County Criminal Court: CRIMINAL LAW — Search & Seizure — Stop — Officer had probable cause to stop defendant when two citizens had approached officer concerned about defendant driving while intoxicated.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Joseph John Ruwell, No. 08-02772-CFAWS (Fla. 6th Cir. App. Ct. December 30, 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 PASCO COUNTY

APPELLATE DIVISION

 

 

STATE OF FLORIDA,     

                        Appellant,

                                                                        UCN:              512008CF002772A000WS

v.                                                                     Case No:       0802772CFAWS

                                                                        Lower No:    CTC07108502XTWS

 

JOSEPH JOHN RUWELL,                                               

                        Appellee.                                                      

____________________________/

 

Appeal from an Order Granting

Motion to Suppress

Entered by Pasco County Court

County Judge Marc H. Salton

 

Bryan Sarabia, A.S.A.

for Appellant

 

Hans M. Grieble, Esq. 

for Appellee

 

 

ORDER AND OPINION

 

            The State appeals a County Court’s order granting Appellee’s Motion to Suppress.  The issue on appeal is whether two citizens’ report of criminal activity is legally sufficient to create a reasonable suspicion forming the basis to make an investigatory traffic stop.  We find that it is.  This Court reverses the trial court’s order as set forth below. 

 

FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

            On August 9, 2007, at about 11 o’clock at night, two women in a car approached Deputy Gary Carmen of the Pasco County Sheriff’s Office.  The women told Deputy Carmen that they were extremely concerned about a man who was at a nearby gas station, standing by a red pick-up truck.  The women pointed to Appellee at his vehicle, which was the only red pick-up truck at the gas station.  Deputy Carmen saw Appellee getting into his truck, while the women were telling him their story.  The women reported that the man had staggered as he approached them, and he was definitely drunk.  The women further reported that Appellee had a strong odor of alcohol and told them to “be careful because the cops were over there,” as he pointed to Deputy Carmen’s vehicle.  Deputy Carmen concluded that the women were likely gas station customers and were genuinely concerned about the man driving in his condition.  Deputy Carmen did not have enough time to get the women’s names before Appellee began driving out of the gas station.      

            Deputy Carmen was concerned that Appellee might be impaired.  As Appellee pulled into the adjacent parking lot, Deputy Carmen drove in his direction.  Deputy Carmen did not initially get directly behind Appellee’s truck.  Appellee drove down one of the parking lot lanes, but did not swerve.  As Deputy Carmen approached, Appellee stopped his truck and started backing toward where Deputy Carmen was heading.  Deputy Carmen found Appellee’s actions improper and unusual behavior.  Appellee backed through several parking spaces, not just one.  Appellee could not have been trying to park or take another route.  Deputy Carmen stopped his car, activated his lights, and initiated a traffic stop.   

 Deputy Carmen initiated the traffic stop based on the improper backing and the women’s statements.  Although Deputy Carmen did not issue a citation for improper backing, he believed that Appellee did back improperly.  Appellee told him that he had consumed two beers.  Deputy Carmen charged him with Driving Under the Influence. 

At trial, in finding that Deputy Carmen had no lawful basis to stop Appellee’s truck, the court granted Appellee’s motion to suppress the evidence gained from the stop.  The State argues that the stop was lawful.

 

 

STANDARD OF REVIEW

In reviewing a motion to suppress, an appellate court must defer to the trial court’s factual findings, where they are supported by substantial, competent evidence; however, legal conclusions are reviewed de novo.  Connor v. State, 803 So. 2d 598 (Fla. 2001); State v. Rudy, 974 So. 2d 1164, 166 (Fla. 4th DCA 2008). 

 

 

LAW AND ANALYSIS

An officer may temporarily detain an individual if the officer has a reasonable, articulable suspicion that the individual has committed, is committing, or is about to commit a crime.  Terry v. Ohio, 392 U.S. 1 (1968); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).  "'Reasonable suspicion' is a less demanding standard than that for probable cause, and 'considerably less than proof of wrongdoing by preponderance of the evidence.'" State v. Gonzalez, 682 So. 2d 1168, 1170 (Fla. 3d DCA 1996).  An officer, therefore, may detain a person in an investigatory stop when that officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be taking place. Id.

A tip’s reliability varies based upon whether it is truly anonymous or offered by a citizen informant, who approaches the police in person to report criminal activity.  A tip from a citizen informant is deemed more reliable than an anonymous tip. Baptiste v. State, 995 So. 2d 285, 292 (Fla. 2008); State v. Maynard, 783 So. 2d 226, 228 (Fla. 2001).  A citizen informant is one who is not motivated by pecuniary gain, but to further justice, while an anonymous tipster’s motivation and veracity is unknown.  Florida v. J.L., 529 U.S. 266, 270 (2000); State v. Maynard, 783 So. 2d 226, 229 (Fla. 2001); State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997).  Face-to-face anonymous tips are presumed inherently more reliable than an anonymous telephone tip, as the officers receiving the information can better observe the demeanor and perceive the credibility of the informants.  United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004); J.P.N. v. State, 931 So. 2d 1066, 1068 (Fla. 4th DCA 2006).  Furthermore, a witness who approaches the police in person may subject herself to potential retaliation from the subject, thereby rendering the tip more reliable than an anonymous tip. See United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000). 

In this case, the two women risked approaching the police officer in person within Appellee’s sight.  Deputy Carmen observed their demeanor and credibility.  He testified that the women appeared extremely and genuinely concerned for Appellee’s safety.  Their names needed not actually have been known, since their identity was readily discoverable.  See State v. Evans, 692 So2d 216, 219 (Fla. 4th DCA 1997).  Had it not been for the exigency of Appellee driving away, Deputy Carmen could have readily obtained their names or license tag number.  Carattini v. State, 774 So. 2d 927, 930 (Fla. 5th DCA 2001).

This case is analogous to Carattini v. State, 774 So. 2d 927 (Fla. 5th DCA 2001), where an unidentified woman approached an officer reporting that three men had just run out of Dillard’s carrying a duffle bag full of the store’s clothes.  The woman pointed out the vehicle that the men were getting into.  The car began driving off, so the officer contacted other law enforcement officers and provided a partial tag number, description of the car, and direction of travel.  The officer left the woman to assist the other officers.  The officer did not know the female informant or her name.  When the first officer returned to the store, the woman had left.  The Fifth District found this scenario distinguishable from the majority of anonymous tip cases because (a) the woman made a face-to-face report to the officers; (b) the woman’s observations were based on her eyewitness account of an apparent crime in progress; (c) the officer conducted his own investigation by having the woman point out the people she was referring to; and (d) the exigencies of the situation did not allow the officer to ascertain the woman’s identity.  Carattini, at 930.  The court stated that, “it would be an absurd result to require an officer to obtain identifying information from an eyewitness informant to a crime in progress when [the officer] is immediately needed to assist in apprehending the suspects.”  Id. at 930. 

Here, as in Carattini, the informants made a face-to-face report to the officer based on their observations of an apparent crime in progress, the women pointed directly to the suspect, and the exigency did not allow the officer time to identify the women.  This Court agrees with the reasoning in Carattini, and the many cases approving the temporary detention of individuals, in that the Fourth Amendment does not require an officer who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.  Rather, Terry v. Ohio, supra, recognizes that it may be the essence of good police work to immediately respond.  A brief stop of a suspicious individual to determine his identity or maintain status quo momentarily while gathering more information, may be most reasonable in light of the facts known to the officer at the time.  Adams v. Williams, 407 U.S. 143 (1972).  As such, Deputy Carmen reasonably relied on the women’s information during their face-to-face encounter and his own corroboration of some of that information, as this provided the requisite founded suspicion to stop Appellee.  It would have been absurd to require the officer to waste time verifying the women’s identities, while Appellee drove off, potentially putting himself and others on the road at risk.     

The trial court, however, determined that Deputy Carmen violated Appellee’s Fourth Amendment rights by conducting the traffic stop, reasoning that, since Deputy Carmen’s information was received from informants, their veracity, reliability, and basis of knowledge were critical in establishing the reasonable suspicion required for the stop.  The trial court’s reasoning was primarily based on its mischaracterization of the women as mere anonymous tipsters.  The facts supported by substantial, competent evidence indicated that the women were more properly categorized as citizen informants.  Therefore, the source of the information was more reliable than the trial court found and was sufficient alone to form a reasonable suspicion to stop Appellee.  As such, whether Appellee improperly backed his truck was irrelevant.  The motion to suppress should have been denied. 

CONCLUSION

Appellee’s Motion to Suppress was improperly granted based on a misapplication of the law.  Based on the totality of the circumstances, and the reliability of the citizen informants, Deputy Carmen had the requisite reasonable suspicion to initiate the traffic stop.  Therefore, it is

 

ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is REVERSED, and this case is REMANDED for proceedings consistent with this opinion. 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 30th day of December 2009.

 

Original order entered on December 14, 2009 by Circuit Judges W. Lowell Bray, Jr., Daniel D. Diskey, and Stanley R. Mills.