Opinion
No. 97-1327
Opinion filed January 14, 1998. JANUARY TERM, A.D., 1998
An Appeal from the Circuit Court for Dade County, Steve Levine, Judge. L.T. No. 96-6828
Bennett H. Brummer, Public Defender and Amy D. Ronner, Special Assistant Public Defender and Nicole M. Frost and Shaundra L. Kellam, Certified Legal Interns, for appellant.
Robert A. Butterworth, Attorney General and Richard L. Polin, Assistant Attorney General and Jan E. Martinez, Certified Legal Intern, for appellee.
Before SCHWARTZ, C.J., and FLETCHER and SORONDO, JJ.
The bare facts that C.K. was one of a group of young persons in front of a convenience store near a junior high school, in an area which was the site of prior disturbances, fall utterly short of providing the "founded suspicion" that he was engaged in improper activity which is necessary to support even aTerry stop. See Cunningham v. State, 591 So.2d 1058 (Fla. 2d DCA 1991); Jenkins v. State, 524 So.2d 1108 (Fla. 3d DCA 1988). It follows that there was no constitutional basis for an officer to order C.K. "against the wall" or for the subsequent pat down of the bulge at his waistband which revealed the firearm which formed the basis of the charges against him. See C.E.P. v. State, 704 So.2d 1115 (Fla. 3d DCA Case no. 97-1306, opinion filed, January 14, 1998), and cases cited; Hamilton v. State, 612 So.2d 716 (Fla. 2d DCA 1993). On this basis alone, the gun should have been suppressed and the charges therefore dismissed. The adjudication under review is reversed for this to be done after remand.
The officer noticed the bulge only after the search began. Even if, however, it had been seen prior to the stop it would not have provided a "founded suspicion." See Sholtz v. State, 649 So.2d 283 (Fla. 2d DCA 1995); Hamilton v. State, 552 So.2d 1145 (Fla. 5th DCA 1989).
We need not consider the appellant's arguments of other infirmities in the search, such as the claim that even if aTerry stop was justified, the pat down was not. See Smith v. State, 592 So.2d 1239 (Fla. 2d DCA 1992).
Reversed and remanded.