In the Interest of J.B

Full title: IN THE INTEREST OF J.B., A CHILD

Court: District Court of Appeal of Florida, Fourth District

Date published: Mar 2, 1994

632 So. 2d 708 (Fla. Dist. Ct. App. 1994)

Opinion

No. 92-3564.

March 2, 1994.

Appeal from the Circuit Court, Indian River County, Paul B. Kanarek, J.

Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Michelle A. Konig and Dawn S. Wynn, Asst. Attys. Gen., West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

The opinion of this court issued December 29, 1993 is withdrawn and the following opinion is substituted. The motions for rehearing filed by appellant and the state, considered in light of this substituted opinion, are denied.

Appellant entered a plea of nolo contendere to charges of tampering with a vending machine, petit theft, resisting arrest without violence and possession of marijuana. He reserved the right to appeal the trial court's order denying his motion to suppress evidence obtained from his person. Appellant argues the police officers did not have a reasonable, individualized suspicion that appellant was armed and dangerous to justify a protective frisk or "patdown" pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Maryland v. Buie, 494 U.S. 325, 334 n. 2, 110 S.Ct. 1093, 1098 n. 2, 108 L.Ed.2d 276 (1990). We hold the officers had a founded suspicion to conduct a Terry stop and thereafter formulated a particularized suspicion based on "specific and articulable facts" to justify the resulting patdown. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the trial court properly denied appellant's motion to suppress coins and a straw removed from his pocket.

We find merit, however, in appellant's argument that the trial court erred when it failed to suppress marijuana discovered by a police officer when he opened and inspected a Marlboro cigarette box removed from appellant's pocket. See C.H. v. State, 548 So.2d 895 (Fla. 3d DCA 1989).

Accordingly, we affirm in part and reverse in part the trial court's order denying appellant's motion to suppress all evidence obtained from his person. We affirm appellant's convictions of tampering with a vending machine, petit theft and resisting an officer without violence. We reverse appellant's conviction for possession of marijuana and remand this cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DELL, C.J., KLEIN, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.