County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop not justified where police failed to first corroborate information in anonymous caller’s message prior to making stop. Order granting motion to suppress affirmed. State v. Goepfert, No. CRC 07-1 APANO (Fla. 6th Cir.App.Ct. January 10, 2008).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

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 07-1 APANO

                                                                        UCN522007AP000001XXXCR

 

THOMAS GOEPFERT

            Appellee.

___________________________/

 

Opinion filed ________________.

 

Appeal from a decision of the

Pinellas County Court

County Court Judge John Carassas

 

C. Marie King, Esquire

Assistant State Attorney

 

Charles E. Lykes, Jr,, Esquire

Attorney for appellee

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court granting the defendant’s motion to suppress. A trial court’s determination of reasonable suspicion to make a stop is subject to de novo review.

DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997). After reviewing the briefs and record, this Court affirms the decision of the trial court.

            Two deputies received a BOLO (”be on the lookout”) for a particular car that was allegedly “all over the road” and at one point had struck a bridge. One of the deputies saw the car, followed it briefly, watched as it parked, and then made a stop. During the time that the deputy followed the defendant’s car, he did not see the defendant commit any traffic violations or see any indication the defendant might be impaired. The second deputy arrived on the scene and began a DUI investigation that ultimately led to the defendant being arrested for DUI.

            After the investigation, one of the deputies attempted to contact the person who had made the call to law enforcement that initiated the BOLO. When the deputy called the number left by the caller, he received a “no longer in service” message. The deputy tried a second time, but with the same result. The caller was an anonymous tipster because he or she had left no other information that would make the caller identifiable to law enforcement ---- no name, address, valid phone number, date of birth, etc.

            The cases are legion that if a stop is made based upon an anonymous source, then the police must corroborate the information prior to making the stop. In other words, the police must observe some independent suspicious activity before they may make a valid stop. See e.g., State v. Maynard, 783 So.2d 226 (Fla.2001); J.L. v. State, 727 So.2d 204 (Fla. 1998); State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997).

            In the case at bar, the State argues that there was corroborating evidence. One of the deputies testified that there were scratches and dents all over the car. This testimony, the State argues, is sufficient to corroborate the caller’s tip that the defendant had struck a bridge. This Court does not agree. The scratches and dents in the defendant’s car were on all sides. There was no testimony from the deputies that the scratches and dents appeared fresh.

            The State also claims that the testimony from one deputy that the defendant stumbled and had difficulty getting out of his car corroborates the tipster’s information. A review of the trial court’s written order and the transcript of the hearing reveals that the trial court appeared not to have believed this testimony. The trial court noted that the deputy admitted that this information was not in the written report. The first deputy did not tell the other deputy he saw the defendant stumble or have difficulty getting out of his car. In fact, the other deputy testified that he did not see the defendant stumble or have difficulty getting out of his car --- even though he was also on the scene before the defendant exited his car. The trial court did not take the defendant’s alleged stumbling into consideration. Obviously, the trial court did not find the testimony credible. The trial court is in the best position to make this determination, and this appellate court is not free to substitute its judgment for that of the trial court on this credibility issue. See Hemingway v. State, 762 So.2d 957 (Fla. 4th DCA 2000).

            Since law enforcement did not see any independent suspicious activity prior to making the stop, the trial court correctly ruled the stop was invalid. Accordingly, the defendant’s motion to suppress was properly granted.   

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is affirmed.

            ORDERED at Clearwater, Florida this _____ day of December, 2007.

 

 

______________________________            _______________________________

                  Linda R. Allan                                            R. Timothy Peters

               Circuit Court Judge                                        Circuit Court Judge                              

 

 

                                    ________________________________

                                                     John A. Schaefer

                                                  Circuit Court Judge

 

cc:        Charles E. Lykes, Jr., Esquire

             Office of the State Attorney

             Honorable John Carassas