County Criminal Court:  CRIMINAL LAWTraffic Stop – motion to suppress/totality of circumstances – trial judge did not err in denying motion to suppress – officer had reasonable or founded suspicion to initiate traffic stop based on prior observation of vehicle parked behind closed business at 2:30 a.m., and based on observation of several suspicious items in unoccupied vehicle, including black gloves, blue blocker sunglasses, a wig, and a screwdriver – Order affirmed.  Ludtka v. State, No. 02-16836 (Fla. 6th Cir. App. June 16, 2003).

 

 

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

APPELLATE DIVISION

 

GOLDIE LUDTKA,

                        Appellant,

 

vs.                                                                               APPEAL NO:  CRC02-16836CFANO

 

 

STATE OF FLORIDA,

                        Appellee.

                                                                      /

 

Opinion filed June _____, 2003.

 

Appeal from a decision of the

County Court for Pinellas County;

William H. Overton, Judge.

 

Walter L. Grantham, Jr., Esquire

Attorney for Appellant.

 

Susan M. Mitchell, Esquire

Assistant State Attorney.

 

ORDER AND OPINION

 

In the lower court, Ludtka pleaded no contest to driving under the influence (DUI) after the trial judge denied her dispositive motion to suppress.  She was sentenced to one year probation, assessed various fines and costs, and her driver’s license was suspended for six months.  Her single argument on appeal is that the trial judge erred in concluding that law enforcement had a well-founded suspicion of criminal activity to justify the traffic stop of her vehicle.  We affirm.

“A trial court’s ruling on a motion to suppress is presumed correct, and a reviewing court must interpret the evidence and reasonable inferences in the light most favorable to sustaining the trial court’s ruling.”  Grant v. State, 718 So. 2d 238, 239 (Fla. 2d DCA 1998) (citing Jenkins v. State, 685 So. 2d 918 (Fla. 1st DCA 1996)).  We must accord the lower court “a presumption of correctness ... with regard to the ... determination of historical facts.”  Connor v. State, 803 So. 2d 598, 608 (Fla. 2001).  However, “mixed questions of law and fact that ultimately determine constitutional issues” are subject to independent, de novo review by this court.  Id. 

In this case, the trial judge signed a written order denying the motion.  Therein, the trial judge found the following facts.  On September 16, 2001, at approximately 2:30 a.m., Deputy Pagels observed the defendant’s vehicle parked behind a closed business.  The vehicle was backed into the space.  Deputy Pagels observed several items in the unoccupied vehicle, to wit: a pair of knitted black gloves, a pair of blue blocker sunglasses, a wig, and a screwdriver.  Upon seeing the vehicle leave the area, Deputy Pagels initiated a traffic stop.  Based on these facts, the trial judge concluded that “given the totality of the circumstances, Deputy Pagels had a well-founded suspicion of criminal activity.”

The traffic stop of the vehicle in this case “must be predicated on a founded or reasonable suspicion which requires further investigation to determine whether its occupants have committed, are committing, or are about to commit a crime.”  McCloud v. State, 491 So. 2d 1164, 1166 (Fla. 2d DCA 1986); see also § 901.151, Florida Statues.  For purposes of deciding this issue, a court must consider all of the facts known by the officer up until the time he or she initiates the stop.  Id. (citing State v. Lewis, 406 So. 2d 79 (Fla. 2d DCA 1981)).  In State v. Kibbee, 513 So. 2d 256, 258 (Fla. 2d DCA 1987), the Second District Court of Appeal enunciated specific standards to be used in determining the existence of founded suspicion:

There will be borderline cases, of course, in which reasonable men may differ as to whether the circumstances witnessed by an officer could provide an objective foundation for his suspicion.  In such cases, the following factors should be evaluated to determine whether the circumstances reasonably suggested that the suspect was involved in criminal activity:  the time, the day of the week, the location, the suspect’s physical appearance, the suspect’s behavior, the appearance and manner of operation of any vehicle involved, and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge. 

 

            In Rinehart v. State, 778 So. 2d 331 (Fla. 2d DCA 2000), law enforcement stopped the defendant and his companion outside of an apartment building at 4:30 a.m. near their vehicle during Spring Break.  The purpose of the stop was to question the individuals; however, the stop soon progressed into an investigatory detention, after which law enforcement observed cocaine on the defendant’s person.  Id. at 332.  At the suppression hearing, law enforcement testified that he initially stopped and approached the individuals because he wanted to ascertain “what they were doing,” and he wanted them to fill out field interview cards so that he could contact them in case something unusual was discovered later.  Id.  at 333.  On appeal, the Second District reversed the trial court’s denial of the motion to suppress, finding that the defendant’s behavior did not evidence an imminent threat to either persons or property, and that law enforcement simply failed to articulate sufficient factors to justify a well-founded suspicion.  Id.

In Riley v. State, 737 So. 2d 1111 (Fla. 2d DCA 1999), law enforcement spotted a man driving his vehicle behind a shopping center at 3:00 a.m. in the morning.  Id. at 1112.  The man parked his car, exited his vehicle, and approached a trash dumpster.  Id.  Upon seeing the officer’s patrol car, the man turned around, went back to his vehicle, and drove away at a normal speed.  Id.  After then observing unusual movement from the occupants in the vehicle, law enforcement stopped the vehicle whereupon methamphetamine and drug paraphernalia were discovered.  Id.  On appeal, the Second District reversed the trial court’s denial of the motion to suppress, finding that “although the time of day might arouse a bare suspicion of criminal activity,” . . . “the officer articulated nothing else to suggest that Mr. Riley was involved in or about to become involved in criminal behavior.”  Id. at 1112-13.

            Here, Deputy Pagels articulated the reasons for her stop.  She testified that she had investigated over 100 burglaries; that she patrolled the area in question for approximately a year and a half; that it was shortly after 2:00 a.m. when she spotted Ludtka’s vehicle; that she was familiar with the businesses in the area and somewhat familiar with the vehicles owned by the employees of those businesses; that she had never previously seen Ludtka’s vehicle in that area; that upon approaching the unoccupied vehicle, she observed, in plain view, the black gloves, the large sunglasses, the wig, and the screwdriver, which in her experience were items commonly used to commit a burglary and mask one’s identity; that after processing the vehicle’s tag information, she discovered that it was an out-of-state vehicle; and that the vehicle was backed up against the rear of the business, which was closed at the time. 

Based on our review of the record, and based on the totality of the foregoing factors as known to Deputy Pagels at the time, we find no error in the trial judge’s determination that the cumulative impact of the factors listed above established a particularized and objective basis for Deputy Pagels to suspect that criminal activity was afoot.  Although the time of night is per se insufficient, Riley, 737 So. 2d at 1112, and although the presence of a vehicle parked next to a closed business in the middle of the night is, in and of itself, insufficient, Baker v. State, 754 So. 2d 154 (Fla. 5th DCA 2000), Deputy Pagels articulated several additional factors that were not present in either Rhinehart, Riley, or Baker.  Here, these factors established a well-founded suspicion that a crime had been, was, or was about to be committed.  Kibbee, 513 So. 2d at 256; see also Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999). 

            Affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of June, 2003.

 

____________________________________

                                                                                    JOHN A. SCHAEFER, Circuit Judge

 

 

 

____________________________________

                                                                                    W. DOUGLAS BAIRD, Circuit Judge

 

 

 

                                                                                    ____________________________________

                                                                                    NANCY MOATE LEY, Circuit Judge

 

cc:        Susan M. Mitchell, Esquire, Assistant State Attorney

            Staff Attorney/mec

 

            Walter L. Grantham, Jr., Esquire

            Belleair Oaks Professional Center

            2240 Belleair Road, Suite 135

            Clearwater, FL 33764