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, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

CHRISTOPHER RIVIERE

 

            Appellant,

 

Appeal No. CRC 08-00024APANO UCN522006CT145449XXXXXX

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Denying

Motion to Suppress

entered by the Pinellas County Court

County Judge Susan P. Bedinghaus

 

Curtis M. Crider, Esquire

Attorney for Appellant

 

Brett J. Szematowicz, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS 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 Boulevard.  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.   

Sergeant 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 Influence.  

            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. 1995).

2. 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.

 

3. 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 S662 (Fla. 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

In 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.

Conclusion

Considering 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 P. Bedinghaus        

            Curtis M. Crider, Esquire

            Office of the State Attorney