This court found that the officers were operating merely upon a "hunch" and that they lacked reasonable suspicion to justify the initial stop and discovered the marijuana only after the initial illegal detention. See id.; accord Mullins v. State, 366 So.2d 1162 (Fla. 1979); D.G. v. State, 714 So.2d 644 (Fla. 4th DCA 1998); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). Unlike Romanello, here, Deputy Fawcett testified that he detained T.P. only after he first smelled the previously burnt marijuana coming from his car, giving him probable cause to search and detain.
The officer could investigate appellant's presence in the legally parked vehicle only if he had "a founded or reasonable suspicion which requires further investigation to determine whether its [the car's] occupants have committed, are committing, or are about to commit a crime." Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). Having observed the vehicle for approximately three to four minutes and seeing no suspicious activity, the officer had no reason to approach the vehicle or its occupants.
Legally parked cars do not give police officers a basis for detaining or searching persons therein. See Griggs v. State, 565 So.2d 361 (Fla. 1st DCA 1990); Spence v. State, 525 So.2d 442 (Fla. 5th DCA 1988); McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). Cf. State v. Warshan, 580 So.2d 317 (Fla. 3d DCA 1991); State v. Jacobs, 574 So.2d 277 (Fla. 3d DCA 1991); State v. Milmoe, 541 So.2d 718 (Fla. 4th DCA 1989). GLICKSTEIN, C.J., ANSTEAD, J., and WALDEN, JAMES H., Senior Judge, concur.
The stop of the vehicle "must be predicated on a founded or reasonable suspicion which requires further investigation to determine whether its occupants have committed, are committing, or are about to commit a crime." Lower v. State, 348 So.2d 410, 411 (Fla.2d DCA 1977). See also sec. 901.151, Fla. Stat. (1975) ("stop and frisk") and Terry.
The judgment is AFFIRMED, and the sentence is REVERSED and REMANDED for resentencing because of the error in retaining jurisdiction. Mullins v. State, 366 So.2d 1162 (Fla. 1978); Colodonato v. State, 348 So.2d 326 (Fla. 1977); Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982); Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). BOOTH, C.J., and MILLS, J., concur.
Considering those factors in the context of this case, we conclude that the initial detention of Mr. Tamer was founded upon a reasonable, articulable suspicion of criminal activity, and therefore, affirm the denial of his motion to suppress.See State v. Hundley, supra; State v. Stevens, supra; but see Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). We note that in collateral criminal proceedings, the state successfully appealed an order suppressing the evidence seized from Mr. Tamer's automobile.
354 So.2d at 1247. We agree with the trial court's determination that the facts of this case do not give rise to a founded suspicion of criminal activity, see Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Schneider v. State, 353 So.2d 870 (Fla. 4th DCA 1977); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977), and we hold that the police unlawfully stopped the car occupied by appellees Beja and Lennon. Next, appellant contends that even if the court properly granted the motion to suppress with regard to appellee Beja, the court improperly granted appellee Lennon's supplemental amended motion to suppress the firearm.
In addition, as Officer Gaff stood talking to the caller, Mrs. Frederick, the same car drove past again, adding to the suspicious circumstances. In Codie v. State, 406 So.2d 117 (Fla.2d DCA 1981), the court found the fact that the vehicles in question were parked on private property, the dimly lit side parking lot of a closed gas station, as opposed to being in a public parking lot during business hours, to be a compelling circumstance, although in Codie there also had been numerous reports of criminal activity in the area to support the officer's suspicion. See also Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980). Cf. Lower v. State, 348 So.2d 410 (Fla.2d DCA 1977). Some guidance may also be drawn from Lightbourne v. State, 438 So.2d 380 (Fla. 1983). Although we recognize in that case there had been no stop and thus no founded suspicion was necessary, the court thought it significant in determining the reasonableness of a detention that the officers were responding to a call from a citizen to investigate a suspicious automobile, thus "they were not acting on their own `hunch' as in `roving patrol' cases."
On the evidence presented, viewed most favorable to state, there is no showing of an articulable suspicion that the vehicle or the occupants were engaged in criminal activity. Cases relied upon by the appellant are controlling. Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980) (defendant walking "briskly" away from officers after seen leaning into occupied car parked in service station lot, no justification for stop); Keenan v. State, 372 So.2d 1012 (Fla. 1st DCA 1979) (defendant's conversing with one known to "sell sexual services", and driving in a high crime area late at night, no basis for detention); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977) (defendant backed his automobile out of parking space in business area after business hours driving away at a faster than average speed when a police car drove by, insufficient as a reasonable justification for a stop). On these facts we must reject the argument that there was a "preintrusive open view" of a concealed firearm.
Merely driving around town in an out-of-state van, or walking along a street late at night, or looking or pointing at policemen, or pulling out of a parking lot when the police come into view, with nothing more, is insufficient to justify an individual's detention. Coladanto v. State, 348 So.2d 326 (Fla. 1977); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976); Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976). We think that the facts in this case are sufficient to satisfy the State v. Stevens test. There was specific information regarding burglaries in the area at the particular time when the defendant was found walking in the dark carrying a large box.