THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
DEBORA ANN DENNIS,
vs. Appeal No. CRC 01-04761 CFANO
STATE OF FLORIDA,
Appeal from denial of Motions to Suppress and Motions for Judgment of Acquittal
County Judge Amy M. Williams
Benjamin G. DeBerg,
Attorney for Appellant
Wendy L. Pepper, Esq.
Assistant State Attorney
Attorney for Appellee
THIS CAUSE is before this Court on the defendant’s appeal of the trial court’s denial of defendant’s oral motion to suppress and oral motion for judgment of acquittal rendered March 2, 2001. After reviewing the record and the briefs, this Court reverses the trial court’s decision denying the motion to suppress. Consequently, we do not need to reach the issues involving the motion for judgment of acquittal as our decision renders the issues involving that motion moot.
“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).
On November 19, 2000, between 5:30 a.m. and 6:00 a.m. an anonymous caller contacted the St. Petersburg police and reported that a white female had crashed the pickup truck she was driving into an unoccupied parked car at Central Avenue and twenty-second Street in St. Petersburg and had left the crash site on foot carrying a baby. The police then issued a BOLO (be-on-the-lookout) for a white female carrying a baby.
Shortly after the BOLO was issued, Officer Latishia Harrison, with the St. Petersburg Police Department, was sitting in her police cruiser when she was approached by a white male transient who related information to her about a female and a small child walking away from a car accident. Approximately thirty minutes after the anonymous call and following Officer Harrison’s encounter with the transient, Officer Harrison spotted the defendant walking “carrying a small, infant child or toddler child”, six blocks from the crash site. Officer Harrison immediately stopped the defendant and placed her in the back seat of her police cruiser. The defendant was subsequently charged with DUI, Leaving the Scene of an Accident, Careless Driving and Failure to Use a Child Restraint Device.
On March 2, 2001, a non-jury trial was held during which the defendant moved to suppress the stop arguing that it was invalid and further moved for judgment of acquittal arguing that the State could not prove corpus delecti. The court denied defendant’s motion to suppress stating that the anonymous tip verified by the finding of defendant six blocks from the accident, matching the description of a white female carrying a baby, supported the stop. The court also denied the motion for judgment of acquittal finding that the State had presented adequate circumstantial evidence to prove corpus delecti. The defendant was thereafter adjudicated guilty of DUI and Leaving the Scene of an Accident.
Defendant raises two issues on appeal. First, defendant argues that the stop based upon the BOLO was unjustified where information from an anonymous source described a white female carrying a baby; and the defendant who matched the description was found thirty minutes later, six blocks away and no independent acts were witnessed by law enforcement to give rise to a well-founded suspicion of criminal activity.
Our analysis of this issue begins with the well-settled rule of law that in order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity." Popple v. State, 626 So.2d 185, 186 (Fla. 1993); Berard v. State, 731 So.2d 768 (Fla. 2d DCA 1999); White v. State, 737 So.2d 1117 (Fla. 2d DCA 1999); Maynard v. State, 724 So.2d 315, 317 (Fla. 2d DCA 1999). To justify the stop, the police officer "must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably justify the stop." State v. Webb, 398 So.2d 820, 822 (Fla. 1981) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
In J.L. v. State, 727 So.2d 204, 207 (Fla. 1998) the court held “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 consistently 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 J.L, police received an anonymous tip stating that several young black males were standing at a specified bus stop during the daylight hours. The anonymous informant stated only that one of the individuals, the one wearing the "plaid-looking" shirt, was carrying a gun. Two police officers arrived at the specified bus stop approximately six minutes after receiving the anonymous tip and observed three black males, one of whom was wearing a plaid shirt. The three males were engaged in no suspicious or illegal conduct and the officers observed no additional suspicious circumstances. One of the officers immediately accosted J.L., who was wearing a plaid shirt, and ordered him to put his hands above his head. Then, without questioning or other introduction, the officer proceeded to frisk J.L. and seized a gun from J.L.'s left pocket.
In quashing the lower court’s decision denying the defendant’s motion to suppress, the Court stated that the presently-occurring innocent detail tip (several young black males standing at a specified bus stop during the daylight hours one of whom, wearing the "plaid-looking" shirt, was carrying a gun), was not corroborated through an independent investigation on the police’s part which established that the suspect was engaging in suspicious behavior; rather, "the officers' independent investigation added nothing to the reliability of the tip"--the officers merely verified that the defendant was in fact standing by the bus stop and wearing a plaid shirt, neither of which is suspicious.
Likewise, in this case, Officer Harrison merely observed the defendant walking 30 minutes after the BOLO and six blocks away from the scene of a crash carrying her child. Officer Harrison’s merely verified that the defendant was a white female walking carrying a baby. Her investigation added nothing to the reliability of the tip. Clearly, there is nothing suspicious about walking at 6 to 6:30 a.m. in an urban area carrying a baby to justify an investigatory stop.
In Taylor v. State, 695 So.2d 503 (Fla. 2d DCA 1997), which this Court feels is dispositive in this case, at approximately 10:30 p.m., Officer Santos responded to a burglary in progress. Upon arriving at the scene, a neighbor (Holman) told Officer Santos that he observed an unknown black male attempting to break into two vehicles in the carport across the street. Holman could not positively identify the suspect, but stated that the suspect left on a bicycle traveling in an unknown direction. Officer Forgues obtained latent fingerprints lifted from the vehicles.
Brandon Rafool, who was not present when the crimes occurred, drove up to the crime scene and informed the officers that he had just passed a black male on a bicycle one quarter mile away heading eastbound, away from the crime scene. Officer Santos radioed Rafool's information to other units in the area to be on the lookout (BOLO) for a black male on a bicycle. Shortly thereafter, Officers Rivera and Bissett stopped Taylor. Officer Santos took Rafool to identify Taylor. Rafool stated that Taylor was the same person he had observed earlier. Officers Santos and Bissett took Taylor's fingerprints at the scene and released him.
Taylor argued that his fingerprints were obtained after an improper stop, because the BOLO upon which the officers relied was too vague to warrant the stop. The BOLO described the suspect as a "black male on a bicycle, heading eastbound on Avenue L, S.E." The Court cited Hunter v. State, 660 So.2d 244 (Fla. 1995), cert. denied 516 U.S. 1128, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996), where the Supreme Court stated:
Several factors are relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO: (1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information. Id. at 249. After applying the factors to the facts of that case, the Court found that all four factors failed the legitimacy test for Taylor's stop.
In the case at bar, looking to the first factor, time and distance from the offense, the defendant was stopped thirty minutes after the BOLO and six blocks away from the crash site. This was not an immediate apprehension in the immediate vicinity.
Regarding the second factor, route of flight, the BOLO did not indicate the rout of flight. The BOLO only indicated that the suspect was on foot.
Regarding the third factor, specificity of the suspect's and vehicle's descriptions, the anonymous caller only stated that the person involved in the crash was a white female on foot carrying a baby. Therefore, the BOLO relayed only that information. The transient that approached Officer Harrison stated that the person involved in the crash was a white female on foot carrying a small child. The BOLO gave no other description that could have been used to distinguish the defendant from other white females walking carrying a baby or child.
Lastly, the fourth factor, the source of the BOLO information, is lacking because the source was a tipster whose identity the police failed to obtain for verification. Likewise, with the transient that approached, Officer Harrison failed to obtain his name or any other identifying information.
There are no specific and articulable facts in this case that reasonably justified the stop of the defendant. A review of the facts as they existed at the time the defendant was stopped indicates that Officers Harrison knew only that: (1) the defendant was a white female; (2) the defendant was on foot; and (3) the defendant was carrying a baby or small child. In light of these scant facts, this stop was not appropriate.
Although the defendant was a white female carrying a child on foot," that description could have fit many women. "A vague description simply will not justify a law enforcement officer in stopping every individual or vehicle which might possibly meet that description." Sumlin v. State, 433 So.2d 1303, 1304 (Fla. 2d DCA 1983).
Further, our opinion may have been different if Officer Harrison had conducted a consensual encounter rather than an investigatory stop. The consensual encounter does not require a reasonable or founded suspicion as no Fourth Amendment protection is implicated. See Popple, 626 So.2d at 187; see also State v. Starke, 574 So.2d 1214, 1215 (Fla. 2d DCA 1991). This record indicates only that the officer stopped the defendant and placed her in the back seat of her police cruiser. Therefore, the stop was more than a consensual encounter. Officer Harrison did not have the requisite founded suspicion that the defendant had committed a crime when they stopped her. To the contrary, the facts prove that the officer had nothing more than a bare suspicion that the defendant was the perpetrator. And "[a] 'mere' or 'bare' suspicion will not suffice." Popple at 186; Sumlin at 1304.
Finally, in Cunningham v. State, 591 So.2d 1058 (Fla. 2d DCA 1991), the Court stated “It is not sufficient merely to corroborate the anonymous information concerning the identity, dress, description, location or even future activity of the suspect who is the subject of the anonymous information. In addition to independent evidence verifying that type of information, there must also be independent evidence of criminal activity on the part of the suspect. Otherwise, any totally innocent person could be the object of an anonymous tip furnishing verifiable information about name, description, whereabouts and future activity. In this case, when Officer Harrison spotted the defendant there was no independent evidence of criminal activity other than the defendant matching the vague description given in the BOLO and by the anonymous tipster.
Any alleged evidence of defendant’s intoxication, or leaving the scene of an accident does not survive the motion to suppress because it was tainted by the initial improper stop of the defendant. Evidence obtained from a search must be suppressed if the initial stop or detention was illegal. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As indicated above, we do not need to address defendant’s second issue on appeal because of our reversal of the trial court’s denial of defendant’s motion to suppress. It is therefore
ORDERED AND ADJUDGED that the judgment adjudicating the defendant guilty of DUI and Leaving the Scene of an Accident are reversed and we remand this case to the trial court with directions that the defendant’s motion to suppress be granted.
DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 7th day of September, 2001.
NANCY MOATE LEY
Primary Appellate Judge
W. DOUGLAS BAIRD
R. TIMOTHY PETERS
Copies furnished to:
The Honorable Amy M. Williams
Benjamin G. DeBerg, Esq.
9075 Seminole Boulevard, Suite C
Seminole, Florida 33772
Wendy L. Pepper, Esq.
Assistant State Attorney
Senior Staff Attorney