v.                                          Appeal No. CRC 00-9619 CFANO



Opinion filed _______________.

Appeal from a decision of

the Pinellas County Court

County Judge Amy Williams

Kristan Smith, Esq.

Assistant State Attorney

Rebecca VanGaale, Esq.

Assistant Public Defender


††††† THIS MATTER is before the Court on the Stateís appeal from a decision of the Pinellas County Court. After reviewing the briefs and record, this Court reverses the trial courtís decision.

†††††† The State is appealing the trial courtís decision to grant the defendantís motion to suppress. The State contends that the trial judge should not have granted the motion to suppress because the stop of the defendant was lawful. The State claims the trial judge used a probable cause standard to determine the lawfulness of the stop when she should have used a reasonable suspicion standard. The standard of review of the trial courtís legal decision in this case is de novo. See Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).

†††††††† The facts are not in dispute. A police officer testified that he observed a woman whom he suspected was a prostitute. The location was a known prostitution area, and she was attempting to flag down cars. The officer testified that he had seen her in this same area in the past, and that her present behavior was consistent with that of the prostitutes in the area. While observing the actions of the woman, the officer noticed a van pull into the gas station parking lot and quickly pick up the woman. The officer suspected prostitution activity and radioed to other officers to follow the van.

†††††† The officer who was following the van testified that he knew the woman in the van was a prostitute who worked in the specific area. He also testified that he observed the womanís head go down. He continued to follow the van for four blocks and never observed the womanís head come up. At this point the officer radioed another police car to assist in stopping the van. While the van was stopped at a traffic light the officer got out of his car and ran up to the driverís side. Upon looking into the van, the police observed lewd and lascivious activity.

† ††††Even the defense counsel concedes on appeal that the trial court used the wrong legal standard to decide the case. That is, the trial court should not have ruled that the stop required probable cause. An officer is justified in making an investigatory stop of a vehicle if he has a well-founded suspicion that the driver has committed, is committing, or is about to commit a crime. Travers v. State, 739 So.2d 1262 (Fla. 2d DCA 1999). However, the defendant argues that although the correct legal standard to review this investigatory stop is reasonable suspicion, there was no reasonable suspicion present; therefore, the motion to suppress was properly granted. This Court disagrees.

†††††† The defendantís position is that the conduct in question was consistent with perfectly innocent behavior; therefore, the police should not have stopped him. Although the conduct may have been consistent with innocent behavior, that does not preclude the police from conducting an investigatory stop. The United States Supreme Court noted that officers could detain individuals who were acting in a suspicious, although not overtly criminal manner, to resolve the ambiguity. The Court stated that:

[i]n allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.

Illinois v. Wardlow, 528 U.S. 119 (2000). Furthermore, ďthe determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.Ē Id. at 125.

†††††† Based upon the testimony of the police, this Court holds that the officer was justified in suspecting that the defendant was involved in criminal activity, and, therefore, in investigating further. Given the totality of the circumstances, as interpreted using the officerís common sense and experience, it was reasonable for the officer to briefly detain the defendant to ascertain if the observed conduct was innocent or not. Once the stop was made, the officer observed sufficient improper behavior to justify the arrest. Indeed, no question of the propriety of the arrest itself is before this Court. The stop was proper, and the trial judge should have denied the motion to suppress.


†††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to suppress is reversed, and this matter is remanded to the trial court for action consistent with this opinion.

†††††† DONE AND ORDERED in Chambers at St.Petersburg, Pinellas County, Florida this _____ day of January, 2001.


David A. Demers

Circuit Judge, Appellate Division


cc:††† State Attorney

†††††††† Public Defender

†††††††† Judge Williams