State v. K.S.
State v. K.S.
Dissenting Opinion
dissenting.
Although this is a close question, I would affirm the order granting the motion to suppress. I find the facts do not justify an investigatory stop or a probable cause arrest. I also disagree with the court that the officer had probable cause to arrest for a misdemeanor committed in his presence, possession of an alcoholic beverage by a minor.
Recently, this court held that based upon the totality of the circumstances, an experienced police officer with knowledge of street-level narcotic transactions had probable cause to make an arrest where the officer saw the exchange of money but did not see the exchange of drugs. In Knox v. State, 689 So.2d 1224 (Fla. 5th DCA 1997), in an area known for narcotics dealing, police observed for two hours as Knox approached vehicles and passed something to the occupants of the vehicles. They also observed Knox with cash in his hand. The arresting officer detailed his experience, his knowledge of the area, the number of recent arrests in the immediate vicinity where Knox was arrested, and his opinion that Knox’s behavior was consistent with selling narcotics. Applying the six elements listed in Revels v. State, 666 So.2d 213, 216-17 (Fla. 2d DCA 1995), this court held that there was probable cause for an arrest. Knox, 689 So.2d at 1224-26.
But applying the elements of Knox and Revels to the facts of this case, I find the officer lacked probable cause to believe K.S. had committed a crime. Since there was no
There are several salient Revels elements to which the officer never testified during the hearing: actual proof of ongoing or recent narcotic activity at the specific location; additional information about suspected drug transactions that evening prior to the arrest of K.S.; or testimony that K.S. was involved with drugs prior to his arrest. Revels, 666 So.2d at 216. Absent these additional elements, the testimony was insufficient to establish probable cause for an arrest.
There was also no basis for an investigatory stop. The fact that K.S. leaned into a car and exchanged something for beer is not enough to establish the basis for an investigatory stop. State v. Paul, 638 So.2d 537 (Fla. 5th DCA 1994), rev. denied, 654 So.2d 131 (Fla. 1995) is on point. There, this court held that no reasonable suspicion existed where an officer saw several males around a vehicle but saw no exchange of cash or packaging consistent with a narcotics transaction. Id. at 538. Here, the officer saw one contact by K.S. with a vehicle and no exchange for cash. The officer saw no drug exchange hands, and, even if we consider beer a medium of exchange, these observations are insufficient to constitute a reasonable suspicion for a stop. Paul. At the time the officer seized K.S., he had only a hunch or bare suspicion that a law was being violated, and there was thus an insufficient basis for an investigatory stop. Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995). Since the seizure was illegal, all of the evidence seized was properly suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Furthermore, even if it could be argued there was a basis for a Terry
Finally, the majority holds that K.S.’ arrest was justified because he was under age 21 and in possession of the beer. See § 562.111, Fla. Stat. (1995). I disagree. The officer testified that he did not determine K.S.’s age until after he had been arrested. Ignorant of KS.’s age, the officer did not have probable cause to arrest K.S. for a violation of section 562.111.
The trial judge’s ruling comes to us clothed with the presumption of correctness. Smith v. State, 378 So.2d 281 (Fla. 1979); State v. Hardy, 610 So.2d 38 (Fla. 5th DCA 1992), rev. denied, 621 So.2d 433 (Fla. 1993). I would affirm because the police had no probable cause for arrest and no basis for an investigatory stop. Accordingly, I respectfully dissent.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla. Stat. (1995) (Florida's Stop and Frisk Law).
Opinion of the Court
The state appeals from the trial court’s order suppressing evidence which was discovered after K.S. was taken into police custody. The state argues that the actions of the police officer, which detained K.S., were proper whether based on probable cause or-an arrest. We agree and reverse.
At the suppression hearing, Detective Wilkinson of the Seminole County Sheriffs Department, testified he was conducting surveillance on the evening of November 28, 1995 in a neighborhood of Altamonte Springs known for illegal drug sales. He was hiding in some bushes when he observed K.S., a minor, holding a green bottle in a brown paper bag, which appeared to be an open container of alcohol. K.S. then discarded the bottle and a car pulled up. Wilkinson observed K.S. converse with the driver, and put his left hand, palm up, into the driver’s window, and stir small items in his palm with his right index finger. He then selected two items from his palm and handed them to the driver.
Wilkinson could not discern what the items were or how they were packaged. He could, however, describe them as being small items. He stated that in his experience with drug activity in that neighborhood, K.S.’s actions were “very indicative of a drug transaction.”
Wilkinson then observed K.S. lean into the ear window and retrieve six, twelve-packs of Budweiser beer from the passenger seat. K.S. then walked toward a nearby grocery store, and after entering, placed the beer on top of the counter.
Wilkinson testified he feared K.S. would flee. Thus, he waited until K.S. had entered the grocery store before leaving his hiding place. He then entered the store and grabbed K.S. by the shirt from behind. K.S. dropped seven pieces of crack cocaine on the floor, and tried to step on them.
Probable cause exists where police observe other factors which lead them to believe a drug transaction is occurring, even though they do not actually observe the exchange of money for contraband. Reyes v. State, 541 So.2d 772 (Fla. 3d DCA 1989).
However, we also conclude that Wilkinson had grounds to arrest K.S. at the time he approached him in the grocery store. He saw K.S. drinking from a bottle that appeared to contain an alcoholic beverage, and he saw K.S. take possession of several twelve packs of Budweiser beer. The possession of alcohol by a minor is a misdemean- or offense. § 562.111, Fla. Stat. (1995).
REVERSED AND REMANDED.
. This case is distinguishable from State v. Paul, 638 So.2d 537 (Fla. 5th DCA 1994) because Wilkinson saw more than K.S.'s mere presence around a vehicle.
. That statute provides:
562.111 Possession of alcoholic beverages by persons under age 21 prohibí ted.-
(1) It is unlawful for any person under the age of 21 years, except a person employed ... to have in his possession alcoholic beverages ... [A]ny person under the age of 21 who is convicted of violation of this subsection is guilty of a misdemeanor....
Reference
- Full Case Name
- STATE of Florida v. K.S., a child
- Cited By
- 3 cases
- Status
- Published