County Criminal Court: CRIMINAL LAW – Traffic Stop –trial court erred in granting motion to suppress;  citizen informant provided officer with defendant’s name, type of vehicle, address  of where he worked and when he went to work; officer  confirmed that defendant’s license was suspended; officer observed the vehicle described at the time and place the caller told him defendant would be there- under the totality of the circumstances, the officer had reasonable suspicion that it was the defendant. Reversed.  State v. Clark,  055313CFAES (Fla. 6rh Cir. App. Ct. June 20, 2006)

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

STATE OF FLORIDA,

                        Appellant,

                                                                       

v.

 

SCOTT ALLEN CLARK,                               CASE NO: 055313CFAES

                        Appellee,                                  Lower No: 053955DASTWS

___________________________/

 

Appeal from Honorable Debra Roberts

 

Michael J. Harris, Esq., A.S.A.

Attorney for Appellant

 

Sonny Im, Esq.

Attorney for Appellee 

 

ORDER AND OPINION

 

On May 20, 2005, appellee, Scott Allen Clark, was charged by citation with Driving While License Suspended or Revoked.  The defendant filed a Motion to Suppress evidence and a hearing was held. The trial court granted appellee’s Motion to Suppress and the State appealed. This Court has jurisdiction.  Fla. R. App. P. 9.030 (c). We reverse the decision of the trial court.

Corporal Fortney testified that he had a "phone tip that the defendant was driving with no license."  He explained that the person wanted to remain anonymous but provided a name telephone number to him for verification.  He went on to explain what the person said about how they knew defendant was driving, stating "[t]hey advised--told me where he worked and what he drove and when he went to work and he had been driving quite a while with no license."  The caller told Fortney that defendant was driving a small black SUV.  Thereafter, Fortney ran a computer check and confirmed that defendant’s driver’s licenses was suspended and revoked.

            Fortney explained that he then drove by the business the caller told him about on two different occasions, (two different dates) and the third time he drove by is when he made the stop; when the defendant was going to work. He testified that it was the same business the caller told him; and it was the same vehicle the caller told him he would be driving.  He was then asked if he saw the defendant in the car driving at the time and he replied "I saw someone, a male, but I wouldn't have at that point knew positively whether it was him or not."  He testified that the reason for the stop was to find out if it was the defendant.       

            Fortney was asked if there was anything else done regarding contact with the person who called him, other than that one phone call he took and he stated that he had talked with the caller a couple of different times.  He stated that he was able to recognize the voice of the caller from previous conversations a few days earlier. The state asked '[a]nd as far as the call, were you able to verify from recognizing the voice whether or not this was the same person who he said he was" and Fortney replied "[y]es."  He also stated that he had never seen that person (the caller) but dealt with the caller at least three times over the course of few days regarding the same defendant. When asked if this caller ever provided unreliable information he said he did not and that all the information provided turned out to be correct.  He testified that he called the informant at the same phone number the informant provided.

            On cross examination, Fortney testified that the tipster was a female. He acknowledged that the caller told him that this gentleman (defendant) is DWLSR and uses the name Scott Clark.  The caller also provided addresses of the defendant and an address for where he worked. When Fortney disclosed the informant's name, Kim Glass, Defense Counsel asked ""…[a]re you aware that that's his ex-partner's wife?" and Fortney replied, "[n]o I wasn't." He also asked the officer if he was aware that she had a personal vendetta and he replied that he did not know that.  Fortney testified that defendant did not commit any civil infractions in front of him and he pulled him over because he had reasonable suspicion that he was driving.  He testified that he did not run the tag at the time. He acknowledged that at the time he initiated the stop, he did not know who was actually driving the vehicle but he had suspicion that it was Scott.

            The court granted defendant's motion to suppress, finding as follows:

           

1) On May 20, 2005, a Pasco County Sheriff Deputy Fortney conducted a traffic          stop of Mr. Clark's vehicle for DWLSR pursuant to a tip from a citizen.

            2) Prior to the stop, Mr. Clark had not committed any traffic violations to justify             the detention.

            3) At the time of the traffic stop, the officer did not know who was driving the    vehicle nor make any reasonable effort to identify the driver prior to the stop.

 

When reviewing a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690 (1996).  The issue here is whether the tip provided the reasonable suspicion needed to make the initial stop. We conclude that it did.

Whether there is reasonable suspicion for a stop depends on the totality of the circumstances.  L.J.S. v. State, 905 So. 2d 222 (Fla. 2d DCA 2005).  The Fifth District Court of Appeal, in  State v. Lopez,  923 So.2d 584 (Fla. 5th DCA  2006), decided a case with similar facts to the case at bar. In Lopez, Probation Officer Susan Knowles called the police department, stating that she thought Lopez was driving in violation of his community control restrictions. She spoke with Officer Pleasants and told him Lopez was on community control for driving on a suspended or revoked license as a habitual offender. She gave him Lopez's address and told him that Lopez was a painter scheduled to leave for work early each day except Sunday. Pleasants checked computer records and learned that Lopez's license was still suspended. He also obtained a photograph of Lopez. Pleasants made additional observations before stopping Lopez. He drove by the house and observed a gray jeep with a work ladder parked in front of the house. The jeep was registered to a woman who lived at Lopez's address. During his surveillance, Pleasants observed the jeep leave the house and stop at an intersection with its left signal on. Pleasants could not identify the driver, but observed that the jeep did not turn left as signaled despite several opportunities while Pleasants was parked directly across from it. After Pleasants determined that a man was driving the jeep and began to turn around, the jeep abruptly turned right, went down the next street, and accelerated back toward Lopez's home before it was stopped. The Fifth District found that the totality of circumstances combined to provide Pleasants with a reasonable suspicion that Lopez was driving the jeep and, in so doing, committing a crime.

Similarly, in this case, the officer received a tip from a citizen informant. The informant provided Fortney with defendant’s name, type of vehicle, address  of where he worked and when he went to work. The officer confirmed that defendant’s license was suspended.   The officer observed the vehicle described at the time and place the caller told him defendant would be there.  Thus, the fact that he could not identify the defendant behind the wheel at the time is not dispositive  since under the totality of the circumstances, the officer had reasonable suspicion that it was the defendant. The test is not whether the officer had probable cause to stop the vehicle.  Rather, it is whether he had enough objective data to form a well-founded, articulable suspicion that defendant  was driving the vehicle, and in doing so, committing a crime.  Lopez.  See also Smith v. State, 574 So. 2d 300 (Fla. 5th DCA 1991) holding that “an officer’s investigatory detention of a vehicle’s driver is supported by a well founded suspicion of unlawful activity when the officer first determines that the vehicle’s registered owner does not posses a valid driver’s license. The detention is neither arbitrary nor directed to any particular individual demonstrating an intention to harass that person. 

 

IT IS THEREFORE ORDERED that the judgment and sentence be REVERSED. 

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of June, 2006.  

 

                                                                                    ________________________

                                                                                     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., A.S.A.

Sonny Im, Esq.