Walker v. State, 514 So. 2d 1149 (Fla. 2d DCA 1987). · Go Syfert
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Walker v. State, 514 So. 2d 1149 (Fla. 2d DCA 1987). Cases Citing This Book View Copy Cite
44 citation events (5 in the last 25 years) across 2 distinct courts.
Strongest positive: Conyers v. State (fladistctapp, 2015-05-06)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Conyers v. State
Fla. Dist. Ct. App. · 2015 · confidence medium
Mr. Conyers relies on Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987), in which this court held that seeing the “stem” of a pipe in plain view did not provide probable cause to arrest for possession of drug paraphernalia.
discussed Cited as authority (rule) Cobb v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
We must determine whether Officer Ellis' testimony demonstrates a "founded suspicion," based on his factual observations in light of his experience and knowledge, rather than a "mere suspicion of criminal activity." Walker v. State, 514 So.2d 1149, 1150 (Fla. 2d DCA 1987); Stanton v. State, 576 So.2d 925, 926 (Fla. 1st DCA), rev. den., 584 So.2d 999 (Fla. 1991) (police must have "founded suspicion of criminal activity" before initiating vehicular stop to investigate such activity).
discussed Cited as authority (rule) Shaw v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); Johnson v. State, 547 So.2d 699 (Fla. 1st DCA 1989) (suspect's evasive response to officer's inquiry about bulge in pocket, which resembled the shape of a wallet, did not justify officer's use of self-help by reaching into the pocket and extracting small paper sack containing cocaine); Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987).
cited Cited as authority (rule) Johnson v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Gipson, 537 So.2d at 1082 ; Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); Walker v. State, 514 So.2d 1149, 1150 (Fla. 2d DCA 1987).
discussed Cited as authority (rule) Dees v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
See, e.g., Baggett v. State, 531 So.2d 1028, 1030 (Fla. 1st DCA 1988) ("the fact that appellant placed his hand in his jacket after seeing Officer Nye did not give rise to a founded suspicion"); Ruddack v. State, 537 So.2d 701, 701 (Fla. 4th DCA 1989) (that appellant moved his hand behind his back did not reasonably raise suspicion of criminal activity or pose threat to officer's safety); Jenkins v. State, 524 So.2d 1108, 1109 (Fla. 3d DCA 1988) (that appellant put his hand behind back when officers were checking the area was not enough to justify stop and pat-down); Walker v. State, 514 So.2d…
discussed Cited as authority (rule) Hill v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
See also Martin v. State, 521 So.2d 260, 261 (Fla. 2d DCA 1988) (no founded suspicion where appellant was in drug area, sitting on a porch with two known drug dealers, then walked toward a vehicle, back to the porch, then back to the vehicle and got into the back seat and the vehicle started to leave when the officer approached); Walker v. State, 514 So.2d 1149, 1150 (Fla. 2d DCA 1987) (no founded suspicion to justify temporary detention where appellant was on the front porch of a residence in a high crime area and the police saw him make a quick movement as if trying to conceal something behi…
discussed Cited "see" ML v. State
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987) (recognizing that even though "... the stem of the pipe was in plain view, we do not find that the pipe alone could constitute probable cause to arrest for possession of paraphernalia.
discussed Cited "see" M.L. v. State
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987) (recognizing that even though “... the stem of the pipe was in plain view, we do not find that the pipe alone could constitute probable cause to arrest for possession of paraphernalia.
cited Cited "see" Felix v. State
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987).
cited Cited "see" Warren v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Walker v. State, 514 So.2d 1149 (Fla. 2d DCA 1987); White v. State, 458 So.2d 1150 (Fla. 1st DCA 1984).
cited Cited "see" Gipson v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Walker v. State, 514 So.2d 1149 (Fla. 2d DCA 1987).
cited Cited "see, e.g." Strebel v. State
Fla. Dist. Ct. App. · 1991 · signal: see, e.g. · confidence low
See, e.g., Walker v. State, 514 So.2d 1149 (Fla. 2d DCA 1987).
cited Cited "see, e.g." Bastien v. State
Fla. Dist. Ct. App. · 1988 · signal: see also · confidence low
See also Walker v. State, 514 So.2d 1149 (Fla. 2d DCA 1987); Bartlett v. State, 508 So.2d 567 (Fla. 2d DCA 1987).
Retrieving the full opinion text from the archive…
John L. WALKER, Appellant,
v.
STATE of Florida, Appellee.
87-779.
District Court of Appeal of Florida, Second District.
Nov 6, 1987.
514 So. 2d 1149
Threadgill.
Cited by 39 opinions  |  Published

[*1150] James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.

THREADGILL, Judge.

John L. Walker appeals an order of the trial court denying his motion to suppress evidence. Walker pled nolo contendere to possession of cocaine and possession of drug paraphernalia, reserving his right to appeal the court's order. We find the trial court erred in denying the motion to suppress because the initial stop and the subsequent search violated the Stop and Frisk Law, section 901.151, Florida Statutes (1985).

In the early evening of October 17, 1986, two St. Petersburg police detectives were working in south St. Petersburg near several cottages where numerous drug arrests had previously been made. The officers were walking between the cottages trying to catch someone in the process of dealing drugs. Although one of the officers referred to it as a high crime area, they were not responding to any reports of recent criminal activity.

One of the officers approached Walker, who was on the front porch of a residence, and saw him make a quick movement "as if to conceal something" behind his right hip. The officer ordered Walker to produce what he had in his hand, and when Walker did not immediately comply, he pulled his gun and again ordered him to do so. When Walker still did not reveal the object, the officer frisked him and, feeling a hard object in Walker's back pocket, pulled out a smoking pipe. Although he articulated no reason other than past experience with others to believe Walker was armed, the officer later testified that he had feared for his life, believing Walker "probably had a weapon." He also testified, however, that he knew the object in Walker's back pocket was a pipe and not a gun before he seized it. The detectives then arrested Walker for possession of drug paraphernalia. A subsequent search of Walker's pockets produced a piece of rock cocaine which Walker admitted was his.

Walker argues that the pipe, cocaine and statement made immediately after his arrest should have been suppressed. We agree. While a law enforcement officer may temporarily detain a person for investigation under circumstances reasonably indicating that the person has committed, is committing, or is about to commit a crime, § 901.151, Fla. Stat. (1985), the detention cannot be based upon mere suspicion of criminal activity. Coladonato v. State, 348 So.2d 326 (Fla. 1977); Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984); Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983).

To justify temporary detention, the officer must have a "founded suspicion" based upon factual observations in light of his knowledge and experience. Mere suspicion, on the other hand, is no better than random selection, sheer guesswork or hunch. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). Here the officer had no more than a mere suspicion when he commanded Walker to show what was in his hand. There was no testimony that Walker's presence on the porch of a residence was unusual in any way, and the fact that he was in a high crime area is not alone sufficient to conclude that he was engaged in, or about to engage in, criminal conduct. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Nor do we find that Walker's quick movement to conceal something could create a "founded" suspicion.[*1151] An officer who observes someone in a high crime area make such movement may have his suspicions aroused, but may not legally detain the person for further investigation. G.J.P. v. State, 469 So.2d 826 (Fla. 2d DCA 1985); Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978).

Even were there reasonable suspicion to detain Walker, the officer exceeded the permissible scope of an investigatory pat-down. Where an officer has probable cause to believe that someone properly detained is armed with a dangerous weapon and presents a threat to his safety, the statute allows a search only to the extent necessary to disclose such a weapon. § 901.151(5), Fla. Stat. (1985). The search may not ordinarily go beyond a pat-down of the outer clothing. Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978). Seizure of a weapon or other evidence of a criminal offense found during the search is permissible only if the officer reasonably believes that the object sought to be seized is a weapon. Dunn v. State, 382 So.2d 727 (Fla. 2d DCA 1980). Here, the officer candidly admitted that he knew the object he felt in Walker's pocket was not a weapon. Clearly therefore, he could not legally reach into Walker's pocket. Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982); Raleigh v. State, 404 So.2d 1163 (Fla. 2d DCA 1981).

Although the officer also testified that the stem of the pipe was in plain view, we do not find that the pipe alone could constitute probable cause to arrest for possession of paraphernalia. Because pipes are used to smoke materials other than drugs, they are not contraband per se. There was no testimony that the officers noticed any odor or residue that suggested the pipe was used to smoke drugs. The rock cocaine found during the subsequent search of Walker supplied probable cause to believe the pipe was paraphernalia, but the seizure of the cocaine could not be justified as a search incident to arrest as there was no probable cause to arrest in the first place. A search may not be validated by what it produces. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The officer's only articulable reasons for the stop and search were that he was in a high crime area and saw Walker make a quick furtive movement. This court has expressly held these factors insufficient to justify temporary detention. G.J.P., 469 So.2d 826. Moreover, even had there been proper grounds to detain Walker and search him for weapons, the officer knew before seizing the pipe that it was not a weapon. He thus exceeded the permissible scope of such a search as outlined in section 901.151.

Accordingly, we reverse and remand with instructions to discharge Walker on these offenses.

SCHEB, A.C.J., and CAMPBELL, J., concur.