Ellis Rexwood Curry 3004 River Grove Dr Tampa FL 33610 phone 813 238-5371
Defense Attorney in appellate case 2nd DCA District Court of Appeal Hillsborough Florida.
Victory in 4th Amendment court opinion in Search & Seizure Case
Office of the Attorney General
AG number: 6009 Style: White vs. State
Jurisdiction: 2nd DCA
AG HEADNOTE
Search and seizure - founded suspicion
Narcotics found during a search must be suppressed because an officer lacked
founded suspicion to stop a vehicle, the 2nd DCA held.
Private security officers contacted police when they were suspicious of a
vehicle driving back and forth in front of a closed marina around 3:30
a.m. As the investigating officer spoke with the guards, she saw the vehicle
drive by. The officer later stopped the vehicle, and a search
revealed marijuana and a firearm. A trial court refused to suppress the
evidence but the DCA reversed, concluding that the totality of the
circumstances did not give rise to a reasonable suspicion that a crime was
about to occur.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
KELVIN D. WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_________________________________ )
Appeal from the Circuit Court for Pinellas County; Philip J. Federico,
Judge.
Ellis Rexwood Curry, IV, Tampa, for Appellant.
NORTHCUTT, Acting Chief Judge.
The State charged Kelvin White with possession of a firearm and possession
of marijuana. White moved to suppress the gun and the drugs,
which were discovered when law enforcement officers stopped his car. The
circuit court denied his motion, and he pleaded no contest to the
charges, reserving the right to appeal his dispositive motion to suppress.
We reverse.
At the hearing on White's motion to suppress, two private security officers
testified that they were working in the area surrounding Maximo
Marina in St. Petersburg on the night White was arrested. At about 3:30
a.m., they noticed a car driving back and forth in front of the marina,
which was closed at the time. The car then turned into the parking lot of an
adjacent motel, which was open for business. At a second hearing on
the motion, the motel's security guard testified that he also observed the
car, which was moving, but had its lights turned off. The car pulled into a
parking space. When this security guard approached the car, one of the
occupants shouted profanities at him. While the occupant's remarks
were not threatening, the security guard felt "a little bit" threatened. The
car then drove away.
The motel's security guard contacted the St. Petersburg police department,
and Officer Marian Schmidt arrived to investigate. She was
speaking with the security guards when the suspicious car drove by on a
public street next to the motel and marina property. Officer Schmidt
pursued the car and stopped it. She smelled marijuana, placed White and his
passenger in her patrol car, and discovered marijuana cigarettes
in the car's ashtray and a gun on the passenger-side front floorboard. White
was arrested and charged with the previously-mentioned crimes.
Officer Schmidt did not have the requisite "well-founded, articulable
suspicion of criminal activity" necessary to support a traffic stop. See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). To justify an
investigatory stop, law enforcement must have a reasonable suspicion that
the
person has committed, is committing or is about to commit a crime. See id.;
see also ' 901.151(2), Fla. Stat. (1995). The testimony at the
suppression hearing showed that businesses in the area had been robbed at
some indeterminate time in the past. But no recent crime had
occurred, so the stop could not be justified by a suspicion that White or
his passenger were the perpetrators. Cf. Grant v. State, 718 So. 2d 238
(Fla. 2d DCA 1998) (upholding a stop where a car was driving without its
headlights, up and down a small street where a burglary had occurred
mere hours earlier). None of White's activities described at the hearing
could give rise to a belief that he was actually committing a crime. Any
suspicion that he was about to commit one was dissipated when he drove away
from the businesses, and no evidence showed that White's car
was returning to the business area when the guards spotted it driving down a
public street.
The totality of the circumstances in this case did not give rise to a
reasonable suspicion that criminal activity was afoot. The officer's stop of
White's car was improper, and all evidence seized as a result of the stop
should have been suppressed. We reverse White's convictions, and
we remand with directions to discharge him.
Reversed and remanded.
GREEN and SALCINES, JJ., Concur.
