DocketNumber: No. 5D10-1266
Citation Numbers: 52 So. 3d 793, 2010 Fla. App. LEXIS 20137, 2010 WL 5391539
Judges: Lawson, Palmer, Torpy
Filed Date: 12/30/2010
Status: Precedential
Modified Date: 10/19/2024
The State appeals the order entered by the trial court granting the motion to suppress filed by Juvan Nichols (defendant).
The State filed a two count information charging the defendant with possession of a firearm by a convicted felon,
At the hearing on the defendant’s suppression motion, the arresting officer testified that when he spotted the defendant crossing the street in a diagonal direction he activated his emergency lights, stepped out of his car, and made contact with the defendant. The officer stated that his in
Upon reviewing the evidence, the trial court granted the defendant’s motion to suppress, concluding that the stop was invalid. The court also found that the arresting officer did not have probable cause to conduct a pat-down search of the defendant. Specifically, the court ruled as follows:
THE COURT: I probably agree with the dissent in [Dobson v. State, 737 So.2d 590, 592 (Fla. 4th DCA 1999) (holding that the officer was justified to conduct a pat-down search when he observed a bulge in the defendant’s pocket and thought it could have been a weapon) ] more than I do with the majority ... because I don’t believe the officer had probable cause for a pat-down. And I don’t think he had probable cause, or even reasonable suspicion, to turn around and stop him, even if there’s a 10-foot discrepancy. He doesn’t know where he was going. He can’t say where the shortest route was.
And by [the defendant’s] testimony and by the officer’s testimony, he was acting in compliance with [section 316.130(10) ], which says, the passenger shall yield the right of way to vehicles upon the roadway.
[PROSECUTOR]: But that’s the dissenting opinion, Judge. That’s not controlling case law, if the ...
THE COURT: I’m not citing that as my reason. I’m citing the lack of the officer’s probable cause or reasonable suspicion to turn around and pull him over. He even had to go back and verify by measuring that at most, it was a 10-foot derivation ... And even if there’s a 10-foot discrepancy, no reasonable person would find that a 10-foot deviation in crossing the street, you know, is criminal or even non-criminal sanctionable activity. There’s absolutely no crosswalks, and nothing other than an open curving street.
And he’s crossing the street. He yields the right of way to the officer, who then does a U-turn and pulls him over. And I just don’t think there’s any probable cause for it ... So the motion to suppress is granted.
The State challenges the trial court’s suppression order, arguing that the trial court made incorrect conclusions of law. We agree.
First, the trial court erred in concluding that the arresting officer lacked probable cause to stop the defendant for jaywalking. The officer witnessed the defendant crossing the street in a diagonal direction. Section 316.130(12) of the Florida Statutes states that, when there is no available cross-walk, an individual must cross the street by a route at right angles to the curb or the shortest distance possible. A diagonal route across the street is not shorter than a direct route at right angles to the curb. Thus, the arresting officer had probable cause to stop the defendant to issue him a citation because the officer could have reasonably concluded that the defendant was jaywalking.
Second, the trial court erred in concluding that the officer did not have probable cause to conduct a protective pat-down search of the defendant. An officer is permitted to conduct a protective pat-down search of a suspect when the officer
REVERSED and REMANDED.
. This court possesses jurisdiction pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure.
. See § 790.23 Fla. Stat. (2009).
. See § 790.01(2) Fla. Stat. (2009).
. Section 316.130(12) of the Florida Statutes (2009) states, in pertinent part:
Pedestrians; traffic regulations
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(12) No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb.