#### Jeffrey Hal SPRINKLE, Appellant, v. STATE of Florida, Appellee.

No. 79-163.

District Court of Appeal of Florida, Fifth District.

Jan. 13, 1982.

Rehearing Denied Feb. 19, 1982.

*1083Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.

PER CURIAM.

The issue on appeal is whether a firearm found on appellant during a weapons search should have been suppressed on appellant’s motion. The trial court denied the motion and appellant pleaded nolo contendere to a charge of carrying a concealed firearm, specifically reserving his right to appeal the denial of his motion to suppress.

The trial court had before it depositions of the officers involved in the search, from which we glean the following facts. Appellant and a male companion were in a bar in Orange County when four deputies, one of whom was in uniform, came in to make a routine check for violations of topless dancing ordinances. During their inspection they noticed appellant and his companion watching them intently. Appellant moved several times so he could keep them in sight. At least one of the officers recognized appellant and his companion as members of the Outlaws motorcycle gang, and was aware of reports that appellant, as well as other members of the gang, was often armed.

Just prior to the officers’ departure after about ten minutes, appellant’s companion left the bar, and as the officers left, appellant exited behind them. Once outside, appellant, his companion and the officers engaged in conversation. The officer who searched Sprinkle knew him to be an Outlaw, had heard that Sprinkle had previously been found with weapons in his possession, was apprehensive for his own safety during their conversation and determined that a weapons search was necessary for his and the other officers’ protection.

We think this case is controlled by the principles expressed in *Ingram v. State,*264 So.2d 109 (Fla. 4th DCA 1972) where under similar circumstances a weapons search was upheld. There, the court held that the validity of the search did not depend on the application of the “stop and frisk law,” (now section 901.151, Florida Statutes [1979]), but on Fourth Amendment considerations as well as consideration of section 12, Article I of the Florida Constitution. Applying the test enunciated in *Terry v. State of Ohio,*(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, viz:

> “. .. it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action was appropriate?”

the court held the limited weapons search to be valid. It went on to say:

> By applying the principles expressed in *Terry v. State of Ohio,*we conclude that under the facts of the present case, the *1084police officer had a reasonable ground under the circumstances of his encounter with the defendant to believe the defendant to be armed and dangerous and made a reasonably limited search for the purpose of neutralizing such danger. For us to hold that the officer was required to disregard the reports he had received because they were of a hearsay nature is not reasonable. Prudent people act on “hearsay” in countless matters.

*Ingram*at 111.

The court further stated that if the officer had sought out the defendant without probable cause for arrest and thereby intentionally initiating the encounter, the search would not be justified. But those were not the facts in *Ingram,*nor are they the facts here. The presence of the officers and Sprinkle in the same bar at the same time was happenstance. The officers had all left the bar and could not avoid contact with Sprinkle, who voluntarily chose to exit the bar right behind them. Had Sprinkle wished to do so, he could have stayed where he was until the officers were gone, because they had not addressed him or his presence in any way, other than to take note of his watching them. In view of his suspicious behavior in the bar, his known reputation for carrying weapons, and his initiation of the encounter by following them out, the officers were justified in conducting a limited weapons search of appellant for their protection while in each other’s presence.

The judgment is AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion, this is a ease to be decided under our Stop and Frisk Law, section 901.-151, Florida Statutes (1979), which in pertinent part reads, with emphasis supplied:

> (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

> 

> (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) *has probable cause to believe that any person whom he has temporarily detained or is about to detain temporarily, is armed*with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

> (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).

The facts of this case are that Orange County deputies on patrol went to a “topless” bar to see if a county ordinance forbidding lewd conduct was being violated. While there they saw appellant, an Outlaw Motorcycle Gang member, and his comrade, also an Outlaw, acting in a suspicious fashion. They were persistently staring at the deputies. When the deputies left the bar the two Outlaws left, one preceding the deputies, one following, them. There were four deputies and two Outlaws. At least one of the deputies knew at least one of the Outlaws, and the deputies knew, as we all do, that the Outlaws are frequently armed. *1085The testimony at the suppression hearing consisted only of depositions of officers which we have read just as did the trial judge.

In reading the evidence, it is clear none of the deputies, no one, had any reason to believe appellant had “committed, is committing or is about to commit a violation” of law. Thus the deputies had no lawful right to require appellant to stop. It is urged by the state that the deputies knew Outlaws carry weapons, often concealed firearms, thus they .had a right to stop because carrying concealed firearms is unlawful. This is a bootstrap argument; one which would have us justify the search by its fruits — they suspected a firearm, searched for one, found one, thus the search was constitutionally valid. No, they cannot stop unless they have *reason*to believe a violation of law is involved. Not a mere suspicion. The deputies needed to have a founded suspicion; “a suspicion which has some factual foundation in the circumstances observed by the [deputies], when those circumstances are interpreted in the light of the [deputies’] knowledge.” *State v. Stevens,*354 So.2d 1244, 1247 (Fla. 4th DCA 1978). *See also Kearse v. State,*384 So.2d 272 (Fla. 4th DCA 1980); Lacks v. *State,*366 So.2d 1223 (Fla. 4th DCA 1979).

In addition to the fact that the stop was not proper, I also must say the search was illegal. As the statute says, only when the officer has probable cause to believe the person is armed may he search him. Here the deputies did not testify to any cause to believe appellant was armed, except that all Outlaws are usually armed and one deputy had heard defendant had been previously found armed. (It turned out he was really found armed the next day according to a deposition statement.) That is insufficient evidence to support a search. The deputies testified the reason they searched appellant and his comrade was because they were afraid of them. That is not a legal reason to search. It is a very practical and obviously an intelligent reason but not one which allows the fruits of the search to be introduced into evidence at trial. If the courts approved a search based upon fear, then all a police officer would have to do to justify all of his searches would be to say he was afraid. Even if we approve a “reasonable” fear basis for search then almost as many searches would be upheld. This is especially true in this case; these two motorcycle gang members who purposely dress and conduct themselves in a fashion to elicit fear and scorn could hardly be heard to complain when they are met in the middle of the night outside a bar. In summary, there was no lawful stop and no lawful frisk search. *Terry v. Ohio,*392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“Outlaws” as well as outlaws (criminals) are entitled to the constitutional guaranties all persons enjoy. In fact, it is only when searches are fruitful that the courts are called upon to enforce this paramount constitutional law. Police must obey the constitutional law as well as enforce the statutory law.

I would reverse.