Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of
a vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search revealed marijuana
and a firearm. A trial court refused to suppress the evidence but the DCA
reversed, concluding that the totality of the circumstances did not give
rise to a reasonable suspicion that a crime was about to occur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
KELVIN D. WHITE, Appellant, v.
Case No. 98-02308 STATE OF FLORIDA, Appellee. _________________________________ )
Opinion filed May 28, 1999.
Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.
Rex Curry, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee,
and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Acting Chief Judge.
The State charged Kelvin White with possession
of a firearm and possession of marijuana. White moved to suppress the gun
and the drugs, which were discovered when law enforcement officers stopped
his car. The circuit court denied his motion, and he pleaded no contest
to the charges, reserving the right to appeal his dispositive motion to suppress.
We reverse. At the hearing on White's motion to suppress,
two private security officers testified that they were working in the area
surrounding Maximo Marina in St. Petersburg on the night White was arrested.
At about 3:30 a.m., they noticed a car driving back and forth in front of
the marina, which was closed at the time. The car then turned into the parking
lot of an adjacent motel, which was open for business. At a second hearing
on the motion, the motel's security guard testified that he also observed
the car, which was moving, but had its lights turned off. The car pulled
into a parking space. When this security guard approached the car, one of
the occupants shouted profanities at him. While the occupant's remarks were
not threatening, the security guard felt "a little bit" threatened. The
car then drove away. The motel's security guard contacted the St.
Petersburg police department, and Officer Marian Schmidt arrived to investigate.
She was speaking with the security guards when the suspicious car drove
by on a public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and
his passenger in her patrol car, and discovered marijuana cigarettes in the
car's ashtray and a gun on the passenger-side front floorboard. White was
arrested and charged with the previously-mentioned crimes. Officer Schmidt did not have the requisite "well-founded,
articulable suspicion of criminal activity" necessary to support a traffic
stop. SeePopple v. State,
626 So. 2d 185, 186 (Fla. 1993). To justify an investigatory stop, law enforcement
must have a reasonable suspicion that the person has committed, is committing
or is about to commit a crime. Seeid.; see also
§ 901.151(2), Fla. Stat. (1995). The testimony at the suppression hearing
showed that businesses in the area had been robbed at some indeterminate
time in the past. But no recent crime had occurred, so the stop could not
be justified by a suspicion that White or his passenger were the perpetrators.
Cf.Grant v. State,
718 So. 2d 238 (Fla. 2d DCA 1998) (upholding a stop where a car was driving
without its headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car was returning
to the business area when the guards spotted it driving down a public street.
The totality of the circumstances in this case
did not give rise to a reasonable suspicion that criminal activity was afoot.
The officer's stop of White's car was improper, and all evidence seized
as a result of the stop should have been suppressed. We reverse White's
convictions, and we remand with directions to discharge him. Reversed and remanded. GREEN and SALCINES, JJ., Concur.