2D09-5868 / Dawson v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D09-5868

Case Date: 04/15/2011

Plaintiff: 2D09-5868 / Dawson

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JASON KEITH DAWSON,                                                                           )
)
Appellant,                                                                                    )
)
v.                                                                                            )   Case No. 2D09-5868
)
STATE OF FLORIDA,                                                                             )
)
Appellee.                                                                                     )
___________________________________ )
Opinion filed April 15, 2011.
Appeal from the Circuit Court for
Hillsborough County; Wayne S.
Timmerman, Judge.
James Marion Moorman, Public Defender,
and Matthew D. Bernstein, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor
Assistant Attorney General, Tampa, for
Appellee.
MORRIS, Judge.
Jason Keith Dawson appeals his judgments and sentences for armed
trafficking in a controlled substance, felon in possession of a firearm, and obstructing or
opposing an officer without violence.   Dawson argues that his motion to suppress

should have been granted because the officers did not have reasonable suspicion that
he was armed with a dangerous weapon and that the officers' pat-down search was
therefore unlawful.   We agree and reverse.
I.                                                                                            Facts
At approximately 11:00 p.m. on January 21, 2008, two Hillsborough
County Sheriff’s deputies were in an undercover vehicle conducting an aggressive
control campaign in North Tampa.   The officers testified this area was known for
criminal activity.   While patrolling the area, the officers spotted Dawson walking along
Dale Mabry Highway.   Dawson was walking along the fog line on the road, but he was
stumbling.   The officers decided to investigate so they parked their vehicle near Dawson
and exited the vehicle at the same time.   Both officers were wearing "battle dress
uniforms."   One of the officers asked Dawson to come speak to the officers.   At this
point in time, Dawson appeared nervous.
The officers testified that while they were speaking with Dawson, Dawson
repeatedly put his hands into his pants and jacket pockets, even after being instructed
several times not to do so.   Because Dawson was wearing baggy clothing, the officers
could not observe any bulges.   However, one of the officers testified that he believed
that Dawson "could have contraband or a weapon" and on that basis, he conducted a
pat-down of Dawson.
As the deputy felt Dawson’s back pocket, he felt what he thought was a
bag of pills, based in part on the fact that he saw a portion of a plastic bag sticking out
of Dawson's pants.   Then, while patting down Dawson's front pocket, the deputy felt
what he believed was a gun.   Dawson tried to put his hand into the same front pocket,
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and according to the officer, he and Dawson began to struggle.   The deputy further
testified that during that struggle, Dawson tried to hit the deputy with his fist.   Dawson
was able to break free and run about fifteen feet before the officers subdued him.   The
officers discovered ecstasy pills and a gun in Dawson's pockets.   After Miranda1
warnings were administered, Dawson told the officers that he got the pills from a friend
and that the gun was given to him by another friend for protection.
Dawson's version of the events was different.   Dawson testified that he
was walking along Dale Mabry talking on his cell phone when a Ford Expedition pulled
in front of him blocking his route of travel.   He testified that the officers rolled the
windows down and ordered him to stop.   One of the officers asked for Dawson's
identification and began interrogating him.   Dawson testified that he never put his hands
in his pockets and never heard the officers tell him not to do so.
In his suppression motion, Dawson argued that a pat-down search may
only be conducted if the officers have a reasonable belief that the person detained is
armed with a dangerous weapon and that routine pat-down searches based on general
officer safety concerns are not constitutionally permitted.   The trial court denied the
motion.   Dawson then pleaded guilty to the charges while specifically reserving the right
to appeal the denial.   We are now asked to determine whether the facts of this case
justified the pat-down search.
II.                                                                                           Analysis
In reviewing the trial court's denial of Dawson's suppression motion, we
must "accord a presumption of correctness to the trial court's determination of the
1Miranda v. Arizona, 384 U.S. 436 (1966).
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historical facts, but must independently review mixed questions of law and fact that
ultimately determine the constitutional issues arising in the context of the Fourth
Amendment."   Moody v. State, 842 So. 2d 754, 758 (Fla. 2003).   We therefore look to
determine if competent, substantial evidence supports the factual findings, and we
review de novo the trial court's application of the law to the facts.   See State v. Clark,
986 So. 2d 625, 628 (Fla. 2d DCA 2008).
This case presents the issue of two conflicting interests: the Fourth
Amendment right to be free from unreasonable searches and seizures and the ongoing
concern for officer safety in an increasingly dangerous profession.   But even though the
facts of this case reveal an alarming result of the pat-down—a gun—we are not
permitted to be distracted by the fruit of the search.   Instead, our focus must be on the
justification for the search.   See D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA 2010)
("The success of the search . . . is not now and never has been the test to be applied.").
In a case with similar facts, the Fourth District was asked to determine the
issue now presented to us: whether the actions of the defendant in keeping his hands in
his pockets provided reasonable suspicion that the defendant was armed with a
weapon.   See Ray v. State, 849 So. 2d 1222 (Fla. 4th DCA 2003).   In Ray, the appellant
was stopped for riding his bicycle without the proper lights.   Id. at 1224.   The area in
which the stop occurred was known for illegal drug activity, and Ray was acting fidgety
according to the officer who conducted the stop.   Id.   The officer also testified "that
despite several requests, Ray did not want to remove his hands from his jacket pocket."
Id.   Based on that fact, along with the officer's "knowledge of the link between drugs and
weapons," the officer was concerned for his safety and conducted a pat-down search
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which resulted in the discovery of drugs.   Id.   The trial court denied Ray's suppression
motion on the basis that the facts "were sufficient to give the [officer] reasonable
suspicion to believe Ray was armed."   Id.
On appeal, the Fourth District reversed.   The court noted that one
recognized circumstance justifying a weapons pat-down search is the "combination of
the defendant's nervousness and the officer's observation of a bulge in the defendant's
clothing."   Id. at 1225.   However, much like the facts of this case, the officer in Ray
expressly testified he did not see any bulges in Ray's clothing.   Id.   The court dismissed
the officer's testimony regarding a link between weapons and drugs because there was
simply no evidence linking Ray to drugs or any other type of criminal activity.   As a
result, the court held that the fact that Ray was reluctant to remove his hands from his
pockets—standing alone—was "insufficient to establish a reasonable suspicion that Ray
was armed with a dangerous weapon."   Id.
The Fifth District has likewise held that a person's reluctance to remove
his hands from his pockets—without more—does not provide reasonable suspicion
warranting a pat-down search.   See D.B.P., 31 So. 3d at 886.
And in Coleman v. State, 723 So. 2d 387, 387 (Fla. 2d DCA 1999), we
held that a pat-down search was improper where the only justification provided by the
officer was the fact that the appellant "was acting nervous and holding his hand over his
pants pocket."   Similar to this case, the officer in Coleman testified he did not see any
weapons or notice any bulges in the appellant's clothing that would indicate the
appellant was carrying a weapon.   Id.
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For a weapons pat-down search to be valid, an officer must identify
objective facts indicating that the person detained is armed and dangerous.   See Howell
v. State, 725 So. 2d 429, 431 (Fla. 2d DCA 1999).   But here, the only justification
provided by the officers was the fact that Dawson refused to comply with their requests
to keep his hands out of his pockets.   That fact—standing alone—was insufficient to
establish reasonable suspicion.   The comment made by one officer that he believed
Dawson "could have contraband or a weapon" was simply unsupported by any
identifiable objective facts to lead him to that conclusion.   Because "routine patdown
searches based on general concern for officer safety are not constitutionally permitted,"
McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008), the officers lacked
reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred
by denying the suppression motion.
III.                                                                                        Conclusion
We are cognizant of the enormous risk that law enforcement officers face
each and every day, and we do not treat lightly the concerns for officer safety.
However, such concerns cannot trump the Fourth Amendment protection from
unreasonable searches and seizures unless officers can articulate a reasonable basis
to believe that the person is armed.   The facts of this case, even when viewed in the
light most favorable to the State, do not meet that threshold requirement.   Accordingly,
we reverse the trial court's denial of the motion to suppress.
NORTHCUTT and CRENSHAW, JJ., Concur.
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