FL2 x 2: Patdown without RS was invalid || Second patdown was without RS

Defendant consented to a search of his car, and the officer patted down the defendant without any reasonable suspicion because it was his policy. The patdown was unreasonable and suppressed. Rodriguez v. State, 16 So. 3d 317 (Fla. App. 2DCA 2009).*

First patdown produced nothing, and there was no constitutional basis for a second. Ballenger v. State, 16 So. 3d 1022 (Fla. App. 2 DCA 2009):

Once the first pat-down was finished without producing any threat to the officer, the constitutional underpinning of a pat-down evaporated, and the deputy should have removed the handcuffs from Ms. Ballenger. “Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee. … Absent other threatening circumstances, once the pat-down reveals the absence of weapons[,]” the use of handcuffs is improper. Reynolds v. State, 592 So. 2d 1082, 1084, 1085 (Fla. 1992). Once Ms. Ballenger had been searched for weapons, any suspicion that she posed a threat vanished. As in Reynolds, in this case “the suspect [] offered no resistance, [was] not particularly belligerent, and did not make any threats. Under these facts, the use of handcuffs after the pat-down was not reasonably justified under the circumstances.” Id. at 1086. The use of the handcuffs is not the sole basis for our reversal, although it is a factor under these circumstances.

Unlike the first pat-down, the second pat-down was constitutionally improper. In order to legally pat-down a detainee without consent or a warrant, “the officer must be able to articulate some basis which would support a reasonable belief that an individual is armed.” D.L.J. v. State, 932 So. 2d 1133, 1134 (Fla. 2d DCA 2006). When the second deputy patted down Ms. Ballenger, she had already been subjected to a pat-down revealing no weapons, and her hands remained cuffed behind her back. At the suppression hearing, the second officer offered no justification for the second pat-down, saying only that the first deputy requested it. Under these circumstances, there was no reasonable basis to believe that she was armed or posed a threat. Accordingly, the second pat-down was a violation of Ms. Ballenger’s Fourth Amendment rights, and the evidence it produced must be suppressed.

An officer approached a group in a housing project, and defendant refused to talk to him and “darted” into an apartment. The officer gave chase and defendant dropped drugs inside. The entry violated Payton. Byrd v. State, 16 So. 3d 1026 (Fla. App. 2 DCA 2009):

Here, the arresting officer described a consensual encounter with some men who he suspected might have been trespassing at a public housing complex. Byrd decided not to speak with the officer and left, as he was free to do. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (stating that in a consensual encounter, a citizen may either comply with a police officer’s requests or ignore them; the citizen is free to leave). The officer did not order Byrd to stop. He followed Byrd into the residence because he “didn’t know if he had a gun, or what the case may be.” He offered no facts to support this suspicion. He just thought that something wasn’t right.

The type of mere suspicion presented here would be insufficient to support even an investigatory stop. See id. It is clearly inadequate to establish the kind of “grave emergency” necessary to rebut the presumption that a warrantless entry into a residence is unreasonable. Indeed, in its order on the motion to suppress the circuit court correctly determined that the officer’s attempt to stop Byrd was not supported by a founded suspicion of criminal activity.