Davis v. State

615 So. 2d 852, 1993 Fla. App. LEXIS 3008, 1993 WL 75793

Opinion

PER CURIAM.

Appellant challenges his convictions and sentences for possession of cocaine and possession of drug paraphernalia. Appellant pled no contest to the charges, reserving the right to appeal the court’s denial of his motion to suppress the evidence.

Appellant was walking along a street when a police officer motioned to him to go over to the officer. As appellant approached, the officer told him to take his hands out of his waistband. Appellant made a motion and stated, “Now find the rock, sucker.” The officer then patted appellant down for a weapon. The officer found a rock pipe and arrested appellant.

The trial court denied appellant’s motion to suppress finding the search was a proper search incident to a lawful arrest. We disagree. We find the pat-down was not a proper search for weapons but was instead an improper search for drugs. The officer had no reason to believe appellant was armed and dangerous. The officer was never in fear that appellant had a weapon. When the officer called appellant over to talk with him, he was not in fear. Appellant’s statement concerning the rock did not suggest to the officer that appellant had a weapon. The officer had no factual basis to support a weapon pat-down nor did he have probable cause to arrest appellant simply because of his statement and motion.

We reverse the denial of the motion to suppress.

CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur.