Brown v. State

358 So. 2d 596
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 1978
Docket77-95
StatusPublished
Cited by25 cases

This text of 358 So. 2d 596 (Brown v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 358 So. 2d 596 (Fla. Ct. App. 1978).

Opinion

358 So.2d 596 (1978)

Peter Horace BROWN, Appellant,
v.
STATE of Florida, Appellee.

No. 77-95.

District Court of Appeal of Florida, Second District.

May 12, 1978.

*597 Jack O. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee and William I. Munsey, Jr. and Mary Jo Gallay, Asst. Attys. Gen., Tampa, for appellee.

HOBSON, Acting Chief Judge.

In this appeal we are presented with the issue of whether the legal removal of suspects from an automobile renders illegal a protective search which would have been proper had the suspects remained in the vehicle. Under the circumstances and reasoning enunciated below we hold this to be a valid protective search.

Based upon the testimony elicited at the hearing on the motion to suppress, the trial court was entitled to find the following facts:

Appellant and a man named Thomas drove their borrowed Cadillac automobile into the parking lot of a convenience store at 8:00 at night. They sat in the car for approximately one hour. Thomas entered the store, made a small purchase, and returned to the vehicle. The men continued to sit in the car. Fearing that a robbery may occur, the cashier in the store had the sheriff's department notified. Deputies Harrison and Smith, and Police Chief Miller responded to the call.

When Chief Miller's marked cruiser entered the parking lot, appellant quickly exited his vehicle and nervously ran to the cruiser. He informed Chief Miller that the *598 Cadillac would not start. Appellant returned to the Cadillac with Chief Miller to attempt to start the vehicle. Meanwhile, Deputy Harrison interviewed the cashier. The Cadillac started, but stalled when appellant removed his foot from the accelerator. Harrison joined Chief Miller at the driver's door of the Cadillac. Thomas appeared to be extremely nervous. As appellant again exited the Cadillac, the officers noticed a pronounced bulge in the waistline of Thomas' jacket. Fearing that the bulge may have been caused by a pistol, the officers commanded Thomas to remain still. As Harrison approached the passenger side of the vehicle in which Thomas was sitting, Thomas quickly shoved his hand under the armrest which divided the front seats. Harrison had Thomas step out of the automobile. Harrison patted down the outside of Thomas' clothing and discovered that the bulge was not caused by a weapon. Harrison reached under the armrest and retrieved a plastic bag containing tinfoil packets of heroin. The two men were placed under arrest and the operator of the Cadillac, appellant, consented to a full search of the vehicle. Appellant instructed the officers in opening the broken trunk latch. This search of the car's trunk produced a large amount of heroin and other incriminating evidence.

The state does not contend that, at the time of the search under the armrest, the officers had probable cause to arrest the suspects. Hence, this search cannot be justified as a search incident to an arrest. The state does not contend that, at the time of this search, the officers had probable cause to believe that contraband or seizable evidence was in the vehicle. Hence, this search cannot be justified as a probable cause search. The state does not contend that, at the time of the search under the armrest, the officers had consent to search. Hence, this search cannot be justified as a consent search. The state does contend that the search was justified as a reasonable protective search. In ruling on the merits of this contention, we must determine 1) whether a protective search was warranted under the circumstances; and 2) whether the search exceeded the permissible scope of a protective search.

We first consider whether a protective search was warranted. Searches for weapons which may be used to assault an investigating police officer or other persons came under the careful scrutiny of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There the Court recognized that, consistent with Fourth Amendment principles, "a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, 907. Since a "policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect," id., the police officer may conduct a limited protective search for concealed weapons when "an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

The Court described the appropriate circumstances warranting an investigative stop and protective search as "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety." Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. The police officer's conclusions must be based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably indicate that *599 criminal activity is afoot and that the suspect(s) are armed and dangerous. Terry v. Ohio, supra.

In the case at bar, we find that the investigation and a protective search were warranted by the circumstances. Armed robberies at night of convenience stores have become quite common occurrences. The officers were summoned at night to investigate a potential robbery of a convenience store. At the scene, the officers were informed that the two suspects had been sitting in the car for a considerable length of time, and for no apparent reason. When appellant saw the police cruiser arrive, he hastened to the cruiser and attempted to explain the suspects' activity. This explanation came under suspicion when their car started. Both suspects, especially Thomas, seemed extremely nervous. Both police officers noted a pronounced bulge about the waistline of the jacket worn by Thomas. The officers feared that the bulge was caused by a weapon. When the police officers commanded Thomas to remain still, Thomas shoved his hand under the armrest as if to conceal or retrieve something.

These observations led the police officers to reasonably conclude, in light of their experience, that criminal activity was afoot and that the suspects with whom the officers were dealing may have been armed and dangerous. Throughout the course of the investigation, the officers were known to the suspects to be policemen. The officers' reasonable inquiries, and the initial stages of the encounter, did nothing to dispel the officers' reasonable fear for their own safety and the safety of others.

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358 So. 2d 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-fladistctapp-1978.