County Criminal Court: CRIMINAL
LAW --- Search and Seizure – Stop – A citizen who provided his identity, and
whose apparent motivations were to protect life and report suspected illegal
behavior, and who alleged detailed dangerous illegal activity, was a citizen
informant. The reliability of the
allegations from the citizen informant, and the police officer’s corroboration
of some of the allegations were sufficient totality of circumstances to support
an investigatory stop. Trial court’s
order denying motion to suppress affirmed. Riviere v.
State, No. CRC 08-00024APANO (Fla. 6th Cir.App.Ct.October 21, 2008).
NOT FINAL UNTIL TIME
EXPIRES FOR REHEARING
AND, IF FILED,
IN THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR
Appeal No. CRC 08-00024APANO UCN522006CT145449XXXXXX
STATE OF FLORIDA
Opinion filed _____________________.
Appeal from an Order Denying
Motion to Suppress
entered by the Pinellas County
County Judge Susan P. Bedinghaus
Curtis M. Crider, Esquire
Attorney for Appellant
Brett J. Szematowicz, Esquire
Attorney for Appellee
ORDER AND OPINION
MATTER is before the Court on Appellant, Christopher Riviere’s appeal from a decision
of the Pinellas County Court
to deny Appellant’s motion to suppress. The Appellant pled no contest to
Driving Under the Influence but reserved his right to
appeal the denial of his motion to suppress. After reviewing the briefs and
record, this Court affirms the judgment.
Factual Background and
Trial Court Proceedings
On September 24, 2006, at
approximately 5:30 p.m., Robert Mahoney was traveling west across the Courtney
Campbell Causeway, as a passenger in a vehicle, when he observed another
vehicle, a dark blue Chevrolet, passing him at a high rate of speed. Mr. Mahoney saw the blue Chevrolet swerve to
the right lane nearly clipping the corner of another vehicle and then continue
to weave back and forth “the whole time”.
The driver of the Chevrolet was a young, white male who was wearing a
black cowboy hat and was later identified as the Appellant, Christopher Michael
Riviere. Mr. Mahoney was able to make
note of the Appellant’s license plate number and called 9-1-1 from his cell
phone because he thought the Appellant “was going to kill someone.”
Mr. Mahoney was connected with a
Clearwater Police dispatch operator and informed the operator that he was
following a dark blue Chevrolet pickup truck with a specific license plate
number on Courtney Campbell Causeway.
Mr. Mahoney further reported that the Chevrolet pickup truck was all
over the road and could not keep in a lane, that the driver was a young, Caucasian
male wearing a cowboy hat and that the driver was the only person in the
vehicle. Mr. Mahoney told police
dispatch that he was approaching the traffic signal at Damascus.
At that point, Mr. Mahoney’s cell phone began to cut out, but he told
police dispatch that he and the Appellant were continuing westbound on Gulf-to-Bay Boulevard. The police dispatch operator told Mr. Mahoney
not to put himself in any danger and to not to follow the vehicle unless he had
to. Mr. Mahoney’s phone call then cut
out and the connection with police dispatch was temporarily lost. The call was not deliberately
terminated. The police dispatch operator
then called Mr. Mahoney back at his phone number and informed him that the
Appellant was just pulled over and asked that he proceed to that location,
Hooter’s Restaurant on Gulf-to-Bay
Mr. Mahoney agreed and told dispatch his name and the make, model and
color of his own vehicle. Mr. Mahoney
informed police dispatch that he would arrive at the scene in two to three
minutes. Mr. Mahoney had just arrived at
his home when the police dispatch operator called him back. As soon as he received that call, he
immediately proceeded to Hooter’s and identified Appellant’s vehicle which was
parked in the Hooter’s parking lot.
Sergeant Steve Baginski of the Clearwater
Police Department was patrolling Gulf-to-Bay
Boulevard in Pinellas County
on September 24, 2006, at approximately 5:30 p.m. when he was advised to be on
the look out for a dark-colored, Chevrolet pickup, possibly dark green or dark
blue. An instruction to “be on the look out” is commonly referred to as a BOLO. Within a few minutes of receiving these
instructions, Sergeant Baginski observed a dark blue, Chevrolet pickup truck
turn North onto Hampton Street from Gulf-to-Bay Boulevard. Sergeant Baginski lost sight of the vehicle
but assumed it went into the Hooters Restaurant parking lot. As Sergeant Baginski pulled into the parking
lot, he saw the same dark blue truck pulling into a parking space across the
heavily congested parking lot. By the
time Sergeant Baginski got over to the vehicle, the Appellant was in the
process of exiting the vehicle from the driver’s side and the Sergeant was able
to see that the Appellant was a white male wearing a cowboy hat, the license
plate number and color and make of vehicle were consistent with the
descriptions given by Mr. Mahoney.
Baginski testified that the Hooter’s Restaurant is less than two miles away
from the Courtney Campbell Causeway, specifically McMullen-Booth Road. He thought that based on the information that
the Clearwater Police Department received from Mr. Mahoney, that he had reason
to believe that a crime was being committed, had been committed, or was about
to be committed. After the Clearwater
Police Department conducted an investigation, the Appellant, Christopher
Michael Riviere, was arrested for Driving Under the
Appellant filed a motion to suppress asserting that there was no lawful basis
for the traffic stop. After an
evidentiary hearing, the trial court entered a detailed written order denying
the motion. The Appellant reserved the
right to appeal the denial of his motion to suppress.
Standard of Review
Our review of a trial court's ruling on a motion to suppress evidence
involves a mixed question of law and fact. We accord a presumption of
correctness with regard to the trial court's determination of facts where the
trial court's factual findings are supported by competent, substantial
evidence. However, we review the trial court's application of the law to those
facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657,
134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001); State v. Pruitt,
967So2d 1021 (Fla.
2nd DCA 2007).
Involved Points of Law
1. Stops Pursuant to
a BOLO. Several factors are relevant
in assessing the legitimacy of a vehicle stop pursuant to a directive that
officers “be on the look out”, a (BOLO): (1) the length of time and distance
from the offense; (2) route of flight; (3) specificity of the description of
the vehicle and its occupants; and (4) the source of the BOLO information. Hunter v. State, 660 So2d
244, 249 (Fla.
Investigatory Stops. To justify an investigatory stop, the officer
must have a reasonable suspicion that the person detained committed, is
committing, or is about to commit a crime. § 901.151(2) Fla. Stat. (2006); Popple v. State, 626 So2d 185 (Fla.
1993); Dept. of Highway Safety &
Motor Vehicles v. DeShong, 603 So2d 1349 (2nd DCA Fla. 1992); Randall v. State, 600 So2d 553 (Fla. 2nd
DCA 1992). A reasonable suspicion is
"a suspicion which has some factual foundation in the circumstances
observed by the officer, when those circumstances are interpreted in the light
of the officer's knowledge." McMaster v. State, 780 So2d 1026 (5th DCA Fla. 2001). While
"reasonable suspicion" is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop. The officer must be able to articulate more
than an "inchoate and unparticularized suspicion or 'hunch' " of
criminal activity. Illinois v. Wardlow, 528 U.S.
119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). "Mere" or "bare"
suspicion, on the other hand, cannot support detention. State v. Stevens, 354 So2d 1244 (4th DCA Fla.1978); Coleman v. State, 333 So.2d 503 (Fla.
4th DCA 1976). Mere suspicion is
no better than random selection, sheer guesswork, or hunch, and has no
objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968), and Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971). The court determines the stop's legitimacy by
considering the totality of the circumstances surrounding the stop. McMaster,
780 So.2d at 1029.
Citizen Informants Verses Anonymous
Tipsters. If the law
enforcement officer's information is not personally observed, but received from
an informant, the informant's veracity, reliability, and basis of knowledge are
critical in establishing the reasonable suspicion required for a stop.
State and federal case law establishes that the reliability
of a tip which alleges illegal activity varies based upon whether the tip is
truly anonymous, such as an anonymous telephone call, or whether it is offered
by a “citizen informant” who approaches the police in person to report criminal
activity. A tip from a citizen informant falls at a higher end of the
reliability scale. See State v. Maynard, 783 So.2d 226, 228 (Fla.2001). This
hierarchy has been described as based on various factors. First, a citizen
informant may be motivated not by pecuniary gain, but by the desire to further
justice. See id. at 230. Second, unlike an anonymous tipster, a witness who
directly approaches a police officer may be held accountable for false
statements. See United
States v. Christmas, 222 F.3d
141, 144 (4th Cir.2000) (citing Wardlow). Third, a face-to-face
tip may be viewed as more reliable because the officers who receive the tip
have the opportunity to observe the demeanor and evaluate the credibility of
the person offering the information. See United States v. Heard,
367 F.3d 1275, 1279 (11th Cir.2004). Fourth, a
witness who approaches the police in person may subject himself or herself to
potential reprisal from the defendant, thereby rendering the tip more reliable
than an anonymous tip. See Christmas, 222
F.3d at 144.
Baptiste v. State, ---
So.2d ----, 2008 WL 4240489; 33 Fla. L. Weekly
2008). An informant’s actual name need
not be known so long as that person’s identity is readily discoverable. State v. Evans, 692 So2d 216, 219 (Fla. 4th DCA 1997).
In contrast to a “citizen informant”, a truly anonymous tip
has been consistently held to fall on the low end of the reliability scale,
primarily because the veracity and reliability of the tipster is unknown. Id.; see
also Florida v. J.L., 529 U.S. 266, 270 (2000); State v. Maynard, 783
So.2d 226, 229 (Fla.
2001). Thus, the United States Supreme Court has held that for an anonymous tip
to provide a reasonable basis for a Terry stop, that is an investigatory
detention, the tip must contain specific details which are then corroborated by independent police
investigation. See J.L., 529 U.S.
at 270-71; see also Maynard, 783 So.2d at 229 and Rinehart v. State, 778 So2d 331 (Fla. 2nd DCA 2000).
The Present Case
the present case, there was no traffic stop.
The Appellant had parked and exited his vehicle prior to any contact or
involvement with the police. Moreover,
the evidence presented at hearing does not establish that any stop
occurred. That testimony simply did not
address what happened when Sergeant Baginski first spoke with the Appellant,
Mr. Riviere, for a couple of minutes prior to the arrival of Robert Mahoney at
the Hooters parking lot. It may be the
situation was nothing more than a consensual encounter. However for the purpose of the addressing the
motion to suppress it will be assumed that there was an investigatory stop.
The facts presented at the hearing clearly establish a
legitimate basis for stopping the Appellant. First, within
a few minutes of receiving the BOLO, Sergeant Baginski observed Appellant’s Chevrolet
pickup truck less than two miles from the Courtney Campbell Causeway. The truck was proceeding directly from the
causeway on Gulf-to-Bay Boulevard. The description provided in the BOLO was very
specific and the Appellant and his truck matched it completely. The identity of Robert Mahoney, the citizen
who provided the information in the BOLO, was readily discoverable. He was identified and complied with a police
request to come immediately to the scene.
Mr. Mahoney was a “citizen informant” who by
happenstance found himself in the position of a witness to dangerous criminal
conduct and called the police as a matter of civic duty. His motivation was purely a concern that Appellant
“was going to kill someone”. The trial court’s finding that Mr. Mahoney was
a “citizen informant” was supported by competent, substantial evidence. Furthermore, all of the trial court's factual
findings are supported by competent, substantial evidence.
the totality of the circumstances, this court concludes that the order
of the trial court denying Appellant’s Motion to Suppress should be affirmed.
IT IS THEREFORE ORDERED that the order
of the trial court denying Appellant’s Motion to Suppress is affirmed.
ORDERED at Clearwater, Florida
this ___ day of October, 2008.
Michael F. Andrews Circuit Court Judge
Raymond O. Gross
Circuit Court Judge
R. Timothy Peters
Circuit Court Judge
cc: Honorable Susan
the State Attorney