D.S. (Juvenile) v. State, 37 Fla. L. Weekly D825 (Fla. 3d DCA, Apr 11, 2012): Motion to Suppress denied, Reversed and Remanded.
D.S. appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing.
D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search. She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.
The trial court erroneously denied D.S.’s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers’ investigation into the burglary call.
Officer Lambert’s search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee’s outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:
Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.
Hmm, sounds like how Resisting Without Violence is used today…
We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.’s adjudication of delinquency and remand with directions that he be discharged.