County Criminal Court:  CRIMINAL LAW – Traffic Stop –trial court did not error in granting motion to suppress- based on totality of circumstances, officer did not have requisite founded suspicion of criminal activity to conduct a stop – the officer testified that he had access to the owner's height and age; had seen defendant; and had determined the defendant to be a different person from the registered owner before effecting the stop.- it is never asserted nor is there any indication that the defendant committed any traffic offense or was otherwise committing or about to commit a crime.  -- Order affirmed.  State v. Phelps, Patel v. State, 05-2890CFAES     (Fla. 6rh Cir. App. Ct. October 25, 2005)







v.                                                                                 Appeal No: 05-2890CFAES

                                                                                    Lower No:  05-3939DASTWS






Appeal from verdict, judgment and sentence Pasco County Court


County Judge Debra Roberts


Michael J. Harris, Esq., ASA

Attorney for Appellant


Michael J. Raska, Esq.  APD

Attorney for Appellee




            This matter came before the court on the state's appeal from a  judgment and sentence entered by the Pasco County Court.  Appellant claims that the trial court committed reversible error by granting the defendant's motion to suppress. This court has jurisdiction. Fla. R. App. P. 9.030(c).   This Court, having reviewed the briefs, the record, and being otherwise fully advised, finds that the order of the trial court should be affirmed.

            In reviewing a trial court's ruling on a motion to suppress, the trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if it is not supported by competent, substantial evidence in the record.   State v. Marrero,  890 So.2d 1278 (Fla. 2d DCA  2005). 

            At the motion to suppress, Deputy Daniel Toner testified that while working, he observed defendant's vehicle at approximately 4:30 a.m. parked outside of the Exxon Gas Station. He testified that he observed the vehicle parked on the north side of the building.  At the time he saw the vehicle defendant was not in it. As the deputy pulled up he saw the license plate and did a routine check on it. The deputy testified that it was just a routine check, he "ran tags." He explained that "[w]hen you run the tag through the mobile data system on the computer, it advises whether it was a white or black, female or male, Hispanic. It advises you of the age and height of the registered owner."  The tag on the vehicle defendant was driving returned that the registered owner had a suspended driver's license. The vehicle was registered to two owners; Theresa Bradshaw, and her driver's license was valid, and Adam Wolford whose driver's license was suspended.  As the deputy drove through the parking lot he observed the defendant quickly enter the vehicle.  He stated "I got a quick look at his face." Toner testified that the defendant backed out and proceeded to drive northbound on Rowan Road . The first description didn't match, so he ran the second registered owner. He testified that that person turned out to be a different person than this defendant. He testified that after he verified that information he conducted a traffic stop on reasonable suspicion.  He stated "I approached the vehicle and asked for his driver's license and registration, and he informed that the vehicle was his girlfriend's.  I believe that he said Theresa.  I asked for his driver's license.  Off hand I don't recall if he had his driver's license with him or not.  When I inquired about the driver's license he said that his driver's license was suspended.  I always ask if it is valid or suspended, and he admitted it was suspended for possession of cocaine."

            On cross examination he was asked what the age and height was of the people involved in this case.  The deputy replied that "Mr. Wolford, looking at his driver's license, he is 5'4".  He was born in 1966, so he is about 49 years of age if my math is right. "  The defense attorney asked "[a]ll right.  And you also testified that you had a chance to see the defendant or an individual actually come out of the Exxon Gas Station and walk to his car; correct?"  Toner explained that he saw the defendant from the moment he stepped into the vehicle.  He said "[I] didn't watch him walk the entire time".  He was also asked if he was able to pull up a driver's license photo of the registered owner and Toner said that he could have but did not. When asked if he at anytime pulled up the driver's license of the registered owner, he replied "[e]arlier this morning prior to coming here." Toner testified that he performed the tag check before he saw someone enter the car. The deputy testified that he looked at defendant for less than a minute. The deputy testified that he searched the defendant's vehicle incident to arrest. Defense counsel asked the court to take judicial notice of the fact that Wolford, the registered owner is 39 years old, not 49 years old. Counsel then asked what the age of the individual he stopped was and the deputy testified that he was born in 1955 and admitted that he was " closer to 49 years old.  Toner testified that the individual he stopped was six foot and was white.  Toner admitted that in the photograph he pulled up for Wolford, in preparing for the hearing, had facial hair.

            On redirect, the state asked Toner how good his line of sight was of the defendant prior to pulling him over and Toner stated defendant was "within the ballpark of 20 feet from my vehicle."  Toner also testified that it was 4:30 a.m. and it was dark. The state asked "[w]ere you able to tell whether or not he was the same person from the physical description at that time?"  Toner responded "the previous description that I got, he matched the description.  I could not tell if he was exactly five foot or six foot, but he was in the ballpark."

            The trial court entered an Order Granting  Motion to Suppress.  The Court specifically found:

            On January 8, 2005, at approximately 4:30 a.m., Deputy Toner observed a parked vehicle at the Exxon Gas Station located at the corner of Massachusetts Avenue and Rowan Road.  The vehicle was parked on the north side of the building.  The Defendant was not in the vehicle initially.  The officer ran the tag and discovered the owner's license had been suspended.  The driver's license indicated the owner of the vehicle was 5'4" tall and was 39 years old.  The officer observed the Defendant, who is 6' tall, and 49 years old, enter the vehicle and drive away.  There is no indication that the Defendant committed any traffic offense or was otherwise committing or about to commit a crime.

            The State, citing Smith v. State, 574 So. 2d 300 (Fla. 5th DCA 1991), argues the officer could stop and question the driver under the circumstance that the owner's license had been suspended. The Court agrees that an officer can stop and question a person where circumstances reasonably indicate the person has committed or is about to commit a crime.  The Court finds that under the facts of this case the circumstances did not reasonably indicate the Defendant was the owner of the vehicle.  The license indicated the owner was considerably shorter and younger than the Defendant.


            The law is well settled that in determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop, "the totality of the circumstances-the whole picture-must be taken into account." Tamer v. State, 484 So.2d 583, 584 (Fla.1986) (quoting from United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)). A court's evaluation of reasonable suspicion is guided by common sense and ordinary human experience. Tamer at 584-585.; Chappell v. State  838 So.2d 645, 647 (Fla. 5th DCA 2003).  If there is a well-founded suspicion that the occupant of a vehicle  might be involved in criminal activity, the officer has a right to stop the vehicle for reasonable investigation.  State v. Payton,  344 So.2d 648 (Fla. 2d DCA 1977).  In this case, the officer testified that he had access to the owner's height and age; had seen defendant; and had determined the defendant to be a different person from the registered owner before effecting the stop.  Additionally, as argued by defendant/appellee, it is never asserted nor is there any indication that the defendant committed any traffic offense or was otherwise committing or about to commit a crime. It is therefore,

            ORDERED AND ADJUDGED that the order of the trial court is affirmed.


DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of October,  2005.



                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge





                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:

Honorable Debra Roberts

Michael J. Harris, Esq., ASA

Michael J. Raska, Esq., APD