Gun and Drugs were Thrown out after an Illegal Pat Down / Search
Fourth Amendment right to be free from unreasonable searches and seizures
Case Excerpt: “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.”)”
. . .
“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.”
The Complete Pat Down Opinion is available for download here.
Source: 36 Fla. L. Weekly D804a