County Criminal Court:  CRIMINAL LAW – DUI – citizen informant – caller was citizen informant as his identity was readily ascertainable and the caller was not motivated by any reason other than concern for the safety of others – trial court’s order granting motion to suppress must be sustained as there was insufficient information given by the citizen informant and there were discrepancies in what information what actually provided in the citizen informant tip -- Order affirmed.  State v. Bennett, No. 02-19155 CFANO (Fla. 6th Cir. App. Ct. Jan. 23, 2004). 











vs.                                                                                            Appeal No. CRC 02-19155 CFANO






Opinion filed ________________________


Appeal from Order Granting

Motion to Suppress

Judge William H. Overton


Dwayne D. Perser, Esquire

Attorney for Appellant


Douglas Prior, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by State from the Order Granting Motion to Suppress, entered October 15, 2002. Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the Order as set forth below.

            At the hearing on the Motion to Suppress, Sergeant Dan Morton, of the Treasure Island Police Department, testified that he was on routine patrol when he received a BOLO (“be on the lookout”) from the Department’s dispatcher advising that a dark-colored Nissan SUV had left Gators on the Pass (Gators) and that the female driver was driving with a suspended license.  The dispatcher received the information via a phone call from a Gators’ security officer, Vincent Ogden.  Mr. Ogden testified that he called the police because he believed the Appellee, Vanessa M. Bennett, to be intoxicated.  Mr. Ogden testified that he did not call the police because he believed Ms. Bennett to be driving with a suspended license, information that Mr. Ogden had received two nights before from Officer Ashby, a Pinellas County Sheriff’s Officer who worked “off-duty detail” at Gators.  The only other information provided by Mr. Ogden to the dispatcher is that Ms. Bennett was driving a blue Jeep with a male passenger.  Shortly after receiving the dispatch, at approximately 1:41 a.m., Sergeant Morton conducted a traffic stop of Ms. Bennett just off Kingfish Drive, believing that the vehicle fit the dispatcher’s description.  After determining her identity, Ms. Bennett was arrested for driving while license suspended or revoked. [1]

            On appeal, the State argues that the trial court erred in granting Ms. Bennett’s Motion to Suppress since the traffic stop resulted from a tip provided by citizen informant so was sufficient by itself to justify the stop.  In reviewing a trial court’s ruling on a motion to suppress, the Court reiterates the appropriate standard of review, as recently set forth in Nicholas v. State, 857 So.2d 980, 981 (Fla. 4th DCA 2003):

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.  Pagan v. State, 830 So.2d 792 (Fla. 2002).  However, a defendant is entitled to a de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court’s finding of probable cause.  Donaldson v. State, 803 So.2d 856 (Fla. 4th DCA 2002).


Accordingly, the Court finds that the trial court’s ruling must be sustained.  As provided in the transcript, at the conclusion of the hearing, the trial court specifically found that Mr. Ogden was a “citizen informant” rather than an “anonymous informant.”  (emphasis added).  This finding is supported by the record and must be sustained.  See State v. Maynard, 783 So.2d 226 (Fla. 2001)(explaining that the identity of a “citizen informant” is readily ascertainable and the caller is not motivated by any reason other than concern for the safety of others);  see also State v. Manuel, 796 So.2d 602 (Fla. 4th DCA 2001)(same).

            Rather, it is clear from the transcript that the trial court was troubled by the discrepancies in the testimony of Mr. Ogden and Sergeant Morton and determined that there was insufficient information to establish reasonable suspicion to conduct the traffic stop.  As set forth above, Mr. Ogden testified that a female had left Gators in a blue Jeep in what he observed to be an intoxicated state.  No other identifying information was provided.  Sergeant Morton testified that the dispatcher issued a BOLO that a dark-colored Nissan SUV had left Gators with a female driver who was believed to be driving with a suspended license.  Indeed, the Court notes in reviewing the record, that the citation issued Ms. Bennett by Sergeant Morton describes stopping a blue 4-door Toyota SUV.

            Accordingly, given the insufficient information provided by Mr. Ogden, coupled with the discrepancies in what information was actually provided in the “citizen informant” tip, the Court finds that the trial court’s ruling must be sustained even though its reliance on Swanson v. State, 591 So.2d 1114 (Fla. 1st DCA 1992), and State v. Perkins, 760 So.2d 85 (Fla. 2000), is misplaced. [2]   In so affirming, the Court finds that Mr. Ogden did not describe the suspect, other than stating she that was “female,” did not provide a tag number, and was otherwise unavailable to identify the suspect prior to her detention. See e.g. Maynard, 783 So.2d at 228 (affirming defendant’s conviction when citizen informant, who was later determined to be the suspect’s mother, gave specific descriptions of her son, the car, including the make, model and color of the car, and the direction in which she believed her son was driving; see also Manuel, 796 So.2d at 603 (finding that the citizen informant personally identified the suspect prior to the suspect’s detention); Aguilar v. State, 700 So.2d 58 (Fla. 4th DCA 1997)(same); State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997)(same).

            Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Granting Motion to Suppress is affirmed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2004.




                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge






                                                                        IRENE SULLIVAN

                                                                        Circuit Judge





                                                                        DAVID A. DEMERS

                                                                        Circuit Judge


Copies furnished to:

Judge William H. Overton


Dwayne D. Perser, Esquire


Douglas Prior, Esquire

[1] Other facts surrounding the arrest, including that Ms. Bennett originally lied about her identity and that she passed the field sobriety tests requested of Sergeant Morton, are not relevant to the issues raised on appeal.

[2] The Swanson Court addressed when an investigatory stop is lawful based on an anonymous tipster.  The issue in Perkins was whether an officer’s post-stop observation of the defendant behind the wheel must be suppressed when an officer unlawfully stops a defendant (not premised on an citizen informant tip) solely to determine whether he or she is driving with a suspended license.