NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

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 00-16887 CFANO

JOSEPH L. BROOKS,

            Appellee.

________________________________/

Opinion filed April 6, 2001.
Appeal From Order Granting Defendant’s Motion to Suppress
Pinellas County Court

County Judge Patrick K. Caddell

Donald Kilfin, Esq.
Assistant State Attorney
Attorney for Appellant

Amanda Eastabrook, Esq.
Assistant Public Defender
Attorney for Appellee

ORDER AND OPINION

THIS MATTER is before the Court on the State’s appeal from the trial court’s Order Granting Defendant’s Motion to Suppress.  After reviewing the briefs and record, this Court reverses the trial court’s decision.

“Appellate review of a motion to suppress involves questions of both law and fact and appellate court must make a de novo review of the trial court's application of the law to the facts.”  Rosenquist v. State, 769 So.2d 1051, 1052 (Fla. 2d DCA 2000).  In this de novo review, this Court defers to the factual findings of the trial judge, but will consider whether as a matter of law those facts amounted to a reasonable suspicion to stop the defendant.

On March 20, 2000, Officer Clyde Thornton of the Tarpon Springs Police Department was training Officer Mathess on running vehicle tag checks to familiarize Mathess with the procedure.  In the process, Officer Thornton ran a random check of a 1994 Chevrolet pickup and discovered that the registered owner’s driver’s license had been suspended.  In addition, the officers received information regarding the gender and age of the registered owner.  With this information, the officers followed the vehicle for “a couple of minutes” then pulled up along side to observe the driver.  Officer Thornton testified that the description of the vehicle’s registered owner matched that of the person driving the vehicle. Based on this factual foundation of circumstances, and therefore, believing that the defendant, who was driving the vehicle, was the owner and was committing a crime, the officers initiated a traffic stop of the defendant for driving with a suspended license. 

Defendant filed a Motion to Suppress arguing that the officers did not have probable cause to stop his vehicle.  Based on the testimony given and the law argued at the hearing, the trial court granted defendant’s motion.

The State raises two issues on appeal.  First, the State argues that the trial court erred in its determination that Officer Thornton did not have a legitimate, objective basis to stop the defendant for driving with a suspended license when Officer Thornton testified that the age and gender description he received from a random tag check matched the age and gender of the driver of the vehicle.   A well-founded suspicion of criminal activity is necessary to justify an investigatory stop.  Berard v. State, 731 So.2d 768 (Fla. 2d DCA 1999); White v. State, 737 So.2d 1117 (Fla. 2d DCA 1999). Furthermore, in Smith v. State, 574 So.2d 300, 301 (Fla. 5th DCA 1991), which is directly on point with this case, the court held that “an officer’s investigatory detention of a vehicle’s driver is supported by a well founded suspicion of unlawful activity when the officer first determines that the vehicle’s registered owner does not possess a valid driver’s license.”

In the case at bar, Officer Thornton had determined that the vehicle’s registered owner did not possess a valid driver’s license.  Instead of immediately initiating a traffic stop, he continued to follow the vehicle then drove up along side to confirm that the description of the vehicle’s registered owner was consistent with that of the driver.  By pulling up along side the vehicle, the officer was able to see the person driving and determined that the person matched the gender and age description of the registered owner.  Officer Thornton, therefore, went beyond the standard articulated in Smith by not only verifying that the vehicle’s registered owner did not possess a valid driver’s license, but by also making the effort to determine whether the owner’s physical description was consistent with the driver’s.  We, therefore, agree that the trial court erred in finding that Officer Thornton did not have a well-founded suspicion of criminal activity to stop the defendant.  

The second issue raised by the State is that the trial court erred in applying State v. Perkins, 760 So.2d 85 (Fla. 2000), because Perkins is factually inconsistent with the case at bar and addresses an inapplicable legal issue.  We also agree on this point.  The issue in Perkins was whether a defendant’s identity is properly suppressible where the officer lacks reasonable suspicion to conduct an investigatory stop.  The issue in this case is whether Officer Thornton had reasonable suspicion to conduct an investigatory stop.  In Perkins, the stop was already deemed unlawful.  In this case, we find that Officer Thornton lawfully initiated an investigatory stop.  Perkins, therefore, is inapplicable.

Based on the forgoing, it is

ORDERED AND ADJUDGED that the trial court’s Order Granting Defendant’s Motion to Suppress is reversed. This cause is remanded for further proceedings consistent with this opinion.

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 6th day of April, 2001.

                                                                       

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge

                                                                       

___________________________
NANCY MOATE LEY
Circuit Judge

                                                                       

___________________________
R. TIMOTHY PETERS
Circuit Judge

 

Copies furnished to:

The Honorable Patrick K. Caddell

Donald Kilfin, Esq.
Assistant State Attorney

Amanda Estabrook, Esq.
Assistant Public Defender