IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
 OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,

            Appellant,

vs.                                                                   Appeal No. CRC 00-09978 CFANO

CHRISTOPHER SZABO,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from Order on Defendant’s Motion to Suppress

Pinellas County Court

County Judge Robert J. Morris, Jr.

Tamara Felton Dudley, Esq.
Assistant State Attorney
Attorney for Appellant

Ted Shannon, Esq.
Attorney for Appellee

ORDER AND OPINION

            THIS MATTER is before the court on the state’s appeal from the trial court’s order on defendant’s motion to suppress.  After reviewing the briefs and record, this court affirms the trial court’s order granting defendant’s motion to suppress.

            The defendant’s motion to suppress argued that the stop of the defendant’s vehicle was made based on uncorroborated information that neither supported a founded suspicion of criminal conduct, nor supported a violation of Florida Statutes Chapter 316.  A trial court’s determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review.  Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997).  Furthermore, a ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.  Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978). 

At the hearing on defendant’s motion, Deputy Steven Elrod and Deputy Howard Skaggs testified for the state.  Deputy Elrod testified that on February 12, 2000, he was on routine patrol when he received a be-on-the-lookout (BOLO) report indicating that a vehicle had hit another car and possibly a street sign at the Carrington Apartments.  The report was prompted by a 911 call, purportedly from a resident of the apartment complex, that contained a description of the vehicle, the vehicle’s tag number and direction of travel.  Deputy Elrod testified that he neither verified the informant’s identity, nor verified whether any vehicles parked at the apartment complex had been hit.  Approximately two minutes after receiving the BOLO, Deputy Elrod saw a vehicle fitting the description and traveling in the same direction as the vehicle given in the report.  Although the deputy did not observe the defendant commit any traffic violations or observe any damage to the defendant’s vehicle consistent with having just been in an accident, Deputy Elrod initiated a traffic stop via his overhead lights.

Deputy Skaggs testified that he received a BOLO reporting that a vehicle in the Carrington Apartments was driving recklessly and possibly hit a couple of cars and a pole and was traveling westbound on State Road 686.  Deputy Skaggs proceeded to that location, spotted the vehicle pulled over by Deputy Elrod, and approached the driver. Deputy Skaggs also testified that he never ascertained the name of the individual that made the 911 call, and confirmed that there was no significant observable damage to the defendant’s vehicle. After a DUI investigation was conducted, the defendant was arrested for driving under the influence.

Appellate raises three arguments on appeal.  First, that this court should not defer to the trial court’s findings of fact, as they are clearly erroneous based on the uncontroverted testimony presented at the suppression hearing.  An appellate court will not reverse a trial court’s findings of fact where the findings are supported by competent, substantial evidence.  Williams v. State, 2000 WL 1224751 (Fla. 2d DCA 2000). The trial judge’s findings in the order complained of by the State are the findings that “Both deputies testified that they did not observe any traffic violations or see any damage to the car that might suggest that it had been in an accident”; and “the deputies effected a traffic stop, whereupon they directed the defendant to exit the vehicle.”  Our review of the record indicates that Deputy Elrod responded “no” when asked whether he observed the defendant commit any traffic violations, and responded “I didn’t notice,” when asked whether he observed any evidence that would indicate that defendant’s vehicle had recently been involved in an accident.  Deputy Skaggs did not testify as to whether he did or did not witness any traffic violations.  As indicated, the defendant had already been stopped by Deputy Elrod when Deputy Skaggs arrived.  When asked whether there was anything on the defendant’s car that would suggest that it had recently been involved in an accident Deputy Skaggs responded “initially, I didn’t look at the vehicle.”  He then added, “after looking at the vehicle, ten minutes later, there wasn’t any significant damage.”

In response to the other assertion of error, we agree that the trial court’s findings could have made it clear that Deputy Elrod made the stop, and that Deputy Skaggs later had the Defendant exit his vehicle.  However, we do not find any error as the trial court simply combined the actions of both deputies together in one sentence without adequately distinguishing which act was performed by whom.

Furthermore, we find that the trial court’s findings of fact were supported by competent, substantial evidence, namely the deputies’ candid testimony and the inferences drawn therefrom.  Accordingly, the state’s characterization of the trial judge’s findings as being “clearly erroneous” is not supported by the record.

Second, the state argues that the trial court erred in determining that the citizen call to 911 from a resident of the Carrington Apartments was an anonymous call. Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action. Maynard v. State, 724 So.2d 315, 317 (Fla. 2d DCA 1999).  However, tips from anonymous informants must be confirmed and substantiated in some additional manner.  Id.  Courts look to the totality of the circumstances to determine whether a tipster qualifies as a citizen-informant. Id. The key factors that the courts consider are the informant’s veracity and reliability. Id.  No testimony was introduced to show that the tipster had prior contacts with the police to show a history of reliability.  Further, the informant here is not any more credible because the informant identified himself as a resident of Carrington Apartments.  The possibility remains that any person could have called the police and claimed to have witnessed what the informant alleged.  The informant’s motive was unknown until the police verified the informant’s identity, which the deputies failed to do.  We therefore, affirm the trial court’s characterization of the 911 caller as an “anonymous tipper.”

Appellee’s third argument is that even if the citizen call to 911 is determined to be anonymous, the BOLO information obtained from the caller was reliable and specific such that Deputy Elrod possessed the reasonable suspicion necessary to make an investigatory stop of the defendant’s vehicle.  In J.L. v. State, 727 So.2d 204, 207 (Fla. 1998) the court stated “an anonymous tip can provide the basis for an investigatory stop when the tip, as corroborated by independent police work, exhibits sufficient indicia of reliability to furnish police with a reasonable suspicion that the defendant is engaged in criminal activity,” citing Alabama v. White, 496 U.S. 325 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).   Likewise, the Second District Court of Appeal has routinely held that when an informant is anonymous, the information must be confirmed and substantiated in some additional manner.  Miller v. State, 613 So.2d 1351, 1353 (Fla. 2d DCA 1993); Woodson v. State, 747 So.2d 965, 966 (Fla.2d DCA 1999); Travers v. State, 739 So.2d 1262, 1264 (Fla. 2d DCA 1999).  In the instant case, this requirement could have been met if the deputies, in their own pre-stop investigation, observed a traffic violation or saw vehicle damage consistent with the anonymous tipster’s information.  However, neither deputy observed the defendant commit a traffic violation nor saw damage to the defendant’s vehicle consistent with a recent accident prior to the stop.  Accordingly, without corroboration by independent police work, the anonymous tip cannot provide the sole basis for the investigatory stop.  Since the stop, as well as the investigation conducted thereafter were illegal, the trial court correctly granted the defendant’s motion to suppress.  It is therefore

ORDERED AND ADJUDGED that the trial court’s granting of the defendant’s motion to suppress is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 9th day of November, 2000.

 

__________________________
CHARLES W. COPE
Circuit Judge
Primary Appellate Judge


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge

Copies furnished to:

The Honorable Robert J. Morris

Tamara Felton Dudley, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 33758

Ted Shannon, Esq.
600 Bypass Drive, Ste. 102
Clearwater, Florida 33764