Jamison v. State

455 So. 2d 1112
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 1984
Docket83-18
StatusPublished
Cited by9 cases

This text of 455 So. 2d 1112 (Jamison 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
Jamison v. State, 455 So. 2d 1112 (Fla. Ct. App. 1984).

Opinion

455 So.2d 1112 (1984)

Morgan JAMISON, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 83-18.

District Court of Appeal of Florida, Fourth District.

September 19, 1984.

*1113 Richard L. Jorandby, Public Defender, Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Jamison was charged with possession of methaqualone. He pled nolo contendere reserving the right to appeal the denial of his Motion to Suppress. He was adjudicated guilty and sentenced to three years imprisonment. He appeals. We reverse and remand.

The State accepts Jamison's version of the facts as follows:

Deputy Sheriff Gregory Younkin received a radio dispatch that a Marion Craft called in a complaint. The complaint was that a black male wearing long blue pants, no shirt, and a short afro was at the south end of Jensen Beach with a firearm. Deputy Younkin testified that he never talked to Marion Craft, and that he knew nothing about her reliability.
Deputy Younkin responded to the beach four minutes after the dispatch. He observed the appellant, a black male, inside the pavilion area. The appellant had no shirt and he was wearing long blue pants. There were a number of black males in the area. Initially, Deputy Younkin asked all the people inside the pavilion if anyone had a firearm. He then asked the appellant to lift his pants leg up. Deputy Younkin testified that if the appellant had refused to lift his pants leg up, he would have frisked him. After appellant lifted his pants leg up, Deputy Younkin noticed a bulge in appellant's left sock. He had not observed this bulge before. The appellant was asked to remove a brown paper bag which he was ordered to dump upon a table by Deputy Younkin. Deputy Younkin testified that he observed about 50 white pills.
On cross-examination, Deputy Younkin acknowledged that he did not see anything about the appellant that would lead him to believe that the appellant had a weapon prior to asking him to lift up his pants leg.

The State adds:

None of the persons at the Jensen Beach pavilion matched the description given in the dispatch except the appellant, as he was the only one wearing long trousers. Deputy Younkin testified he thought the bulge in the appellant's sock was caused by a small caliber firearm *1114 because in the past he has encountered people who have carried weapons in their socks.
Deputy Younkin directed the appellant to raise his pants leg rather than do a patdown because the presence of the other persons in the area concerned him and he wanted to keep an eye on everyone.

In our opinion Jamison was properly subjected to a stop and frisk pursuant to Section 901.151, Florida Statutes (1981). The facts were insufficient to constitute probable cause for an arrest at the time he was stopped.

However, we are concerned with the provisions of Section 901.151(5) (1981) as applied to this case. It provides:

(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) of this section has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

Here the officer took these particular actions which constituted an illegal search: (1) He directed Jamison to lift up his pants leg; (2) He directed Jamison to take out what was in his sock when he observed a bulge in the sock; and (3) He directed Jamison to dump the contents of the brown paper bag that Jamison had removed from his sock. We hold that these actions exceeded the limitations found in Section 901.151, Florida Statutes (1981). It was not necessary for the officer to go to the extent he did in order to determine if Jamison had a weapon.

The law is clear that a protective frisk or "pat-down" must be limited to that which is necessary for the discovery of weapons. It may not extend beyond a pat-down of the suspect's outer clothing unless the pat-down or other circumstances lead the officer to believe that the suspect has a weapon. Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978). See also Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982); Fraley v. State, 374 So.2d 1122 (Fla. 4th DCA 1979).

Here the officer did not pat-down Jamison. He testified that he did not conduct a pat-down because he was concerned for his safety and wanted to keep an eye on others in the area. Accepting this excuse in toto for his failure to pat-down Jamison's outer clothing, we still feel that the officer could have satisfactorily protected his safety and still honored the defendant's rights by simply having Jamison hand the paper bag to the officer or place it on the ground and walk a distance away, whereupon the officer could have patted-down or felt the bag without opening it. Had he done so he would have felt pellets or pills and no weapon. Thus, there would have been absolutely no justification for proceeding or searching further into the contents of the bag.

We primarily base our reversal upon J.R.H. v. State, 428 So.2d 786 (Fla. 2d DCA 1983) which involved the search of a satchel under circumstances similar to those at hand. There, the Court held:

At most, Truesdale could have asked appellant if the bag contained a dangerous weapon or could have conducted a pat-down search of the bag. He was not entitled to inquire further than that into the nature of its contents or to conduct a full-scale search of the bag.

428 So.2d at 787-788.

Reversed and Remanded.

HERSEY and GLICKSTEIN, JJ., concur specially with opinions.

HERSEY, Judge, concurring specially.

In J.R.H. v. State, 428 So.2d 786 (Fla. 2d DCA 1983) relied upon by the majority, (1) the search resulted from an officer's recollection that there had been recent burglaries *1115 in the area and (2) the search was carried out in the presence of only two juveniles. There was no hint of a weapon and no other obvious threat to the officer's safety. In our case the search was occasioned by an individual's description of appellant which included the fact that he had a gun. This was neither an anonymous tip nor one from a confidential informant. It was a complaint by a citizen who gave her name and who supplied details of a crime in progress. Thus the officer, upon recognizing appellant from the description, had every reason to be apprehensive about the presence of a firearm. In addition, several individuals were standing around during the interrogation and the officer, again being concerned for his safety (not being certain who might have the weapon) wanted to keep an eye on everyone. Assuredly he could have "frisked" the brown paper bag. The question is: was he constitutionally mandated only to feel the bag rather than to request that appellant dump out the contents. In my view, a rule that requires the making of such fine distinctions in the presence of possible imminent peril asks too much of law enforcement personnel. Nonetheless, such cases as Robbins v. California,

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