Harvey v. State

502 So. 2d 1305, 12 Fla. L. Weekly 598

• Court: District Court of Appeal of Florida
• Decided: February 23, 1987
• Docket: BK-315
• Status: Published

Opinion

502 So.2d 1305 (1987)

Kenneth James HARVEY, Appellant,
v.
STATE of Florida, Appellee.

No. BK-315.

District Court of Appeal of Florida, First District.

February 23, 1987.

Michael E. Allen, Public Defender, and Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before us on appeal from a judgment and sentence entered upon a plea of nolo contendere to trafficking in cocaine, possession of more than 20 grams of marijuana, and carrying a concealed firearm. The plea was entered after a motion to suppress was denied but stipulated by the parties to be dispositive of the case.

On appeal, appellant attempts to distinguish State v. Dilyerd, 467 So.2d 301 (Fla. 1985), on the ground that, in the instant case, the police officer's testimony — that he was in fear of his safety because he observed furtive movements by the passenger — was contradicted by two witnesses, appellant and his passenger. No contradictory testimony was presented in Dilyerd, and the Supreme Court held that a police officer may conduct a limited search of the passenger compartment of a car if the police officer possesses a reasonable belief based on specific and articulable facts which reasonably warrant the officer's belief that the suspect is dangerous and may gain immediate control of weapons. Id. at 305. Even though there is testimony contradicting the officer in this case, we find Dilyerd controlling on the basis that the judge, who observed the witnesses' demeanors, believed the officer, and we will not substitute our judgment for that of the trial court.

AFFIRMED.

WENTWORTH and ZEHMER, JJ., and J. LEWIS HALL, Jr., Associate Judge, concur.