       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 12, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2452
                         Lower Tribunal No. 16-17787
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                                Darryl Brown,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-
Fonts, Judge.

     Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney
General, for appellant.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellee.


Before LAGOA, LOGUE and SCALES, JJ.

      PER CURIAM.

      Affirmed.
      The State of Florida v. Darryl Brown
      Case No. 3D17-2452

      LOGUE, J. (concurring).

      I concur for the reasons stated in the trial court’s well-reasoned order which

I would adopt as this court’s own:

                               BACKGROUND

                Brown was charged in this case with possession of a
         firearm by a convicted felon. He seeks to suppress the firearm,
         which was seized from the glove compartment of his vehicle
         following a traffic stop. On August 27, 2016, Officer Desiree
         Zayas conducted a traffic stop of a vehicle driven by Brown
         after observing the vehicle commit a traffic violation. Officer
         Anthony Jimenez responded to the scene shortly thereafter as
         a backup unit. During the encounter, Officer Zayas asked
         Brown on two separate occasions whether the vehicle
         contained any weapons. Both times, Brown responded that it
         did not. A search of the vehicle’s glove compartment by
         Officer Jimenez, however, revealed the firearm which is the
         subject of the Defendant’s motion. The question presented for
         this Court to examine is whether Officer Jimenez’s search of
         the vehicle following the traffic stop was justified.

                                      ANALYSIS

                The standards for assessing the constitutionality of a
         protective search of the passenger compartment of a vehicle
         for weapons in the absence of probable cause to arrest were
         outlined by the United States Supreme Court in Michigan v.
         Long, 463 U.S. 1032 (1983). In Long, the Supreme Court
         extended a Terry protective search for weapons to the
         passenger compartment of a vehicle during a lawful
         investigatory stop, holding that a police officer who is
         performing a traffic stop may conduct a limited search of the
         vehicle for weapons if the officer “possesses a reasonable


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belief based on ‘specific and articulable facts which, taken
together with the rational inferences from those facts,
reasonably warrant’ the officers in believing that the suspect
is dangerous and the suspect may gain immediate control of
weapons’. Id. at 1049-50 (citing Terry v. Ohio, 392 U.S. 1, 21
(1968)). In State v. Dilyerd, 467 So. 2d 301, 304 (Fla. 1985),
the Florida Supreme Court applied the standard enunciated in
Long and characterized two questions as “determinative” in
its analysis of an officer’s protective search of a vehicle: “(1)
was the stop itself justified and, (2) did the deputy possess a
reasonable belief based on specific and articulable facts,
along with rational inferences, which justified his belief that
the occupants of the car were dangerous and might gain
control of weapons within the car.” Brown does not dispute
that the stop itself was justified. He does, however, challenge
whether Officer Jimenez possessed a. “reasonable belief
based on specific and articulable facts, along with rational
inferences, which justified his belief that [Brown] was
dangerous and might gain control of weapons within the car.”
       At the suppression hearing, Officer Zayas testified that
she initially approached Brown’s vehicle with her weapon
drawn because she felt that Brown was trying to-hide
something. She further testified that she was concerned
Brown was hiding something and concerned with his
movements. The officer, however, did not articulate any
specific movement that led to her belief that Brown was
dangerous and might gain control of a weapon. She testified
that, despite retrieving his driver’s license and registration
from the sun visor, Brown turned his body towards the center
of the vehicle. However, the body camera footage revealed
that Brown only did so after receiving permission from
Officer Jimenez in order to retrieve his insurance paperwork
from the center console. Furthermore, while Officer Zayas
may have suspected that Brown was hiding something, there
was no testimony indicating that she in fact witnessed Brown
hide (or attempt to hide) something in the vehicle.
       Officer Jimenez, who arrived on scene shortly after
Officer Zayas, testified that he was concerned for officer
safety based on what he had been told by Officer Zayas. He
further testified that, when he first arrived, one of the officers


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(presumably Officer Zayas or Rodriguez) told him that
Brown was reaching for something. Officer Jimenez, himself,
did not observe Brown reach for anything in the vehicle. He
testified that Brown was cooperative and never removed his
hands from the steering wheel throughout his interaction with
the Defendant, but he became concerned when Brown looked
at the glove compartment. However, Officer Jimenez
acknowledged that it was possible that Brown was looking at
him since the officer was standing in the same direction as the
glove compartment, relative to Brown.
        The specific facts articulated by the officers fail to
demonstrate that their fear of immediate danger was
objectively reasonable so as to justify a protective search of
the vehicle.
        The officer’s suspicions that Brown was hiding
something, alone, are insufficient to justify a weapons search.
There must be specific, articulable facts that demonstrate that
the officer’s belief that the occupant of the vehicle is
dangerous is reasonable. Brown's brief look at the glove
compartment, without more, does not support a finding that it
was reasonable to believe he was dangerous or might gain
control of a weapon in the car. The Court recognizes that it
must look to the totality of the circumstances. However, a
review of the body camera footage demonstrates that Brown
was cooperative throughout the encounter. Officer Jimenez
testified to this fact as well. Brown kept his hands on the
steering wheel as directed by Officer Zayas except for when
he needed to search for his license, registration, and insurance
paperwork. Brown did not make any suspicious movements
that were discernable in the body camera footage. Nor did
either officer testify that they witnessed a particular
movement. While Officer Zayas testified that she felt Brown
was hiding something, a feeling or a “hunch” is not enough to
justify a protective search. Therefore, the Court finds that the
officers did not have a reasonable and articulable suspicion of
danger justifying the search of Brown's car as protective, as
Long requires.




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