Opinion
No. 91-2445.
March 30, 1993. Rehearing Denied May 4, 1993.
Appeal from the Circuit Court for Duval County, David Wiggins, J.
Nancy A. Daniels, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
Renaldo Alexander appeals his conviction for possession of cocaine, arguing that the trial court should have granted his pretrial motion to suppress the crack cocaine seized from his person on the ground that there was insufficient basis to stop and frisk him. We reverse.
At the hearing on the motion, Officer Johnson testified that while on routine patrol, he stopped to talk to a confidential informant with whom he had worked eight to ten times and from whom he usually received reliable information. The informant pointed towards a car in front of Johnson and told him that he had seen a large amount of cocaine in it. Johnson was asked if the informant told him when he had seen the cocaine, to which he replied: "I guess within the last hour or a few minutes to me arriving in that area. I didn't go into any long questions because I didn't want to lose the vehicle." Johnson was satisfied the informant knew and could identify cocaine.
There were no other cars in sight at the time.
Based solely on the informant's tip, Johnson stopped the car. When other officers arrived, he conducted a pat-down search of Alexander, the driver. He explained at the hearing that he intended to detain the driver and passenger in his patrol car while he searched the vehicle, and that he performed the weapons search for his own safety as standard procedure. When asked about the procedure to determine whether to search the vehicle, Johnson stated:
Well, I could have looked for probable cause on the outside of the vehicle, I could have called the canine unit, and have the canine unit come around, which I eventually did.
In the area of Alexander's crotch, Johnson felt a hard cylindrical object, two to three inches long and one half to an inch in diameter. He testified that he had seen other people bearing knives and razor blades in their crotches. Alexander did not respond when Johnson asked him what the object was, whereupon Johnson told him, "You can either take it out or I will take it out." Alexander undid the side of his shorts, Johnson shook him, and a plastic bag containing ninety pieces of crack cocaine fell out of his pants leg.
On cross-examination, Johnson testified that the informant did not give him a description of the occupants, but merely pointed to the car, and that he did not wait to get details of where the cocaine was in the car, or when the informant had seen the cocaine. He testified that he assumed the informant had just seen the cocaine. He admitted that he had no other information except the informant's tip, that he did not see any contraband or weapons in plain view when he stopped the car, and that he knew the object in Alexander's crotch was not a gun or razor blade, but he was not sure if it was a knife.
The judge found that the informant was credible and his information reliable, so that the tip provided reasonable suspicion to justify a stop of the vehicle, and that the officer had "probable cause to believe that defendant may have been armed and dangerous" because he was engaged in a drug transaction involving a large quantity of narcotics and a large sum of money, justifying the pat-down search.
Appellant contends that the informant's tip was insufficient to establish reasonable suspicion to stop his vehicle, because it was insufficiently detailed and was not corroborated. He argues that even if the stop was valid, the evidence failed to establish probable cause to believe that he was armed with a dangerous weapon, and that the seizure of the cocaine exceeded the permissible scope of a pat-down search.
The state argues that the stop was justified by a reasonable suspicion to believe Alexander was committing a felony based on the informant's tip, citing State v. Cook, 475 So.2d 285 (Fla. 5th DCA 1985), in which an officer was flagged down by bar employees known to the officer to be reliable, who pointed to a departing vehicle and yelled at the officer to stop the driver because he had a gun. It contends that the cocaine was discovered pursuant to a valid frisk for weapons, and that it was reasonable to conduct a frisk under the circumstances. It asserts that the cocaine would have been discovered even without the pat-down search, since Johnson testified that the drug-sniffing dog was eventually brought to the scene.
Alexander replies that it is unclear from the testimony when the informant saw the cocaine, how he knew there was cocaine in the vehicle, and whether the cocaine was still in the car. He argues that following standard procedures is not sufficient to justify a pat-down search, citing Harris v. State, 574 So.2d 243 (Fla. 1st DCA 1991), and L.D.P. v. State, 551 So.2d 1257 (Fla. 1st DCA 1989).
Assuming that the informant's tip, that he had seen a large amount of cocaine in the car driven by Alexander, provided reasonable suspicion that a crime was being committed, thereby justifying a stop of the vehicle, neither the facts nor the law supports the remainder of the trial court's finding, that the pat-down search was justified because the informant's tip gave the officer "probable cause to believe that defendant may have been armed and dangerous" because he was engaged in a drug transaction involving a large quantity of narcotics and a large sum of money.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court stated that the Fourth Amendment test for the "reasonableness" of police actions requires a balancing of the need to search or seize against the invasion which the search or seizure entails. To justify a particular intrusion, police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion," an objective standard. Id. at 20-21, 88 S.Ct. at 1879-80. The Court identified the government interest in "effective crime prevention and detection" justifying temporary detentions for investigatory purposes, and "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him," observing:
[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
. . . . .
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.Id. at 24-27, 88 S.Ct. at 1881-83 (cites omitted).
In Terry, the actions of the suspects were consistent with the police officer's hypothesis that they "were contemplating a daylight robbery — which, it is reasonable to assume, would be likely to involve the use of weapons — and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis." Id. at 28, 88 S.Ct. at 1883. The Court found that on the facts presented, "a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety while he was investigating his suspicious activity." Id.
While we acknowledge that there are situations in which the nature of the suspected criminal activity justifying a Terry stop may also provide a basis for a reasonable belief "that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer," we do not find that the Terry requirement of reasonableness is met by the sole fact that the person detained is suspected of dealing in a large quantity of drugs and large sums of money, notwithstanding the implications that may be read from the dicta in State v. Sayers, 459 So.2d 352 (Fla. 3d DCA 1984), rev. den., Zzie v. State, 471 So.2d 44 (Fla. 1985). But even if the standard used by the trial judge in this case were proper, there was no evidence presented that Johnson believed Alexander was armed, or that he suspected him of more than simple possession of cocaine. As noted by Alexander, we have consistently held that "standard police procedures" will not alone justify a pat-down search for weapons. Having found that the pat-down search of Alexander's person was unlawful because it was not supported by Officer Johnson's reasonable belief that Alexander was armed and presented a threat to his safety, we need not reach the question of whether the seizure of the cocaine exceeded the permissible scope of a pat-down search.
See State v. Webb, 398 So.2d 820 (Fla. 1981).
We do not find the federal cases cited in Sayers contrary to our position.
REVERSED and REMANDED with directions to discharge the appellant.
ZEHMER, J., concurs.
MINER, J., dissents, with opinion.
Without deciding, the majority "assumes" that the informant's tip herein provided reasonable suspicion that a crime was being committed so as to justify stopping appellant's vehicle. Despite this "assumption", however, the majority finds that "neither the facts nor the law" supports the trial court's finding that the subsequent pat-down search of appellant was justified because the informant's tip gave the arresting officers probable cause to believe that the defendant may have been armed and dangerous because he was engaged in a drug transaction involving a large quantity of narcotics and a large sum of money. Because I believe that the stop of appellant's vehicle and the subsequent pat-down search of appellant were reasonable under the circumstances and in accord with applicable case law, I would affirm his conviction.
First, I would hold that the tip provided by the confidential informant was sufficient to justify the initial stop of appellant's vehicle. We are not dealing here with an anonymous tip. The officer was hailed over to the curb by the tipster whom he recognized as an informant and knew from past experience to be reliable. The informant pointed out a specific vehicle departing the scene in which he or she had seen a "large amount" of cocaine (quoting the officer's testimony). There is no doubt that the officer was able to identify the vehicle to which the informant referred and which appellant was driving seconds after the officer received the tip because appellant's was the only vehicle in the area. Clearly, then, the initial stop of appellant's vehicle was lawful. Cf. State v. Cook, 475 So.2d 285 (Fla. 5th DCA 1985) (finding initial stop of vehicle justified where employees of liquor lounge pointed to vehicle and yelled at officer to inform him that driver had a gun).
With respect to what transpired after the initial stop of appellant's vehicle, it seems to me equally clear that the frisk of which he complains was eminently reasonable under the test articulated in Terry. Indeed, the only case to which the majority refers on this point, State v. Sayers, 459 So.2d 352 (Fla. 3rd DCA 1984), rev. den., Zzie v. State, 471 So.2d 44 (Fla. 1985), supports this conclusion.
The majority finds that if the sole basis for frisking a detained person is the suspicion that such person is dealing in a large quantity of illicit drugs and large sums of money, then the Terry reasonableness test is not met notwithstanding the implications in what it characterizes as "dicta" in State v. Sayers. "Dicta" though it may be, it nonetheless states a well recognized rule of law which the Sayers court found necessary to articulate in order to explain why such rule did not operate, on the particular facts there at hand, to justify a protective frisk of the suspect.
State v. Sayers affirmed the trial court's order finding the initial stop of the defendant lawful but suppressing the evidence seized on the ground that the subsequent pat-down search was unlawful.
The trial court correctly acknowledged that it is not necessary that the agents have direct information that the person to be frisked is armed and that a law enforcement agent may reasonably believe that a person engaged in a transaction prospectively involving a large quantity of narcotics and large sums of money is likely to be armed to protect the drugs, the money, or himself. See United States v. Vasquez, 634 F.2d 41 (2d Cir. 1980); United States v. Post, 607 F.2d 847 (9th Cir. 1979); United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) (firearms are as much "tools of the trade" to "substantial dealers in narcotics" as other articles of narcotics paraphernalia); United States v. Wiener, 534 F.2d 15 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) (same); United States v. Santana, 485 F.2d 365 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974). Ordinarily, then, the fact that the agents had reliable information that Sayers was flying to Miami to purchase $50,000 worth of cocaine from the co-defendant, Zzie, and that, immediately before the frisk, they had observed Sayers meet briefly with Zzie, would give rise to a reasonable belief that Sayers was armed. But the trial court was free to find, as it did, that where, as here, the agents knew that Sayers had "just stepped off a commercial airline flight in which they have radar detectors and metal detectors and . . . had walked through them," that the agents' belief that Sayers was armed was not reasonable under these circumstances.State v. Sayers, 459 So.2d at 353-354 (footnote omitted).
Thus, the Sayers court correctly recognized that it is generally not unreasonable to believe that one suspected of trafficking in large amounts of narcotics may be armed. Even so, the district court properly declined to disturb the trial court's finding that it was unreasonable to believe that Sayers was armed because he had just walked through a metal detector.
Of the cases cited in Sayers, the one which it seems to me most clearly articulates the applicable legal standard is United States v. Post, 607 F.2d 847 (9th Cir. 1979):
It is clear that an officer who has the right to stop a person does not necessarily have a concomitant right to search that person. Only when an officer justifiably believes that "the individual whose suspicious behavior he is investigating at a close range is armed" may he conduct a limited search for concealed weapons.
In Terry, the Court closely scrutinized Officer McFadden's conduct and concluded that, despite the fact that he had not observed a weapon or any physical indication of a weapon, it was reasonable to assume, from the nature of the offense contemplated, that Terry was armed and dangerous. It is not unreasonable to suspect that a dealer in narcotics might be armed.Id. at 851, (citations omitted) (emphasis added).
In the case at hand, in light of the fact that the officer had a reasonable belief that appellant was in possession of a "large amount" of cocaine, an amount from which the officer may reasonably have inferred that appellant was trafficking in large quantities of cocaine, it was not unreasonable for the officer to also believe that appellant was armed, thereby justifying the investigatory frisk. Terry.
Although the officer testified that the frisk he performed was part of "standard police procedure," the lawfulness of the frisk may be and in my view is sustained on the basis of the underlying facts leading to the frisk. In addition, the case at bar is distinguishable from Harris, supra, and L.D.P., supra, where such "standard" procedures were held unlawful either because the officer conceded that he had no fear that the suspects may have been armed ( Harris), or because the facts failed to support a reasonable belief that the suspects were armed ( L.D.P.) (dicta).
Finally, although the officer testified that he did not believe that the hard cylindrical object detected in appellant's clothing was a gun or a razor blade, he testified that he was unsure whether that object was a knife. Thus, the instant search was justified.