NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 07-1 APANO
Opinion filed ________________.
Appeal from a decision of the
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.
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 (
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.
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 (
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.
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