County Criminal Court: CRIMINAL LAW – Traffic stop – Evidence – alleged traffic citations used to form the reasonable suspicion necessary to perform a lawful investigatory stop of an auto, must be objectively reasonable.  A traffic officer’s mistake of law as to what constitutes a traffic violation, no matter how reasonable, does not provide objectively reasonable grounds for reasonable suspicion.  Other facts, which were objectively reasonable, and that could have formed the reasonable suspicion for the investigatory stop, were not presented and argued to the trial court, and thus were not preserved for appeal.  Trial court properly granted motion to suppress evidence gained from the unlawful stop.  Appeal denied, motion affirmed, with dissenting opinion.  State v. Ryan E. Clancey, Appeal No. 08-00087APANO (Fla.6th Cir.App.Ct. August 26, 2009)

 

 

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,

 

Appeal No. CRC 08-00087APANO UCN: 522008CT051488XXXXXX

 

RYAN E. CLANCEY

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Granting

Motion to Suppress

entered by the Pinellas County Court

County Judge John D. Carballo

 

Jennifer Menendez-Kotch, Esquire

Office of the State Attorney

Attorney for Appellant

 

Ricardo Rivera, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an order of the Pinellas County Court granting Appellee’s Motion to Suppress.  After reviewing the briefs and record, this Court affirms order of the trial court.

Factual Background and Trial Court Proceedings

            On April 12, 2008 at approximately 9:28 p.m., a person called the Indian Shores Police Department to report a vehicle being driven in a reckless manner, weaving in and out of traffic and speeding.  The caller did not provide their name but did give a telephone number that was later determined to be non-working.  The vehicle was described as a green or teal Jeep SUV, with a ladder rack and ladder on top, with a specific license plate number.  The caller reported following the vehicle until it turned west on 178th Avenue.  The Indian Shores Police Department issued a BOLO or “be on the lookout” for the vehicle.  Officer John Wiseman was approximately two blocks from the last reported location of the vehicle and responded.  He promptly located the vehicle stopped “in the middle of the road”, “facing west on 178th Avenue”, “just shy of Lee Avenue”.  178th Avenue West is a two lane east-west road with no center dividing line.   It extends from Gulf Boulevard on the east to Lee Avenue on the west.   Officer Wiseman clarified that the Jeep was stopped “mostly in his lane of travel” and “it wasn’t obstructing traffic.”  Other traffic could get around the Jeep. 

            Officer Wiseman stopped his police cruiser behind the Jeep and identified it as the vehicle described in the BOLO.  The Jeep’s engine was running and the headlights and brake lights were on.  The officer waited behind the vehicle for about a minute and a half and testified he observed the vehicle had no bumper as required by statute and was missing the driver’s side exterior door mirror.  The Jeep had a homemade wooden bumper.  The officer later learned the vehicle also had a crack in the windshield.  The vehicle still didn’t move.  Officer Wiseman activated his overhead emergency lights and initiated a traffic stop based on the Jeep’s lack of a proper bumper and driver’s side exterior door mirror.

            The Appellee, Ryan Clancey, was the driver of the Jeep.  As a result of the traffic stop, he was arrested for driving under the influence, possession of marijuana, possession of paraphernalia, and driving while license is suspended or revoked.  Mr. Clancey filed a motion to suppress asserting that there was no lawful basis for an investigatory stop.  After an evidentiary hearing, the trial court entered a detailed written order granting the motion.[1]  The trial court found that the person who called the police was an anonymous tipster.  Consequently corroboration of the traffic violations described in the telephone call was required and there was none.  Moreover the fact that the Jeep had a wooden bumper and no exterior side mirror did not provide a lawful basis for a traffic stop.  The trial court further found there was no other traffic and the Appellee’s vehicle did not impede anyone’s travel other than the officer who was there to investigate.  The trial court concluded that Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004) was controlling authority and there was “an insufficient basis to warrant detention of the defendant for stopping or standing in the roadway.”  The State appeals the order granting the 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.  All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court's ruling.  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); Newkirk v. State, 964 So2d 861, 863 (Fla. 2nd DCA 2007).

Involved Points of Law

1. Traffic 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).  An examination of the validity of an investigatory stop under the Fourth Amendment of the United States Constitution requires courts to determine whether the stop was reasonable.  Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).  In assessing the reasonableness of the stop, the court must look at the facts available to the officer at the moment of the stop and determine whether they warrant a person of reasonable caution in the belief that the action taken was appropriate. Id. at 21-22, 88 S.Ct. 1868.  Further, in determining whether an officer acted reasonably, “due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27, 88 S.Ct. 1868; Ellis v. State, 935 So.2d 29, 32 (Fla. 2nd DCA 2006). 

The constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop, but rather it depends on the validity of the basis asserted by the officers involved in the stop.  Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Holland v. State, 696 So2d 757 (Fla. 1997).  The correct test to be applied is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.  Dobrin v. Department of Highway Safety & Motor Vehicles, 874 So2d 1171 (Fla. 2004).  In Whren, the United States Supreme Court held that the temporary detention of a motorist is reasonable when an officer has probable cause to believe that the motorist has committed a traffic infraction.  In contrast, an officer's mistake of law as to what constitutes a traffic violation, no matter how reasonable, cannot provide objectively reasonable grounds for reasonable suspicion.  See Hilton v. State, 961 So.2d 284, 294 (Fla. 2007).  In order for a traffic stop to be proper, the police must have a reasonable suspicion of criminal activity, or probable cause to believe a traffic infraction has been committed. Jones v. State, 842 So2d 889, 891 (Fla. 2nd DCA 2003).

2. Anonymous Tips.  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.  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.  Baptiste v. State, 995 So.2d 285, 291 (Fla. 2008).  On the other hand, 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.   See Florida v. J.L., 529 U.S. 266, 270 (2000); State v. Maynard, 783 So.2d 226, 229 (Fla. 2001). Thus for an anonymous tip to provide a reasonable basis for a Terry stop, 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.  An anonymous tip must be “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.J.L., 529 U.S. at 272. Even if the tip describes illegal behavior, a Terry stop is not justified unless the reliability of the tip has been established. See id. at 273 n.*.  If the tip is corroborated by independent police observation of otherwise seemingly innocent acts, then it may exhibit sufficient indicia of reliability depending upon the totality of the circumstances. Id. at 330, 110 S.Ct. 2412; see also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

3. The Asserted Traffic Infractions.  Florida Statute § 316.251 does not require motor vehicle bumpers to be fabricated out of any particular material.  In the present case the trial court found that the Jeep was equipped with rear bumper made of wood that satisfied the statutory requirement. 

Florida Statute § 316.294 requires motor vehicles to have a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle.  It does not specifically require a driver’s side exterior door mirror.  In the present case the trial court found no testimony that the Jeep lacked the required rear view mirror.

Florida Statute § 316.610, in pertinent part, prohibits any person to drive a vehicle which is in such unsafe condition as to endanger any person or property.  In the present case the traffic stop was not initiated because the vehicle was in unsafe condition.

            4. The Omitted Traffic Infraction.  Florida Statute § 316.195, in pertinent part, requires “every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within 12 inches of the right-hand curb or edge of the roadway.”  In the present case this statute has never been mentioned or argued.

            Florida Statute § 316.071, in pertinent part, requires the driver of a vehicle that for any reason obstructs the regular flow of traffic, to move the vehicle so as not to obstruct the regular flow of traffic.  This specific statute was not mentioned in the trial court or in this appeal, however the issue of obstructing traffic was argued and addressed below.

            5.  Preserving Issue for Appeal.  In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved. Perez v. State, 919 So2d 347, 359 (Fla. 2005); Tillman v. State, 471 So.2d 32, 35 (Fla.,1985); Conner v. State, 987 So2d 130 (Fla. 2nd DCA 2008);  See § 924.051(3), Fla. Stat. (2003) (“A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court ....”) (emphasis added).

The Present Case

In the present case, the person who called the police was anonymous.  The tip provided an exact description of a vehicle which was confirmed.  However the asserted illegal conduct was not corroborated by any observations of the police.  Therefore the reliability of the tip was not established and it could not serve as the lawful basis of the traffic stop. 

            When Officer Wiseman located the vehicle it was stopped “in the middle of the road”, “facing west on 178th Avenue”, “just shy of Lee Avenue”.  178th Avenue West is a two lane east-west road with no center dividing line.   Officer Wiseman clarified that the Jeep was stopped “mostly in his lane of travel” and “it wasn’t obstructing traffic.”  There was no other traffic and the vehicle did not impede anyone’s travel other than the officer.  178th Avenue West ends at Lee Avenue and west bound traffic must turn right or left onto Lee Avenue.  Regardless, the mere potential to block or interfere with traffic is insufficient to justify a traffic stop.  L.J.S. v. State, 905 So.2d 222, 225 (Fla. 2nd DCA 2005); Koppelman, 876 So.2d at 622.  However the failure to stop or park with the right-hand wheels parallel to and within 12 inches of the right-hand curb or edge of the roadway, in violation of Florida Statute § 316.195, would have been sufficient to justify a traffic stop, but was never argued or mentioned to the trial court or in this appeal.  This Court will not base a reversal on a specific legal argument or ground that was never raised.  See Conner, 987 So.2d at 132.

Officer Wiseman’s activation of his overhead emergency lights initiated an investigatory stop. See Siplin v. State, 795 So.2d 1010, 1011 (Fla. 2nd DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999).  The Jeep’s wooden bumper and lack of a driver’s side exterior door mirror were not traffic infractions and did not provide a lawful basis to support the traffic stop.  The matters argued to the trial court and preserved for appeal provided no lawful basis for the traffic stop.

Conclusion

The factual findings of the trial court were supported by competent, substantial evidence. In construing the evidence and the reasonable inferences drawn from that evidence in a manner most favorable to upholding the trial court's ruling we conclude that the matters argued to the trial court and preserved for appeal provided no lawful basis for the traffic stop.  This Court will not base a reversal on a specific legal argument or ground that was never raised. The order of the trial court granting Appellee’s Motion to Suppress should be affirmed.

            IT IS THEREFORE ORDERED that the order of the trial court granting Appellee’s Motion to Suppress is affirmed. 

GROSS, Judge. Concurs

ANDREWS, Judge, Dissenting.

 

Respectfully, I dissent. 

“We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review the legal issues de novo.  It is a legal issue-the standard to be applied in determining the justification for the stop and search-that allows us to apply the de novo standard of review.” State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008).   In my view, the whole point of de novo review is for the appellate court to review a case and consider the sufficiency of the evidence in its entirety.  In Connor v. State, 803 So.2d 598, 608 (Fla. 2001)  the supreme court held “appellate courts should continue to accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” 

 

I.          Anonymous Tip/Corroboration

            In this cause the trial court finds that the unnamed unidentified person who alerts the police to the Appellee’s erratic driving to be an anonymous tipster.  I take no issue with this finding.  It is well settled that “[b]ecause an anonymous caller's basis of knowledge and veracity are typically unknown, these tips justify a stop only once they are sufficiently corroborated by police.” State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997).  See also, Wyche v. State, 987 So.2d 23 (Fla. 2008).  In his order analyzing the “several independent bases” the officer cites to justify the stop the trial court judge does not specifically state that there is no corroboration but does state that “the information supplied cannot justify the stop absent sufficient corroboration by Wiseman.”  The question of whether there was “sufficient corroboration” deserved further analysis. 

Blacks Law Dictionary 311 (5th Edition 1979) defines corroborate thusly: “To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence . . . to comport with some facts otherwise known or established.”  The American Heritage Dictionary 327 (2nd College Edition 2000) defines corroborate as: “To support or confirm by new evidence; attest the truth or accuracy of.”  In State v. Pryor, 427 So.2d 1057 (Fla. 4th DCA 1983) the Fourth District clarifies that corroboration does not necessarily mean observing the same or similar criminal conduct complained of by the anonymous caller. 

“[T]he term ‘corroboration’ is not necessarily tied to ‘incriminating details’ in these vehicular stop and frisk cases. ‘Corroboration’ may relate to verification of other information, including but not limited to subsequent identification on the part of the observing officer of the individual or vehicle freshly described by an unnamed citizen to the law enforcement agency… The point is that the officer’s subsequent observations may, but need not be of incriminating details.”

 

Id. at 1059 (emphasis added) (citations omitted).  In McKee v. State, 430 So.2d 983 (Fla. 3d DCA 1983) an officer received an anonymous tip relating to a burglary.  Two blocks from the address of the burglary the officer observed a person who fit the description of the suspect provided by the anonymous caller.  Id. at 984. The officer instructed the suspect to stop.  Id. After the suspect was charged he moved to suppress arguing that the anonymous tip lack sufficient reliability.  Rejecting the argument the Third District stated: “The reliability of a tip is indicated by the specificity of the information and its corroboration by prompt police action finding an individual in the area who fits the description in the BOLO.  Id. at 984-985 (emphasis added).      In State v. Hetland, 366 So.2d 831(Fla. 2d DCA 1979) officers received a detailed anonymous tip describing the defendant, his clothing, where he was headed, the fact that he was carrying a firearm and that it was his intent to shoot someone.  Id. at 833.  The officers made contact the person who matched the description and who was found to have a firearm on his person after being ordered to stand. Id.  The trial court suppressed the evidence.  Id. On appeal the state posed to the appellate court the following question:

“In a situation like this, what is a policeman supposed to do? He has information that a violent crime may take place which will result in serious injury or death. A response less than a stop and frisk would be no response at all. Must he ignore the information given?”

 

Id. Struck by the question the Second District chose to reexamine its stop and frisk jurisprudence.  Ultimately deciding to retreat from its previous decisions relating to anonymous tips the court held the following:

We, therefore, hold that an anonymous tip can provide the basis for a valid stop. …  Therefore, the fact alone that information is received from an anonymous source does not in and of itself invalidate a stop based on that information.  What are the indicia of reliability which can be found in an anonymous tip? We believe that one such indicium is the specificity of the information given, as in the instant case. Such detail carries a strong indication that the information is based on the personal observation of the informant. Moreover, the information is corroborated when officers act promptly and find an individual in the named location who exactly fits the description, as in this case.

 

Id. at 838-839 (emphasis added).   In Hetland v. State, 387 So.2d 963 (Fla. 1980) the supreme court in affirming the Second District stated:

We agree with the District Court of Appeal, Second District, that an inflexible rule based on the anonymous nature of the tip would not be appropriate in all instances without regard to the other circumstances involved. A valid stop and frisk may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself.

 

The tipster in this cause described significant erratic driving and behavior.  For some distance the tipster told of dangerous erratic driving that included weaving in and out of traffic and speeding. The tipster observed the Defendant making a u-turn and ultimately advised of observing the driver turn onto the street where the officer found the Defendant stopped in the middle of the road.  The tip was detailed in its description of the Defendant’s driving as well as to the description of the vehicle being driven including the color, the type of vehicle, the fact that it had a ladder rack with a ladder on it and the tag number.  It is not disputed that the officer pulled in and waited behind the right vehicle only moments after receiving the tip when he first encountered it on 178th Avenue.  Upon approaching the vehicle the officer finds the truck stopped in the middle of a road where according to the officer’s testimony, as it was positioned, it would impede traffic in both directions causing drivers to drive onto the grass or into oncoming traffic.  For a minute and a half the officer waits behind the truck and the truck fails to move.  In a culture where failing to proceed immediately after a light turns green will cause one to be met with a barrage of blaring car horns, ninety seconds is an exceptionally long period of time.  For at least ninety seconds the Defendant had a car behind him, presumably one he did not know was a police car and he failed to move.   If the Defendant knew that a police officer was waiting behind him and failed to move this arguably would serve a greater corroboration of erratic, unusual, bizarre or atypical operation of this motor vehicle.  There was no testimony at hearing and no argument forwarded to suggest that the truck suffered from any mechanical difficulties.  There was no evidence presented to establish why the Defendant’s car would sit in the middle of the road blocking traffic for as long as the officer sat behind him without activating his lights.  What more is required for there to be corroboration that this truck is being operated erratically on the highways of this state than this truck stopping in the middle of a two lane unlined road failing to move and blocking the path of the car that waits for ninety seconds behind it? 

The facts of this case are similar to the above cited cases with one exception, here in addition to the detailed information provided by the tipster the officer observing the Defendant sitting stationary in the middle of the road impeding traffic for ninety seconds is additional corroboration.  Knowing that this Defendant has just been engaged in erratic driving I posit the same question presented to the Second District in Hetland, 366 So.2d 831: “In a situation like this, what is a policeman supposed to do? . . . Must he ignore the information given [and what he personally observed for further corroboration]?”  If the officer sat patiently and waited behind the truck for two minutes would that have qualified as corroboration?  Three minutes? Ten minutes?  Is it the case that the only way to corroborate the Defendant’s driving behavior is to allow this defendant to proceed onto the roadways endangering the motoring public?  Florida courts have found that investigatory detention, even without reasonable suspicion or probable cause, to be appropriate at times because of the dangers inherent on the roadways of this state.  See Bailey v. State, 319 So.2d 22 (Fla. 1975).  It should not have been necessary and would have been inherently dangerous for the officer in this case to have decided to wait to watch the Defendant, who stopped just shy of an intersection, resume his erratic driving before deciding to conduct an investigatory stop.  To require the officer to wait until the Defendant actually again endangers the motoring public with more erratic driving in order to obtain more corroboration is to elevate form over substance. 

II.        Probable Cause/Traffic Infraction

The officer testified to two separate traffic infractions he thought the Defendant committed and argued that both were a basis for his stop.  Both of his asserted reasons involving a broken side mirror and wooden bumper have been shown to be mistake of law and not sustainable as a basis for conducting a stop.  However, the officer testified at hearing regarding the Defendant’s truck impeding traffic because it was stopped in the middle of the road.  The officer was clear that a car, including his police car, wishing to pass the Defendant’s truck would have to drive on the grass or into the lane for oncoming traffic thus its path was impeded.  In his written order the trial judge states the Defendant’s truck “did not impede anyone’s travel other than the officer who was there to investigate.”  Section 316.071 Florida Statutes states as follows:

Whenever a vehicle is disabled on any street or highway within the state or for any reason obstructs the regular flow of traffic, the driver shall move the vehicle so as not to obstruct the regular flow of traffic or, if he or she cannot move the vehicle alone, solicit help and move the vehicle so as not to obstruct the regular flow of traffic. Any person failing to comply with the provisions of this section shall be cited for a nonmoving violation, punishable as provided in chapter 318.

 

(emphasis added).  In the recitation of the facts the majority adopts the trial court’s findings that no traffic was impeded.  If this same officer had pulled up behind this vehicle without having first received a BOLO and watched it stopped in the middle of the road for ninety seconds impeding the officer’s ability to drive past few would genuinely question the validity of this stop.   Observing this particular truck stopped in this manner, impeding traffic, which can and does include the police car’s ability to drive pass, violates §316.071 Fla. Stat.  Neither the trial court nor the majority cite to any statute or case law that suggests that a police car, even one engaged in investigating a BOLO, cannot or does not qualify as a part of the motoring traffic that can be impeded.  The trial court’s findings are dually dismissive making it impossible for the state to provide sufficient basis to justify this stop.  At once the trial court states that there is no corroboration and yet the thing that would serve as corroboration, the commission of the infraction for violation of right of way, is inapplicable “because the officer was there to investigate” the BOLO.

            In his order the trial judge cites the case of Koppleman v. State, 876 So.2d 618 (Fla. 4th DCA 2004) stating: “In reversing the trial court, the appellate court stated that the potential to block or interfere with traffic is insufficient to justify a stop.” (emphasis added).  The trial judge then states that based upon the authority of Koppleman “the court finds an insufficient basis to warrant detention of the Defendant for stopping or standing in the roadway.”  In Koppleman the officer observed the defendant’s vehicle parked on a roadway.  The officer had suspicions based upon previous unlawful activity in the area.  Id. at 622.  The defendant’s vehicle obstructed no other traffic. Id. Unlike the case sub judice the officer in Koppleman, upon approaching, immediately conducted a stop. Id at 619.   Nothing in the appellate court’s opinion in Koppleman suggests that the officer waited behind the defendant’s vehicle any length of time and thereby had his path impeded   by the defendant’s actions.  Koppleman is distinguishable.        Here, we are not dealing with the “potential” to block traffic but traffic actually being impeded.  The holding in Koppleman is consistent with the settled law of this state.  Statutory provisions designed to protect the safety of the motoring public may not apply when the public is not directly affected.  See State v. Riley, 638 So.2d 507 (Fla. 1994) (failure to use a turn signal in accord with the statute cannot serve as a basis to conduct a stop unless the failure to use the signal will affect other traffic.)  See also, Hurd v. State, 958 So.2d 600 (Fla. 4th DCA 2007).  In Koppleman the appellate court cited to a previous case it decided called Underwood v. State, 801 So.2d 200 (Fla. 4th DCA 2001). Referring to Underwood the court stated:

In Underwood, this court reversed a trial court's denial of a motion to suppress. An officer approached the defendant's car stopped in the middle of a “very narrow” two-lane street. The deputy noticed the person in the vehicle talking to a pedestrian. There were no other vehicles on the roadway. The officer had to slow down, but not stop.

 

Koppleman at 621 (emphasis added).  Clearly the holding in Koppleman and in Underwood suggests that whether the officer had to stop or not was relevant to the question of whether any infraction was committed for impeding the officer’s path.  In other words the “potential” to block the officer’s car is not enough but actually blocking the officer’s path is sufficient to justify the stop. At bar the office did stop and waited for ninety seconds.  If the Defendant had taken off as the officer approached there would be no infraction here.  See Underwood v. State, 801 So.2d at 201. Arguably, if the Defendant had taken off within seconds of the officer stopping behind his vehicle there may have been no infraction either.  But by any measure any truck causing other vehicles to wait behind it for ninety seconds without suffering mechanical failure violates the spirit and intent of §316.071 Florida Statute.  There was probable cause to believe that an infraction was committed and sufficient cause to conduct a stop. The fact that the officer does not specifically cite this statute as a basis for the stop in his report is of no moment.  See State v. Hernandez, 718 So.2d 833, 835 (Fla. 3rd DCA 1998) (the proper evaluation is “whether an officer could have stopped the vehicle for a traffic infraction.”)    

There are several other statutes that may have served as a basis for conducting a stop under this factual scenario.  See e.g. §§316.194, 316.195 and 316.2045 Florida Statutes.  Those statutes either went unstated by the officer or were not argued by the prosecutor.  However, the officer did state that the Defendant’s stopped truck as positioned impeded traffic and the prosecutor argued this fact on five separate occasions to the trial judge at hearing.  This issue was properly preserved for appeal.

III.       Reasonable Suspicion/Totality of the Circumstances.

“An automobile stop is ... subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Davison v. State, 34 Fla. L. Weekly D986 (Fla.1st DCA2009) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).  The constitutional validity of a traffic stop depends on purely objective criteria. Whren, 517 U.S. 806, 813.  This objective test “asks only whether any probable cause for the stop existed” making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant. Holland v. State, 696 So.2d 757, 759 (Fla.1997).  If there is any basis to justify the stop, even if it is not the same basis stated by the officer, the stop is constitutional. Dept. of Highway Safety and Motor Vehicles v. Jones, 935 So.2d 532, 534 (Fla. 3d DCA 2006). See also, Department of Highway Safety and Motor Vehicles v. Utley, 930 So.2d 698 (Fla. 1st DCA 2006); State v. Perez-Garcia, 917 So.2d 894 (Fla. 3d DCA 2005). If a police officer observes a motor vehicle operating in an unusual manner, this may serve as justification for a stop even when there is no violation of traffic rules and no citation is issued. Bailey v. State, 319 So.2d 22, 26 (Fla.1975); State, Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” DeShong, at 352; Finizio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001). When answering the question of whether an investigatory detention is justified, trial courts must look to the totality of the circumstances. Tamer v. State, 484 So.2d 583, 584 (Fla.1986).

In Bailey v. State, 319 So.2d 22 (Fla.1975), the Florida Supreme Court upheld the traffic stop of a driver who was observed driving her vehicle at a slow rate of speed and weaving within her lane of traffic. The court expressly stated that there were no circumstances which would reasonably have led the officer to believe criminal activity was taking place. 319 So.2d at 26. The court nevertheless validated the traffic stop, stating that ‘[b]ecause of the dangers inherent to our vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.’ Id.

 

Finizio v. State, 800 So.2d 347 (Fla. 4th DCA 2001).  When determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop, “the totality of the circumstances-the whole picture-must be taken into account.” Tamer v. State, 484 So.2d 583, 584.  Even when none of the facts standing alone would independently give rise to a reasonable suspicion, collectively those facts when viewed in totality by an experienced officer, can provide justification for a brief detention. Tamer, 484 So.2d at 584.

         The testimony at hearing revealed that the arresting officer in this case was a six year veteran police officer.  At the time he received the call he was less than two blocks away from the last street the anonymous tipster observed the Defendant turn onto.  All of the details provided by the tipster relating to the color and description of the Defendant’s vehicle were accurate.  The tag number provided by the tipster was correct.  The tipster described erratic even reckless driving that continued for several blocks as the tipster followed.  Upon making contact with the Defendant’s vehicle the officer observed that this vehicle was stopped in the middle of the road.  For ninety seconds the vehicle did not move while the officer waited behind it.  Under the totality of the circumstances and despite what the officer states was his basis for conducting the stop there was and remains an objective basis to find that the brief detention in this cause was necessary and the stop was valid under the totality of the circumstances. 

In our analysis of the mixed questions of law and fact we are to give deference to the trial court’s findings of fact because the trial judge has a “superior vantage point to see and hear the witness and judge their credibility.”  Conner at 607.  In the case sub judice the trial judge specifically finds the officer’s testimony to be credible.  He accepts that the factual scenario as set out and described by the officer to be true.  The factual scenario as accepted by the trial court is sufficient for all of the reasons set forth in this dissent to reverse the trial judge’s ruling.  This matter should be resolved by jury trial.  The state has met its burden in establishing the validity of the stop or all of the reasons stated herein.    I would reverse.

ORDERED at Clearwater, Florida this ___ day of August, 2009.

 

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross. 

 

 

cc:        Honorable John D. Carballo  

            Office of the State Attorney 

            Ricardo Rivera, Esquire                                                                     



[1] This Court appreciates the trial court’s diligence and professionalism in preparing the order.