foot." State v. Mae, 706 So. 2d 350 (Fla. 2d DCA 1998).

(10) A deputy observed a man and woman parked at 4:30 a.m. and asked them to exit a vehicle. While questioning the man an officer discovered drugs on the ground under circumstances that clearly indicated that the man had placed them there. The officer arrested the defendant. The trial judge denied a motion to suppress. On appeal, the court reversed. "Here, the deputy admitted that when he first observed Mr. Rinehart, he did not suspect that his behavior constituted an imminent threat to public safety. Rather, he wanted Mr. Rinehart and the others to fill out field interview cards so that he could contact them in case something unusual was discovered later." Thus, the court concluded that the officer did not have sufficient articulable facts of loitering and prowling to justify the detention. Judge Altenbernd writes a well reasoned concurring opinion that reasonable suspicion of loitering and prowling should never the basis for an investigation stop due to the nature of that offense. Rinehart v. State, 778 So. 2d 331 (Fla. 2d DCA 2000).

(11) "Where an investigatory stop is prompted by an officer's lack of knowledge as to whether a person is engaged in any criminal activity, such a detention is supported by no more than a hunch.... In this case, the criminal activity that the police were investigating was trespassing.... When the officers approached appellant, they had only a ‘hunch’ that he was trespassing because they did not recognize him. They possessed no articulable facts to reasonably suspect that appellant had unlawfully entered or remained on the premises. The officers testified that they frequently patrolled the area, but they did not claim to know all of the residents by sight. Moreover, they acknowledged that ‘it's a highly transient area.’ The record does not contain a description of the physical layout of the apartment complex or an estimate of the number of residents housed there. Further, no evidence was presented about any common physical characteristics or traits of the complex's residents and visitors--such as race, ethnicity, or age--that would shed any light on whether there was anything ‘incongruous or unusual’ about appellant's presence in the neighborhood. See State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). In fact, Officer Zenelovic candidly acknowledged that when he decided to stop and investigate appellant, all he knew was that he did not recognize him. The state suggests that the officers’ ‘hunch’ that appellant was unlawfully on the premises, combined with the property owner’s request that the police investigate suspected trespassers, sufficed as legal grounds to stop and detain appellant.... We do not agree that an officer's bare suspicion that a person is trespassing, even when coupled with an agreement between the property owner and the police for officers to stop and investigate persons whom the officers do not recognize as residents, is sufficient for an investigatory stop and detention. A property owner’s grant of authority to police officers to investigate trespassing on the owner's premises does not confer any greater authority upon law enforcement during police-citizen contact than do our Constitution and laws. Officers still need a reasonable and articulable suspicion that a person is engaged." Slydell v. State, 792 So. 2d 667 (Fla. 4th DCA 2001).

(12) Officers were "conducting a premises check of the Days Inn, as part of the ‘trespass program,’ when they observed the Defendant walking back and forth on the first floor, approaching several motel room doors. The officers became suspicious because it was nighttime and the Defendant was walking back and forth, near the rooms without going inside. The officers then watched as the Defendant went to a car in the parking lot and got inside. The officers pulled their unmarked car up behind the vehicle in which the Defendant was sitting." One of the officers approached the vehicle and asked the defendant why he was there. The officer detained the defendant and as a result the officer discovered drugs. The defendant moved to suppress the drugs. The trial judge denied the motion. On appeal, the court reversed on the grounds that the officers did not have reasonable suspicion for the stop. "[T]he city police had a ‘trespass program’ with many city businesses whereby the owners of the businesses allow the police to conduct premises checks and enforce trespassing laws based upon affidavits which are signed by the owners and kept on file with the police. The motel in question participated in this program. The trial court relied on Flowers v. State, 755 So.2d 708 (Fla. 4th DCA 1999), in denying the motion. In Flowers, the police also were acting pursuant to the city's ‘trespass program’ and attempted to stop a suspect who they observed in the parking lot after the business was closed. ‘No trespassing’ signs were posted, and the suspect ran upon being approached by the police. Our court held that the officers were authorized to approach the suspect and inquire about his reasons for being in the parking lot. See id. at 710.... A stop to inform trespassers of an order to leave required under section 810.09(2)(b), Florida Statutes, is more akin to a ‘mere encounter’ than a ‘stop’ for constitutional analysis. This is not a stop based on founded suspicion, because the crime of trespass on unposted land does not occur until after the trespasser is warned to depart and fails to do so. Id. at 716 n. 2. Whether further detention is warranted depends upon whether the officer has a founded suspicion of criminal activity. In this case, the owner had authorized police to check for trespassers at the motel. There is no evidence in the record, however, as to the presence of any ‘no trespassing’ signs on the property. Appellant was seen walking back and forth in front of the rooms and then going to his vehicle and sitting in it. He was not observed attempting to enter any room. This conduct in and of itself does not raise a reasonable suspicion of criminal activity. Moreover, he returned to his car and was about to drive away when stopped by the officer. As in White v. State, 737 So.2d 1117, 1118 (Fla. 2d DCA 1999), ‘[a]ny suspicion that he was about to commit [a crime] was dissipated when he drove away.’" Griffin v. State, 800 So. 2d 345 (Fla. 4th DCA 2001).

(13) The defendant was parked at a store that had been the target of burglaries an officer detained the vehicle. As a result, the officer discovered contraband. The trial judge denied a motion to suppress. On appeal, the court reversed. "When Officer Seltzer ordered appellant outside his vehicle, he lacked a well-founded suspicion of criminal activity. Although it was late at night and appellant was in an area of past criminal activity, these facts do not amount to a ‘well-founded suspicion.’ Appellant was legally parked at the partially open gas station and he was not engaged in any observable unlawful activity. See State v. Levin, 452 So.2d 562 (Fla.1984)(adopting 449 So.2d 288 (Fla. 3d DCA 1983), and holding that simply being out on the street during late and unusual hours in area where crimes have been committed is insufficient for a stop); White v. State, 737 So.2d 1117 (Fla. 2d DCA 1999)(holding that police officer did not have reasonable suspicion to conduct investigatory stop of defendant's vehicle where businesses in the area had been robbed in the past, and defendant was driving back and forth in front of closed marina and then turned into parking lot of an adjacent motel that was open); Davis v. State, 695 So.2d 836 (Fla. 2d DCA 1997)(holding that officers lacked reasonable suspicion for an investigatory stop where defendant parked in wooded area next to a closed shopping mall which had experienced problems in the past); McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986) (holding that facts known to officers at time of stop did not reach level of well-founded suspicion where defendant parked his car late at night near a boarded up building under a ‘no trespassing’ sign). Ippolito v. State, 789 So. 2d 423 (Fla. 4th DCA 2001).

(14) The officer believed that the defendant lied when he said that he was parked in the parking lot because he was using the pay phone. "Likewise, the officer’s belief that appellant lied about using the pay phone does not rise to the level of reasonable suspicion. The officer conceded that he had only observed appellant for four or five minutes, and that he did not know whether appellant had used the phone before the officers arrived at the station. Moreover, an officer’s belief that an individual is lying does not, in and of itself, justify detaining him. Hill v. State, 561 So.2d 1245, 1247 (Fla. 2d DCA 1990)(‘Even though the officers were suspicious that appellant had stated an incorrect birth date, this could not justify the assumption that appellant had committed a criminal activity or was about to engage in criminal activity, which is the standard for detention.’). See also Johnson v. State, 640 So.2d 226, 227 (Fla. 5th DCA 1994)(officer’s belief that defendant lied to him about why he had gone to pizza parlor did not establish valid basis for investigative stop and search; while lying was morally wrong, it was not a crime unless under oath)." Ippolito v. State, 789 So. 2d 423 (Fla. 4th DCA 2001).

(15) The officer observed a legally parked vehicle at 5:00 A.M. .It attracted the deputy’s attention because she did not recognize it. As the deputy approached the car, she saw the defendant reclining in the driver’s seat with his hand on his lap. his hands were in the shape of fists with palms down. The deputy knocked on the window, asked the defendant his name, identification, and reason for being there. The defendant sat up and reached for the glove compartment. He could not reach the glove compartment with his right hand, so he stopped, came back with his right hand, and then produced his identification with his left hand. After producing his identification, the defendant put his left hand down by his side and leaned forward in the car, feeling around. The deputy could not see what the defendant was doing with his hands because the windows were tinted. She noticed an object in his right hand that she did not recognize. She then ordered the defendant out of the car. As a result drugs were found. The trial judge denied a motion to suppress based on the theory that the totality of the circumstances established a reasonable suspicion. On appeal, the court disagreed. "Taken together, they do not suffice to form a particularized and objective basis for reasonable suspicion of criminal activity." Miranda v. State, 816 So. 2d 132 (Fla. 4th DCA 2002)

(16) "While on routine patrol at approximately 12:25 a.m., the arresting officer witnessed a vehicle driven by Young pull into a driveway of a government apartment complex that was under construction. The officer passed Young’s parked vehicle and, knowing "the apartment was under construction and nobody should be there," turned his patrol car around, pulled behind Young’s vehicle-- thereby blocking the driveway’s exit--and activated his emergency lights. Although the officer’s suspicions were aroused when Young pulled into the unfinished apartment complex, the officer testified he did not believe that such conduct was illegal." As a result, the officer discovered drugs. On appeal, the court ruled that the trial court erred in denying a motion to suppress. The court found that the officer did not have a reasonable suspicion of criminal activity. Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002).

(17) "In this case, the facts show that the deputy spotted M.E.S. walking from behind the truck not more than ten minutes after it had been reported stolen. Additionally, M.E.S. gave a suspicious explanation as to why he was in the neighborhood. These circumstances justified a temporary detention to determine M.E.S.'s identity and the circumstances surrounding his presence in the area." M.E.S. v. State, 804 So.2d 537 (Fla. 2d DCA 2002).

6. If there was reasonable suspicion, what are the rules concerning the search or securing of information?  Back

a. Grounds and rules for pat down and search.  Back

(1) "Whether a reasonably prudent officer would be warranted in the belief, based on 'specific and articulable facts'... and not on a mere 'inchoate and unparticularized suspicion or "hunch" ... 'that he is dealing with an armed and dangerous individual.' " Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

(2) If the suspect was in a vehicle the areas of the passenger compartment of an automobile in which a weapon may be placed or hidden may be searched if the officer has a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 103 S.Ct 3469, 77 L.Ed.2d 1201 (1983).

(3) Florida law requires reasonable cause to believe that the defendant is armed before there may be a search of the person or vehicle. §901.151 Fla. Stat. (1989); Gipson v. State, 537 So. 2d 1080 (Fla. 1st DCA 1989); Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988); Thompson v. State, 551 So. 2d 1248 (Fla. 1st DCA 1989); Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); Hill v. State, 561 So. 2d 1245 (Fla. 2d DCA 1990); State v. Lewis, 518 So. 2d 406 (Fla. 3d DCA 1988); State v. Ruiz, 576 So. 2d 170 (Fla. 3d DCA 1988); Robinson v. State, 527 So. 2d 944 (Fla. 3d DCA 1988); C.H. v. State, 548 So. 2d. 895 (Fla. 3d DCA 1989); Wilson v. State, 547 So. 2d 215 (Fla. 4th DCA 1989); Warren v. State, 547 So. 2d 324 (Fla. 5th DCA 1989); State v. Worthington, 543 So. 2d 1313 (Fla. 5th DCA 1989); Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990); Premo v. State, 610 So. 2d 72 (Fla. 2d DCA 1992).

(4) While the statute requires "reasonable grounds" to believe the suspect is armed, that phrase has not been interpreted in the usual way. "[A]n officer must have some additional articulable suspicion to believe that the person stopped is armed with a dangerous weapon.... Although the reasonable founded suspicion necessary to justify a weapons frisk in the context of a stop does not rise to the level required for a search warrant or for an arrest, State v Webb, 398 So. 2d at 825, in order to go beyond a temporary stop justified by Terry v. Ohio the police must have 'some additional articulable suspicions that the person they have stopped may be armed with a dangerous weapon.'" Richardson v. State, 599 So. 2d 703 (Fla. 1st DCA 1992); Shaw v. State, 611 So. 2d 552 (Fla. 1st DCA 1992).

(5) The term "probable cause" to believe a subject has a weapon used in § 901.151 is 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." This is based on the decision in State v. Webb, 398 So.2d 820 (Fla. 1981). State v. Burns, 698 So. 2d 1282, 1284 (Fla. 5th DCA 1997).

(6) "As stated by the First District Court of Appeal in Harvey v. State, 703 So.2d 1113 (Fla. 1st DCA 1997), "‘The meaning of ‘probable cause’ to support a valid frisk is different from the stricter ‘probable cause’ standard that must justify a search warrant or an arrest. As used in [section 901.151(5)], ‘probable cause’ means reasonable belief or suspicion in conformity with Terry and other federal precedent. Id. At 1115 n. 2 (citations omitted).'" Smith v. State, 719 So. 2d 1018, 1022 (Fla. 3d DCA 1998), n.1.

(7) Officer lawfully stopped the defendant for a traffic violation. As the officer approached the car, the defendant put one hand down as if placing something under the seat of the car. The officer told the defendant to exit the vehicle. As he did, the defendant stuck one hand down the back of his trousers. "Instead of doing a weapons pat-down search of appellant, the arresting officer pulled back the waistband of Harvey's trousers and looked down between his underwear and buttocks to see what, if anything, appellant had put down the seat of his pants." The officer found drugs. The officer had no probable cause to believe the man had a weapon. The trial judge denied a motion to suppress. On appeal the court reversed. The court pointed out that pursuant to §901.151 the officer had to have probable cause to do a weapons search. The court noted, however, that "'The meaning of 'probable cause' to support a valid frisk is different from the stricter 'probable cause' standard that must justify a search warrant.' Shaw v. State, 611 So.2d 552, 554 (Fla. 1st DCA 1992). As used in subsection (5), 'probable cause' means reasonable belief or suspicion in conformity with Terry and other federal precedent. State v. Webb, 398 So.2d 820, 824-825 (Fla. 1981)." The court found that the officer did not meet this test. The court relied on Raleigh v. State, 404 So.2d 1163 (Fla. 2d DCA 1981), and Winters v. State, 578 So.2d 5 (Fla. 2d DCA), review denied, 589 So.2d 292 (Fla.1991). The court said: "It is clear to us that the arresting officer in the case at bar was more determined to search appellant's person to discover what had been hidden rather than to determine whether appellant was armed, which is the singular justification for the search incident to an investigatory stop." Furthermore, the search went beyond a pat-down and was improper for that additional reason. Harvey v. State, 703 So. 2d 1113 (Fla. 1st DCA 1997).

(8) If an officer creates the danger to himself by making an unlawful stop, the pat down and search for weapons is unlawful. Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993); Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992).

(9) Where the officer did not have reasonable suspicion for a stop, the officer had no right to pat down or search the defendant, where the defendant acknowledged that he had a knife in his pocket after the unlawful stop. "'[T]he officer would have had no reason to fear for his own safety had he not impermissibly stopped Appellant in the first place.'" Pritchett v. State, 677 So. 2d 317 (Fla. 1st DCA 1996).

(10) A pat down for weapons cannot be based solely on an officer's routine practice or the fact that the contact occurred in a high crime area. M.A.H. v. State, 559 So. 2d 407 (Fla. 1st DCA 1990); Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992). See also Lester v. State, 754 So. 2d 746 (Fla. 1st DCA 2000).

(11) A pat down search performed routinely for officer's safety as part of an investigatory stop is unlawful. "[A] protective pat-down search in connection with an investigatory stop is only permissive if the officer has probable cause to believe the subject is an armed threat." Hunt v. State, 700 So. 2d 94 (Fla. 2d DCA 1997).

(12) "Florida law allows police officers to conduct a pat-down search for weapons of detainees if they have a reasonable suspicion to believe that the person being detained is armed. (citations omitted) No such evidence is found in the record. The pat-down of Harris was done as a matter of routine practice, not based on any reasonable suspicion." Harris v. State, 790 So. 2d 1246 (Fla. 5th DCA 2001). See also C.Q. v. State, 801 So. 2d 304 (Fla. 5th DCA 2001).

(13) Where an officer lawfully detains the defendant he has a right to request the production of a driver's license as a way to determine the identity of the individual. State v. Ramos, 598 So. 2d 267 (Fla. 3d DCA 1992).

(14) "A request that a detainee produce identification, even a persistent or intrusive request, is appropriate under a Terry stop." State v. Aqqad, 637 So. 2d 255 (Fla. 2d DCA 1994).

(15) "As the statute and case law indicate, an officer must have probable cause to believe a suspect is armed before the officer can conduct a pat down search or frisk of the suspect to ascertain the presence of a weapon." This is true even where the officer lawfully detains the defendant based on reasonable suspicion. In this case the evidence was clear that "the officer did not have probable cause to believe that the appellant was armed with a dangerous weapon." Stalling v. State, 678 So. 2d 843 (Fla. 1st DCA 1996).

(16) The reasonableness of the stop was not challenged. The officer observed a bulge on the defendant's person which he reasonably believed to be a weapon or contraband. There had been several burglaries in the area where guns had been taken and the defendant was running while holding his side as if to conceal something. Upon stopping the defendant the officer lifted the defendant's shirt and noticed the butt of a pistol. He did this without patting the defendant down. The trial judge suppressed the gun. Based on Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the court reversed. There the court found "that an officer's conduct in reaching the spot where a gun was thought to be hidden without first conducting a pat down, was a limited intrusion designed to insure the officer's safety and was, therefore, reasonable." The same was true in this case. A pat down under the circumstances would have been futile. The officer reasonably believed that the object was a weapon or contraband. State v. Hernandez, 658 So. 2d 620 (Fla. 3d DCA 1995).

(17) The search of the defendant's pockets exceeded the proper scope of a pat down for officer's safety. Peterson v. State, 649 So. 2d 326 (Fla. 1st DCA 1995).

(18) An under cover agent was sitting in an unmarked car in a night club parking lot. The defendant approached him and asked for rolling papers "so he could roll a joint." The officer had just overheard the defendant ask two other people for rolling papers. When a marked patrol car rolled into the parking lot, the defendant ran. The undercover officer detained him and did a pat down, which revealed cocaine. The trial judge denied a motion to suppress. On appeal the court reversed. The court found that there was reasonable suspicion to justify a temporary detention, but not a pat down. "A pat-down for weapons is justified only where the evidence gives rise to reasonable suspicion that a suspect is armed and dangerous." There was no such evidence here. Thus, the pat down and subsequent seizure was unlawful. Angaran v. State, 681 So. 2d 745 (Fla. 2d DCA 1996).

(19) "A search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), conducted by an officer in a stop and frisk situation may not extend beyond a pat down of a suspect's outer clothing unless that pat down or other circumstances leads the officers to conclude that the suspect had a weapon on his person." The officer must have "'"some additional articulable suspicion to believe that the person is armed with a dangerous weapon."'" In Richardson v. State, 599 So.2d 703 (Fla. 1st DCA 1992), the court gives examples "including a suspect's furtive movements or a bulge in a suspect's clothing." In this case the officer had lawfully detained the defendant as a truant. He was transporting the child in the back of the police cruiser, but he had only done a cursory pat down of the defendant. As he was transporting the defendant, he noticed that the defendant was moving furtively as he placed something in his shoe. The officer also knew that many small weapons could be hidden. The officer made the defendant get out of the car and did a search, which revealed money that had been stolen from the school. The trial court accepted the officer's testimony that he feared for his safety and denied a motion to suppress. On appeal the court found that this was a reasonable inference and that the search was reasonable. C.G. v. State, 689 So. 2d 1246 (Fla. 4th DCA 1997).

(20) An officer made a stop without reasonable suspicion. The officer did a pat down. The officer saw a bulge after the search began. Even if he had noticed the bulge prior to the stop that would not have provided a founded suspicion. C.K. v. State, 705 So. 2d 97 (Fla. 3d DCA 1998).

(21) "Because of the valid traffic stop and the bulge in appellant’s pocket, the deputy was entitled to conduct a protective pat down search for weapons." R.R. v. State, 715 So. 2d 1062 (Fla. 5th DCA 1998).

(22) An officer had reasonable suspicion to believe that the defendant was about to shoot him and thus commit a crime. For that reason a temporary detention was proper. "Although the officer had not seen a weapon or been warned that appellant was armed, he had come upon appellant, who was dazed and confused, standing in the middle of the street. Appellant was unresponsive and was acting oddly. He appeared transfixed by the retreating figure of another man. When the officer was finally able to get appellant's attention, appellant began slowly backing away, putting his hands in his pockets. When asked not to do that, appellant then tried to reach behind his back despite the officer's repeated requests that appellant remove his hands from his pockets and refrain from putting his hands behind him." "In this instance, where the officer is conducting a consensual citizen encounter out of ostensibly humanitarian motives, and while attempting to discern the problem, makes a reasonable request of the individual not to put his hands in his pockets or behind his back, and the individual repeatedly refuses to comply with the officer's requests, the individual's right to personal security free from arbitrary interference is outweighed by the public interest in officer safety. Indeed, the officer's 'interference' here was not arbitrary; it was borne out of a genuine concern for his own safety based on appellant's repeated refusal to keep his hand in plain sight. In this setting, we believe that the intrusion on appellant's personal freedom was 'de minimis.'" King v. State, 696 So. 2d 860, 862 (Fla. 2d DCA 1997).

(23) See discussion above under section on consensual encounter. Stephens v. State, 656 So. 2d 531 (Fla. 2d DCA 1995).

(24) A pat down for weapons may be done based on the fellow officer rule. "Based on the collective knowledge of the officers working here as a team, probable cause existed to conduct a pat down of Smith. The pat down was valid because [Officer B’s} actions can be justified on the grounds that [Officer A], who was at the scene, was in possession of the underlying facts which justified [Officer B’s] actions." The court took this position despite the fact that no one asked Officer B to do a pat down. Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

(25) An undercover officer was "investigating street-level narcotics transactions when he observed three men conversing. One man handed currency to one of the other two and received a small item in return. He put the item in his pocket and rode away on his bicycle. The police stopped the bicyclist, searched him and found cocaine. But he refused to say which of the other two men sold him the drugs." The officer was unable to see which of the two men actually engaged in the exchange. Officers detained the two men because they had reasonable suspicion and did a patdown for articles and discovered drugs on the defendant, but no officer indicated that they believed the defendant had a weapon. The trial judge denied a motion to suppress. On appeal, the court ruled that the officer had reasonable suspicion to detain the two men, but they officer did not have sufficient grounds for the patdown. McCloud v. State, 787 So. 2d 218 (Fla. 2d DCA 2001).

b. Discovery of unthreatening object.  Back

(1) The Court considered the issue of "whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry." The Court concluded the answer is in the affirmative "So long as the officer's search stays within the bounds marked by Terry." The Court concluded that if an officer while lawfully performing a pat down for weapons authorized by Terry touches an object which he immediately recognizes as contraband he or she may seize that object. This is consistent with the "immediately apparent" standard for plain view established in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The Court applied these standards to the facts of this case and concluded that drugs were unlawfully seized from the defendant. In this case the officer lawfully detained the defendant and lawfully did a pat down for weapons. He found no weapons but he did touch a lump in the defendant's pocket, but he did not immediately recognize it as contraband. By examining it with his fingers he determined that it was crack cocaine. The Court concluded that "the officer determined that the item was contraband only after conducting a further search (beyond determining whether the defendant had weapons), one not authorized by Terry or by any other exception to the warrant requirement." Thus, the Court found the search and seizure unlawful. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L. Ed. 2d 22 (1993).

(2) Where an officer lawfully does a pat down for weapons and feels an object not believed to be a weapon, it may not be seized based on reasonable suspicion that it is contraband. It may be seized, however, if the officer has probable cause to believe that it is contraband. In this case there was probable cause because the object felt like peanut brittle and the officer's extensive experience indicated that the object was likely to be crack cocaine. Doctor v. State, 596 So. 2d 442 (Fla. 1992).

(3) An officer had reasonable suspicion for a detention, but the subsequent search was, nevertheless, invalid. § 901.151(5) permits an officer who has probable cause to believe that a person who is armed with a dangerous weapon to search that person "only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon." In this case the officer admitted that the defendant had done nothing to lead him to believe he was armed nor did the officer see anything that would justify such a conclusion. Even if there had been such observations, the search was still invalid because the officer failed to stop the search once he had assured himself that no weapons were present. In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L. Ed. 2d 22 (1993), the Court created a "limited 'plain view' exception to the Fourth Amendment's warrant requirement." There the Court found that it was impermissible for an officer, who has satisfied himself or herself that the suspect is not armed, to manipulate an object that he or she feels to determine whether it might be contraband. In the case at bar the officer felt a small object in the defendant's pocket, then "'took and rolled the object between [his] fingerprints to get a better feel....'" Such a procedure is improper. Howard v. State, 623 So. 2d 1240 (Fla. 2d DCA 1993).

(4) An officer told the court that when he felt a hard object during a pat down he was suspicious that it was cocaine, but he wasn't sure and that there was no way of knowing without seeing it. This was insufficient to establish probable cause for a search of the defendant's person. Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993).

(5) The officer's mere belief that an object may be cocaine is insufficient. Shaw v. State, 611 So. 2d 552 (Fla. 1st DCA 1992).

(6) Once concern for the officer's safety has been dispelled by a pat down, the intrusion cannot be extended to a general search for evidence. Thompson v. State, 555 So. 2d 970 (Fla. 2d DCA 1990 ).

(7) An officer lawfully stopped the defendant for speeding. The state argued that the officer had a right to do a Terry pat-down for possible weapons. When the officer searched the defendant he found marijuana. "The officer admitted at the suppression hearing that the object which he felt in Bruno's pocket did not appear to be a weapon. As was explained in Doctor v. State, 596 So.2d 442 (Fla. 1992), during the course of a legitimate weapons search, the police may only seize weapons or objects which reasonably could be considered weapons, even if the object may reasonably be suspected to be evidence of a crime." Bruno v. State, 704 So. 2d 134 (Fla. 1st DCA 1997).

(8) "Once the officer determined from the pat down that the object was not a weapon, any further search exceeded the scope of a Terry." The officer did a lawful pat down, but felt that the object was a cigar tube. He had no further basis for believing that the defendant had a weapon. R.R. v. State, 715 So. 2d 1062 (Fla. 5th DCA 1998).

(9) Even if the officer had the right to do a pat down, he did not have the right to ask the defendant to remove unidentified objects from his pocket. "There is no evidence in this record that the deputies had any reason to believe C.Q. or any other occupant of the car, was armed with a weapon or that they had such a belief. Absent a knowing and voluntary consent, Deputy Borows had no right to conduct a pat down or to ask C.Q. to remove anything from his pockets.... Police may not lawfully conduct pat-down searches based merely on routine or generalized safety concerns. Augustus v. State, 773 So.2d 104 (Fla. 5th DCA 2000).... [E]ven if C.Q. consented, Borows exceeded the scope of the search. Borows testified he felt something hard in C.Q.'s pocket, but he did not testify that he thought it was a weapon. He then ordered C.Q. to remove the lighters from his pocket, which he did. Seeing still another bulge, Borows ordered the yet to be discovered pipe to be withdrawn. But again, he did not testify he believed the bulge was a weapon, nor do the surrounding facts of this case indicate he could have had such belief. Borows' demand that C.Q. empty his pockets exceeded the scope of a lawful protective frisk for weapons, even had C.Q. consented to a weapon search." C.Q. v. State, 801 So. 2d 304 (Fla. 5th DCA 2001).

c. Type of crime.   Back

(1) Where an officer's experience with the type of crime for which the suspect is being detained results in a belief that persons involved in such activity might be armed, there is sufficient cause for a pat-down. Under certain circumstances the nature of the crime may be sufficient to justify a pat-down for weapons. The court stressed the fact that the defendant was involved in more than a simple street purchase. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992). The same principle does not apply "to suspected street dealers of small quantities of drugs." Kindell v. State, 562 So. 2d 422 (Fla. 5th DCA 1990).

(2) " '[C]ourts have been inclined to view the right to frisk as being 'automatic' whenever the suspect has been stopped upon the suspicion that he had committed, was committing, or was about to commit a type of crime for which the offender would likely be armed, whether the weapon would be used to actually commit the crime, to escape if the scheme went awry, or for protection against the victim or others involved. This includes such suspected offenses... As burglary.' " Quevedo v. State, 554 So. 2d 620 (Fla. 3d DCA 1989).

(3) Even where officers had reasonable suspicion that the defendant may have been engaging in a cocaine transaction on the street, they had no right to pat down the defendant based solely on their experience that cocaine dealers carry weapons. The officers saw no suspicious bulges and were not in fear for their lives. Hamilton v. State, 597 So. 2d 417 (Fla. 2d DCA 1992).

(4) Reasonable suspicion of a violent crime is sufficient to permit a pat down for weapons. State v. Hunter, 615 So. 2d 727 (Fla. 5th DCA 1993).

(5) Officers did not have probable cause to believe the defendant was armed where the only reason that they gave was that he was in a high narcotics area and many people are known to carry weapons. Beasley v. State, 604 So. 2d 871 (Fla. 2d DCA 1992).

(6) "During the course of an investigatory stop, the police are entitled to take such action as is reasonable under the circumstances. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992). Because Officer Young was questioning a person who may have recently committed a murder, he was justified in being concerned, and his actions were reasonable. He was entitled to make a search for weapons...." When he did the pat down he felt a hard object, which he thought might be a weapon. It proved to be keys. The officers actions were reasonable and it was proper to deny a motion to suppress. Carroll v. State, 636 So. 2d 1316 (Fla. 1994).

(7) An officer stopped defendant and others in a car for speeding on the Florida Turnpike. They gave inconsistent answers concerning where they were going and coming from. That aroused the officer's suspicion. He requested a K-9 unit. During a narcotics sweep of the exterior of the car, the dog alerted. The officer patted down the defendant and others in the car for weapons and discovered drugs. The officer did this because, based on his training and experience, he had learned that when drugs are present in a vehicle, weapons are also commonly present. On appeal the court reversed the trial judge and found that this was sufficient to establish a reasonable belief that the defendant was armed. The dog's 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, the pat-down was lawful. State v. Burn, 698 So. 2d 1282, 1284 (Fla. 5th DCA 1997).

d. Information provided by an informant.   Back

(1) Even where sufficient information is provided by an unidentified informant to justify a stop the officer may not conduct a search or make an arrest. "There must be independent evidence of criminal activity apart from the otherwise verified anonymous tip to support a search of the described suspect." The fact that a suspect who was described by the informant as dealing drugs begins to flee does not provide sufficient grounds for a search of a another person. Cunningham v. State, 591 So. 2d 1058 (Fla. 2d DCA 1991).

(2) Where information provided by an anonymous tip did not indicate in anyway that the defendant, who was supposed to be involved in a drug deal, was armed and the officers observed nothing to indicate that he was armed, it was unlawful for them to pat down the defendant for a weapon. The fact that he kept reaching for his waist band while they were searching him did not change this result. Sapp v. State, 592 So. 2d 786 (Fla. 2d DCA 1992).

(3) In this case the officers had received a tip that the defendant was carrying a concealed weapon. The court found on appeal that there was reasonable suspicion. When the officers detain the defendant, they immediately searched him and found the gun. On appeal the court found that this procedure was proper. "[W]here a confirmed tip concerns an individual with a gun, the officer is faced with the choice of stopping and searching the individual, or waiting until the individual brandishes or uses the gun and the latter choice is unacceptable, thus leaving the stop and frisk as the only reasonable choice." State v. J.L., 689 So. 2d 1116 (Fla. 3d DCA 1997).

e. Specific examples.  Back

(1) Examples of conduct which constitute facts to support a reasonable suspicion that a suspect is armed include: (1) failure to cooperate; (2) furtive movements; (3) a bulge in the clothing. contra Daniels v. State, 543 So. 2d 363 (Fla. 1st DCA 1992). Richardson v. State, 599 So. 2d 703 (Fla. 1st DCA 1992).

(2) When officers had reasonable suspicion for an investigatory stop of a vehicle and then saw the occupants making suspicious movements as if to hide something and then exit the vehicle with their hands in their pockets, the officers had a right to check the suspects and the car for weapons. Hall v. State, 562 So. 2d 714 (Fla. 1st DCA 1990).

(3) It was improper for the officer to turn the defendant's pockets inside out during a frisk. Felix v. State, 566 So. 2d 342 (Fla. 2d DCA 1990).

(4) Nervous demeanor and body movements during a consensual encounter gave rise to reasonable suspicion that the defendant was armed. State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990).

(5) A loose jacket was insufficient to establish grounds for a pat-down. Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990). See also Johnson v. State, 571 So. 2d 107 (Fla. 3d DCA 1990); Strebel v. State, 573 So. 2d 176 (Fla. 2d DCA 1991).

(6) The court held that the officer had grounds to pat down the defendant for weapons based on these facts: (1) defendant was stopped for a traffic violation; (2) it was in the early morning hours; (3) the defendant exited the vehicle and began to approach the officer; (4) the defendant was wearing a long, bulky winter coat and had both hands in the large front pockets of the coat; (5) it appeared to the officer that there might be something in the pockets that could possibly threaten his safety; (6) there was no evidence contradicting the officer's statement. State v. Callaway, 582 So. 2d 745 (Fla. 2d DCA 1991).

(7) Where an officer observed a bulge in the defendant's pocket which he believed might be a weapon he had a right to do a pat-down. T.P. v. State, 585 So. 2d 1020 (Fla. 5th DCA 1991).

(8) Officers chased down a vehicle because it had an expired temporary tag. When the driver could not produce a license the officers asked the occupants to exit. The defendant was a passenger and he made "a furtive movement". An officer did a pat down and discovered a gun. The officer who did the search said it was because of the movement, but other officers said it was because the defendant fit a profile. The trial judge granted a motion to suppress. On appeal the court reversed and said that the furtive movement was sufficient for a pat down of the defendant even though some reasons given by other officers would not have warranted a pat down. State v. T.P., 588 So. 2d 286 (Fla. 3d DCA 1991).

(9) Where an officer had reasonable suspicion to believe that an object was a syringe and could be used as a weapon, she had a right to seize it and the seizure was valid even though it turned out to be a straw. State v. Hunter, 615 So. 2d 727 (Fla. 5th DCA 1993).

(10) Where the defendant was stopped by an officer for a traffic violation and the officer did not have probable cause to believe the defendant was armed, it was unlawful for the officer to force an object from the defendant's mouth based on a bare suspicion that it might be drugs even though the stop took place in a high crime area and the defendant had admitted a month before that he was in the area to buy cocaine and the officer had experience in detecting drugs. The officer indicated that the defendant had something he was holding in his mouth, but it could have been a lifesaver or a mint as well as drugs. Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991).

(11) Officers had no right to pat down the defendant where he was standing with a group in a high drug area, ran when the officers approached and removed his hand from his pocket when asked to do so by an officer. There was no bulge or other indication of a weapon. Sander v. State, 595 So. 2d 1099 (Fla. 2d DCA 1992).

(12) An officer received information that a drug transaction was taking place. At the scene he saw the defendant and others. As she started to walk away the officer instructed her to return. He took her purse and put it on the hood and heard a metal object in the purse hit the car. The officer searched the purse and found a gun. The officer said that his purpose was to identify possible co-conspirators and to recover serialized money used by undercover agents and that even if she was not involved, she might have been a witness. The court concluded that while a search for weapons might have been prudent, it was improper because the officer did not have probable cause to believe the person had a dangerous weapon or had committed a crime. Milligan v. State, 612 So. 2d 656 (Fla. 5th DCA 1993).

(13) The defendant was riding his bike with no headlight in violation of an ordinance. The officer had previously stopped many people for this infraction, but usually gave only a verbal warning. He did so in this case, but after giving the warning he asked the defendant whether he had any guns, knives, or weapons on him. This was the officer's usual procedure. The defendant responded by touching his back pocket, looking down and not at the officer, and saying "no". The defendant's body language and increased nervousness caused the officer to conclude that the defendant was lying. The officer then walked behind the defendant and noticed a bulge in his right rear pocket. It appeared to be a weapon. The officer touched the pocket and confirmed that it was a gun. The officer then arrested the defendant, searched him and discovered marijuana. The trial judge suppressed the evidence. On appeal the court reversed. The court found that this was a valid nonpretextual stop for the headlight violation. It was proper for the officer to ask about weapons out of concern for his own safety. Even if the stop were over it was still a valid action based on a citizen encounter. The defendant's actions in response to the question gave the officer a founded suspicion that the defendant was concealing a weapon. Thus, it was proper for the officer to investigate further by walking around the defendant. The bulge was in plain view. At this point the officer had probable cause to search the defendant "by feeling and searching his pocket to confirm that it was a gun." State v. Vera, 666 So. 2d 576 (Fla. 2d DCA 1996).

(14) Officers stopped a car for hit and run. They arrested the driver. They patted the passenger/defendant down because she was riding in a car with a person who was involved in a hit and run and there was a steel pipe located next to her in the vehicle. In the pat down an officer discovered a crack pipe. The trial judge denied a motion to suppress. On appeal the court reversed because the officer did not have a reasonable belief that the defendant had a weapon. There was no bulge, furtive movement, or anything else that would justify the pat down. Sutton v. State, 698 So. 2d 1321 (Fla. 2d DCA 1997).

(15) An officer made a traffic stop and had a reasonable suspicion to believe that the defendant could be armed with a dangerous weapon. Thus, a pat down was authorized. "While conducting the pat-down ..., the officer felt a small, hard object, approximately one and one-half inches in diameter in [the defendant's] left front pocket. Unable to determine whether or not the object was a weapon, he squeezed it. The officer then placed his hand inside [the defendant's] pocket and, still unable to determine the nature of the object, he removed it from [the defendant's] pocket. The object was a small compact containing cocaine." There was no evidence justifying any belief that the small container the officer felt was a weapon."The officer exceeded the scope of the patdown when he reached into [the defendant's] pocket to seize the container.... Under the facts of this case, the officer could not reasonably have believed that the object in [the defendant's] pocket was a weapon." Thus, the trial judge erred in denying a motion to suppress. Colomo v. State, 687 So. 2d 880 (Fla. 2d DCA 1997).

7. Was the extent of detention proper? State v. Pye, 551 So. 2d 1237 (Fla. 1st DCA 1989); Thompson v. State, 551 So. 2d 1248 (Fla. 1st DCA 1989); State v. Ruiz, 526 So. 2d 170 (Fla. 3d DCA 1988); Harper v. State, 532 So. 2d 1091 (Fla. 3d DCA 1988);C.H. v. State, 548 So. 2d. 895 (Fla. 3d DCA 1989); Wilson v. State, 547 So. 2d 215 (Fla. 4th DCA 1989); Ricks v. State, 549 So. 2d 789 (Fla. 5th DCA 1989). Back

a. The fact that a Terry stop is made by many officers at the same time or with guns drawn does not invalidate the detention and convert it into an arrest. State v. Barcenas, 559 So. 2d 70 (Fla 3d DCA 1989).

b. It is proper for an officer to handcuff a person when he is temporarily detained based on reasonable suspicion when circumstances reasonably justify the use of such restraint. In this case the Court held that the circumstances justified the initial handcuffing, but not the continued used of handcuffs. The facts which justified the use of handcuffs were as follows: (1) a reliable informant reasonably led officers to suspect that a crime involving the distribution of crack cocaine had occurred; (2) the suspect crime was more than a simple street purchase of drugs; (3)officers reasonably believed that the woman in the car was resupplying street vendors; (4) the defendant was driving the car; (5) the transaction happened at night in an area known for cocaine trafficking and use; (6) one of the officers testified that in cocaine cases there is regularly intense resistence often immediately on contact; (7) another officer said that she had been hurt under such circumstances. "Based on their knowledge and personal experience with this type of crime, the officers concluded there was reason to believe that the persons in the vehicle carrying the suspect might be armed or would react irrationally when confronted by the police. Police are not required to ignore their experience in determining what action is appropriate." The continued use of handcuffs was not proper because after a pat down the officers had no reason to believe that a weapon was present. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992).

c. It was proper for an officer to draw his weapon where he had reason to believe the defendant was armed and he had both hands in his pocket. State v. Louis, 571 So. 2d 1358 (Fla. 4th DCA 1990).

d. It was not unreasonable to detain the defendant for twenty-five minutes until the canine unit arrived. Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).

e. A stop for a traffic violation justifies a detention solely for the purpose of issuing the citations. Officers did not have the right to pat down and search a defendant, who was a passenger, because he kept sticking his hand in his pocket when they had no reason to believe he was armed. E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991).

f. A detention of luggage to permit a sniff test by a narcotics dog may be based on less than probable cause. "The length and nature of the detention, however, may demonstrate that a full seizure has taken place, and the action of the police in that case must be based upon probable cause." This principle was violated where: (1) officers told the defendant that he would have to leave his luggage so that a search warrant could be secured; (2) at that point officers had already decided to seize the suitcase; (3) the luggage was detained for 90 minutes before the dog arrived. The court relied on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Aderhold v. State, 593 So. 2d 1081 (Fla. 1st DCA 1992).

g. The decision in Aderhold was distinguished in another case. There the officers detained the defendant's luggage for only 30 minutes. The court indicated that this was a brief period that could be justified on less than probable cause. Powell v. State, 593 So. 2d 1110 (Fla. 1st DCA 1992).

h. Delaying issuance of a citation so that a narcotics dog unit could arrive constituted an unlawful detention of the defendant. Joseph v. State, 588 So. 2d 1014 (Fla. 2d DCA 1991).

i. Where an officer had reasonable suspicion for an investigatory stop the fact that he drew his gun and told the suspect to lie on the ground did not turn the stop into an arrest. Since the officer had reasonable suspicion to believe that the defendant had committed a first degree murder his action was reasonable. Carroll v. State, 636 So. 2d 1316 (Fla. 1994).

j. "Although we do not condone the use of drawn weapons or handcuffs in every Terry stop, such actions are lawful where officers believe that their use is 'reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to flee.'" Here such police conduct was proper because the officers had a well-founded suspicion to believe that the defendant was in possession of enough drugs to constitute trafficking. Echeverria v. State, 668 So. 2d 1103 (Fla. 4th DCA 1996).