Sometimes officers stop people walking down a sidewalk and ask them questions, ask them for identification, and "stop and frisk" them for dangerous weapons. In the vast majority of these cases, the officer finds nothing. Many criticize the technique because innocent citizens are detained. The procedure rewards officers for engaging in illegal detentions and using racial profiling in the hopes of eventually catching someone for something.
The only way to stop this abusive procedure is for the court to suppress the evidence seized under the exclusionary rule. In many drug and weapon cases involving a "stop and frisk," the criminal defense attorney will file a “motion to suppress” the contraband seized by law enforcement during an unlawful search.
When the criminal defense attorney filed the proper motions, the court must determine whether a search and seizure without a warrant is unconstitutional under Florida's statutory provisions or the Fourth Amendment of the United States Consitution.
It is important to understand when searches are legal or illegal under Florida’s stop and frisk law. Florida’s stop and frisk law can be found at Florida Statute Section 901.151(5). If your case involves a search of your person and the discovery of evidence that the prosecution is using against you, then contact an experienced criminal defense attorney in Fort Lauderdale at Meltzer & Bell, P.A..
Call us to find out more about how a "motion to suppress" this evidence can be filed and litigated in your case. Our attorneys represent clients throughout Broward County, FL, in both felony and misdemeanor cases. Call (954) 716-8538 today.
Section 901.151(5), Florida Statutes (entitled “Stop and Frisk Law”), provides:
Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer 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, the officer 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.
Florida's stop and frisk law requires “not probable cause but rather a reasonable belief on the part of the officer that a person temporarily detained is armed with a dangerous weapon.” State v. Webb, 398 So.2d 820, 824 (Fla.1981).
The use of the term “probable cause” in the context of a stop and frisk, has been construed to mean “articulable suspicion,” “reasonable belief,” or “founded suspicion.” Smith v. State, 719 So.2d 1018, 1022 n. 1 (Fla. 3d DCA 1998).
And as the Florida Supreme Court has held, “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer's knowledge.” Hunter v. State, 660 So.2d 244, 249 (Fla.1995).
In State v. Cruse, 121 So.3d 91 (Fla. 3d DCA 2013), this court set forth the factors that may be considered by officers to arrive at a reasonable suspicion that a crime is being or is about to be committed and to support the investigatory stop or detention of a suspect:
The courts consider nervous and evasive behavior as another relevant factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In some limited circumstances, “[r]easonable suspicion can exist even though the suspicious activity is consistent with innocent activity.” Hernandez, 784 So.2d at 1126.
The court will then consider the totality of circumstances when deciding whether there is a reasonable suspicion to justify a patdown search. In State v. Herron, 68 So.3d 330 (Fla. 3d DCA 2011) the State argued:
...the pat-down was lawful because Herron appeared “excruciating[ly] nervous, fidgety,” could not produce a driver's license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further point[ed] out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot system identification of the defendant under the circumstances. This court determined in Herron that this series of events was “insufficient to justify a pat-down when there is no additional articulable suspicion the person is armed with a dangerous weapon.”
Id. at 331.
In Davis v. State, 67 So.3d 1125 (Fla. 5th DCA 2011), the officer initiated a consensual encounter with the defendant, who was standing in a “high-crime” area with several other individuals. The officer observed that the defendant had a pocketknife clipped into one of his pants pockets. The officer proceeded to secure the pocketknife and “considered it necessary to patdown for weapons just ... for [his] own safety ...” Id. at 1126. There were no other reasons articulated for the patdown, and simply having a pocket knife clipped to one's pocket does not, without more, provide reasonable suspicion to justify a patdown search.
As a general rule, evidence from an unreasonable search or seizure is inadmissible. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
The purpose of the “exclusionary rule” is to deter deliberate, reckless, or grossly negligent police misconduct. Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).
As the United States Supreme Court held in Herring: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id.
Inevitable discovery is a recognized exception to the exclusionary rule and requires the prosecutor for the State of Florida to establish that “the evidence would have inevitably been discovered in the course of a legitimate investigation.” Moody v. State, 842 So.2d 754, 759 (Fla.2003).
In Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the court recognized and adopted the inevitable discovery exception to the exclusionary rule, and holding that the exclusionary rule should not apply if “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.”
Explained another way, depending on the case presented “the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct.” Moody, 842 So.2d at 759.
A patdown search is conducted for the purpose of discovering “a dangerous weapon.” § 901.151(5), Fla. Stat. See also Harford v. State, 816 So.2d 789 (Fla. 1st DCA 2002).
The prosecutor will often argue that the search was legal based on the "plain feel" doctrine.
If during a proper patdown search, the officer feels an object whose incriminating nature is immediately apparent, that too may be lawfully seized. For instance, in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the court adopted the “plain feel” doctrine to permit seizure of such items during an otherwise lawful patdown search. Griffin v. State, 150 So.3d 288 (Fla. 1st DCA 2014).
Florida's Stop and Fisk Law under F.S. 901.151 - Visit the website of the Florida Senate to learn more about criminal procedures listed in Chapter 901 for a legal arrest and Section 151 related to stopping and frisking a person or items in their possession such as a purse, bookbag, or backpack.
Statistics and Stories of Stop and Frisk in Florida - Between 2008 and 2013, police officers in Miami Gardens, Florida, performed 99,980 "field contact" reports. The field reports resulted in innocent people being stopped, written up and often identified as "suspicious" without being arrested or held. Almost 57,000 of those field contact reports showed that the officer conducted body searches. But two Miami Gardens police officers explained a quota system. "The target to stop in Miami Gardens: he wants all black males stopped between the ages of 15 and 30 years old..."
This article was last updated on Thursday, October 27, 2016.
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