State v. Burns

698 So. 2d 1282, 1997 WL 464376
CourtDistrict Court of Appeal of Florida
DecidedAugust 15, 1997
Docket96-2645
StatusPublished
Cited by16 cases

This text of 698 So. 2d 1282 (State v. Burns) 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
State v. Burns, 698 So. 2d 1282, 1997 WL 464376 (Fla. Ct. App. 1997).

Opinion

698 So.2d 1282 (1997)

STATE of Florida, Appellant,
v.
Phillip Dewayne BURNS, Appellee.

No. 96-2645.

District Court of Appeal of Florida, Fifth District.

August 15, 1997.
Rehearing Denied September 17, 1997.

*1283 Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.

J. Edwin Mills, Orlando, for Appellee.

ANTOON, Judge.

The state appeals the trial court's order suppressing cocaine seized from the defendant, Phillip Dewayne Burns. We reverse.

The defendant and a passenger were driving north on the Florida Turnpike when their car was stopped for speeding by an Orange County deputy sheriff. The deputy instructed the defendant to exit the vehicle with his driver's license; the defendant complied. However, as he exited the vehicle, the defendant informed the deputy that his driver's license was suspended. Upon inquiry by the deputy, the defendant stated that he and his passenger were traveling to Georgia. Meanwhile, the passenger upon similar inquiry from the deputy stated that they were returning from Georgia. The deputy questioned the passenger how that was possible when the vehicle was traveling north, and the passenger responded that he was coming from Florida. The deputy advised the passenger that they were in Florida, at which point the passenger stated that he did not know where they were coming from. These inconsistent stories caused the deputy to suspect that "there was potential criminal activity taking place." As a result, he requested the assistance of a K-9 unit. The K-9 unit arrived while the deputy was completing the defendant's citation for driving with a suspended license.

During a narcotics sweep of the exterior of the car, the dog alerted to the scent of narcotics. Following the alert, the deputy advised the defendant and his passenger that the dog had alerted and that, as a result, he would first pat them down for weapons and then search the vehicle. At the suppression hearing, the deputy explained that the pat-down was for officer safety:

I was thinking that the defendant possibly had a weapon on him and that if I didn't retrieve it or locate it before I put him in the back of my car, myself or other deputies who are assisting me on the scene could have possibly been injured or killed by a weapon.

He further testified that he had conducted the pat-down because, based on his training and experience, he had learned that when *1284 drugs are found in automobiles it is common practice that weapons are also present.

The pat-down of the defendant revealed a hard, solid substance in the seat of the defendant's pants. The deputy, who had been trained in the identification of narcotics, believed the substance to be packaged contraband. He testified that, in a majority of his drug-trafficking cases on the turnpike, drugs have been found on the suspect's body, particularly in the groin area. Once the deputy suspected that contraband was present, he handcuffed the defendant and removed the item. Upon removal, the deputy discovered 54 grams of powdered cocaine packaged in two condoms. This cocaine was the subject of the defendant's suppression motion.

The trial court granted the defendant's motion to suppress, stating that it was reluctant to extend the holdings of Jordan v. State, 664 So.2d 272 (Fla. 5th DCA 1995), and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), in order to uphold the instant seizure. Specifically, the trial court concluded that the seizure was improper because the deputy knew that the object was not a weapon and the deputy was not in fear for his personal safety.

The state appeals this ruling, arguing that the trial court erred in granting the motion to suppress because the seizure of the cocaine was predicated upon a lawful pat-down search. We agree.

Florida's Stop and Frisk Law, section 901.151, Florida Statutes (1995), provides in pertinent part:

(5) Whenever any law enforcement officer authorized to detain temporarily any person ... 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....

In State v. Webb, 398 So.2d 820, 825 (Fla. 1981), our supreme court explained that, although the statute uses the term "probable cause," the legislature intended to adopt the federal standard for stop and frisk and not a stricter standard. Thus, under our Stop and Frisk Law, a law enforcement officer must possess only a reasonable suspicion that the suspect is armed with a dangerous weapon in order to justify a stop and frisk. Id. at 824. The United States Supreme Court noted that reasonableness "depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" Maryland v. Wilson, ___ U.S. ___, ___, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997)(quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)). While there is no bright-line rule to determine whether the scope of police conduct was reasonable, our evaluation is guided by "common sense and ordinary human experience." United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994)(quoting United States v. King, 990 F.2d 1552 (10th Cir.1993)).

Here, the deputy certainly possessed a reasonable belief that the defendant was armed and posed a danger to his safety so as to warrant a pat-down search. In this regard, the police dog alerted to the presence of narcotics during the course of a valid traffic stop. This alert, coupled with the deputy's experience regarding the association of weapons and drugs, eliminated the possibility that the deputy's "interference" was arbitrary. Thus, we agree with the trial court that this was a valid pat-down search under section 901.151 and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In so ruling we recognize that, without the benefit of a frisk, the deputy would have been in a precarious situation because he would not have known whether the defendant was armed. We agree with the opinion expressed by the second district in King v. State, 696 So.2d 860 (Fla. 2d DCA 1997), that law enforcement officers should not be required to take such risks. Clearly, under circumstances such as these, a defendant's right to personal security free from arbitrary interference is outweighed by the public's interest in officer safety.

However, we disagree with the trial court's conclusion that the seizure of the *1285 drugs from the seat of the defendant's pants was unlawful. In Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct.

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Bluebook (online)
698 So. 2d 1282, 1997 WL 464376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burns-fladistctapp-1997.