COUNTY CRIMINAL COURT: CRIMINAL LAW Ė Search and Seizure Ė Stop Ė

Defendantís act of driving slowly in area where police were conducting search for fugitive was insufficient to justify a stop. Order granting defendantís motion to suppress affirmed. State v. Quinn, No. CRC 05-54 APANO, (Fla. 6th Cir.App.Ct. April 17, 2006).

 

 

NOT FINAL UNTIL TIME FOR REHEARING EXPIRES

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

††††††††††† Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-54 APANO

†††† UCN522005AP000054XXXXCR

 

LINDA QUINN

 

††††††††††† Appellee.

________________________________/

 

 

Opinion filed ____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge William Overton

 

Hutch Pinder, Esq.

Assistant State Attorney

 

Michael Moore, Esq.

Assistant Public Defender

 

ORDER AND OPINION

 

††††††††††† (J. Morris)

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order entered by the Pinellas County Court granting the defendantís motion to suppress evidence. After reviewing the briefs and record, this Court affirms the decision of the trial court.

††††††††††† At approximately 1:30 in the morning, the police were investigating the theft of an automobile. The suspect had abandoned the automobile and was fleeing on foot. One deputy noticed the defendant driving slowly in the area; it appeared to the deputy that the defendant was driving back and forth, looking for something. Suspecting that the defendant was in the area to assist the fleeing suspect, the deputy radioed for a fellow deputy to stop the defendant. When the fellow deputy stopped the defendant, it was discovered that the defendant appeared to be DUI. The police conducted an investigation, and the defendant was ultimately arrested for DUI. The trial court granted the defendantís motion to suppress, and the State is appealing that decision.

††††††††††† The defendant contends that the police had no reason to stop her because they had no reasonable suspicion that she was doing anything wrong. The trial court agreed with her and granted her motion to suppress. This Court affirms the trial courtís decision.

††††††††††† Although the State does not contend that the defendant committed any offense --- traffic or otherwise --- it does contend that as part of their perimeter investigation the police were justified in stopping the defendant. The State contends that the police had set up a perimeter as part of their on-going operation to apprehend the suspect. In a perimeter or roadblock situation, officers may, under the appropriate circumstances, stop all of those going through the perimeter or roadblock without reasonable suspicion or probable cause. See McNamee v. State, 906 So.2d 1171 (Fla. 4th DCA 2005); Harbaugh v. State, 711 So.2d 77 (Fla. 4th DCA 1998).

A thorough review of the transcript, however, reveals that there is insufficient testimony to support the Stateís contention that the defendant was stopped as a result of a perimeter investigation or a roadblock. Although the arresting deputy testified that a perimeter investigation was being conducted, it was not established that the police had sealed off a particular area and were stopping every vehicle either coming out of the area or going into it. Neither was it established where the defendant was stopped in relation to the alleged perimeter investigation. It was not established if the defendant was entering the search area, leaving it, or just happened to be inside or near it at the time the investigation began. There is nothing in the record to contradict the appearance that the police only singled out the defendantís vehicle to stop. The police cannot randomly stop individuals within a particular area without reasonable suspicion or probable cause.

To justify a stop in the case at bar the police must establish that they had a reasonable suspicion that the defendant was engaged in criminal activity. There is nothing, however, in the record to support a claim that the police had a reasonable suspicion that the defendant was engaged in criminal activity. The testimony only showed that the defendant was driving slowly through the area, going back and forth, possibly looking for something or someone. This is innocent behavior.

The deputy testified that the only reason for the stop was that the suspect may have had a cell phone on him, had called the defendant, and the defendant was in the area to pick him up. It is, however, pure speculation that the defendant was summoned via a cell phone by the suspect to assist in his escape. There is no evidence that the suspect had a cell phone or called anyone --- let alone the defendant --- asking them to drive to the area to assist in his escape from the police. The police had no information whatsoever to link the defendant with the suspect. Reasonable suspicion must be based upon specific articulable facts --- not speculation or a mere hunch. Faunce v. State, 884 So.2d 504 (Fla. 1st DCA 2004). Therefore, the stop was improper, and the trial court was correct to grant the defendantís motion to suppress.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to suppress is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of April, 2006.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

†††††††††††††††††††††††††††††††††††

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

cc:††††††† State Attorney

 

††††††††††† Public Defender

 

††††††††††† Judge Overton