County Traffic Court: CRIMINAL LAW – Traffic Stop – Trial court did not err in denying motion to suppress. Statements of a citizen informant regarding Appellant’s erratic driving given to Pinellas County Sheriff’s Office 911 operator and passed on to Largo Police Department dispatcher fell under the collective knowledge and fellow officer doctrine; thus, information provided to 911 operator was imputed to the Largo Police Department officer who conducted traffic stop of Appellant.  The statements were sufficient to establish reasonable suspicion for traffic stop.  Order denying motion to suppress affirmed.  Wattam v. State, No. 13-00038APANO (Fla. 6th Cir. App. Ct. December 18, 2013).

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

 

 

JACOB TIMOTHY WATTAM

 

            Appellant,

 

Appeal No. CRC 13-00038APANO UCN 522013AP000038XXXXCR

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed December 18, 2013.

 

Appeal from an Order Denying

Motion to Suppress

entered by the Pinellas County Court

County Judge James V. Pierce

 

Larry Sandefer, Esquire

Attorney for Appellant

 

Jacob R. Downing, Esquire

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Jacob Timothy Wattam’s appeal from a decision of the Pinellas County Court to deny his 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. We affirm.

Background

            On November 15, 2012, at approximately 2:25 a.m., Harry Hoang was driving south across the Bayside Bridge, when he observed a Ford F-150, white in color, weaving in and out of traffic.  There was another man, a passenger, with Mr. Hoang.  The Appellant, Mr. Wattam, was later determined to be the driver of the Ford F-150.  Mr. Hoang called 911 from his cell phone because “it seemed dangerous the way -- how he was driving.  It caused me concerns, multiple weaving in and out of traffic, and I just felt that I should alert law enforcement to check it out, was not normal.” 

            The 911 call was answered by a 911 operator at the Pinellas County Sheriff’s Office.  Mr. Hoang told the 911 operator “[y]ou have a DUI right now, South 49th Street.  He’s on the Bayside Bridge right now and approaching the jail.”  Mr. Hoang provided a description of the vehicle, the license plate number and that it was driven by a white male.  Mr. Hoang then told the 911 operator “[h]e’s weaving in and out of traffic in the emergency lane on the right-hand lane.  Speed is at about 65 miles an hour.”  He added the truck was “[a]ll over the place, all over the place” and “[o]h, just almost lost it there in the right-hand lane.”  Mr. Hoang provided his first name and telephone number and a description of the vehicle he was driving. 

            The Ford F-150 exited on to State Road 686 and proceeded west.  Mr. Hoang followed and told the 911 operator “[o]h, my God, he’s stepping on it.  70 miles an hour, far left lane.”  Mr. Hoang followed at a distance as Mr. Wattam proceeded to a McDonalds where he entered the drive thru lane.  Mr. Hoang continued to a Hess station across the street from the McDonalds and waited for police to arrive.  When the police arrived and ultimately conducted a traffic stop of Mr. Wattam in his Ford F-150, Mr. Hoang met with the officers and provided a written statement.

            The 911 operator from the Pinellas County Sheriff’s Office relayed information to the Largo Police Department dispatch operator as Mr. Wattam had entered their geographical jurisdiction.  The Largo Police Department responded to the call and initiated the traffic stop on Mr. Wattam.  After the Largo Police Department conducted their investigation, the Appellant, Mr. Wattam, 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

An appellate court employs a mixed standard of review in considering a trial court's ruling on a motion to suppress. The trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if it is not supported by competent substantial evidence in the record.  

“Competent substantial evidence” has been described as follows:

The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. “Substantial” requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element of the offense charged.

Joseph v. State, 103 So.3d 227, 229 -230 (Fla. 4th DCA 2012).  When reviewing a motion to suppress a circuit court sitting in its appellate capacity may not reweigh the evidence or make credibility determinations.  Duke v. State, 82 So3d 1155, 1157 (Fla. 2nd DCA 2012).  However, the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See 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, 608 (Fla.2001); State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d DCA 2003), review denied, 879 So.2d 621 (Fla.2004).  State v. Marrero, 890 So.2d 1278, 1281 (Fla. 2nd DCA 2005).  All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court's ruling.  Newkirk v. State, 964 So2d 861, 863 (Fla. 2nd DCA 2007). 

Issues

            Mr. Wattam presents two issues.  First, he argues the information provided by Mr. Hoang to the 911 operator at the Pinellas County Sheriff’s Office did not establish a lawful basis for a traffic stop.  Second, he argues the information passed on to the Largo Police Department dispatcher by the 911 operator at the Pinellas County Sheriff’s Office cannot be a lawful basis for the stop; “[t]he 911 operator was not a law enforcement officer and did not relate the facts of the driving to the Largo dispatcher, only that the driving was erratic.” 

Involved Points of Law

1. Reasonable Suspicion.  A founded or reasonable suspicion necessary to support an investigatory stop is a suspicion that would warrant a [person] of reasonable caution to believe that a stop was appropriate. Probable cause and reasonable suspicion are two different standards.  Department of Highway Safety and Motor Vehicles v. Ivey, 73 So. 3d 877, 880 (Fla. 5th DCA 2011) (emphasis added).  A “founded 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.  State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).  The officer's suspicion is “founded” upon an objective foundation which reasonably supports his assessment of the particular circumstances.  Carter v. State, 454 So.2d 739, 741 -742 (Fla. 2nd DCA 1984). 

The United States Supreme Court has held that reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). According to the High Court:

 

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... [An] unverified tip from [a] known informant might not [be] reliable enough to establish probable cause, but nevertheless [is] sufficiently reliable to justify a Terry stop. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Baptiste v. State, 995 So.2d 285, 291 (Fla. 2008) (emphasis added).

2. Traffic Stops in the Absence of an Observed Traffic Violation.  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 traffic] stop is permitted even without a traffic violation, so long as the stop is supported by a reasonable suspicion of impairment, unfitness or vehicle defects. Esteen v. State, 503 So.2d 356 (Fla. 5th DCA 1987); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999) (evidence of abnormal driving, albeit not amounting to a traffic violation, justified stop based on reasonable suspicion of impairment).”  Hurd v. State, 958 So.2d 600, 603 (Fla. 4th DCA 2007) (emphasis added).  “Because 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.”  Bailey v. State, 319 So.2d 22, 26 (Fla.1975) (emphasis added).[1]   

3. Citizen Informants.  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. [2] 

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, 995 So.2d at 291, (emphasis added). 

4.  The Fellow Officer Rule.  The fellow officer rule or collective knowledge doctrine provides a mechanism by which officers can rely on their collective knowledge to act in the field.  Under this rule, the collective knowledge of officers investigating a crime is imputed to each officer and one officer may rely on the knowledge and information possessed by another officer to establish probable cause. See (Cite as: 23 So.3d 767, *770)

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Maynard, 783 So.2d 226, 229 (Fla.2001); Strickroth v. State, 963 So.2d 366, 368 n. 1 (Fla. 2d DCA 2007).  Bowers v. State, 23 So.3d 767, 769 -770 (Fla. 2nd DCA 2009) approved 87 So3d 704 (Fla. 2012).  The fellow officer rule applies to the collective knowledge of officers in different law enforcement agencies investigating a crime and to the establishment of reasonable suspicion sufficient to authorize an investigatory stop.  See U.S. v. Hensley, 469 U.S. 221, 229-233, 105 S.Ct. 675, 680 - 683 (1985).  An arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause; it is sufficient if the police officer initiating the chain of communication had firsthand knowledge. Bowers, 23 So.3d at 770.  An officer conducting a traffic stop does not have to know all the information establishing reasonable suspicion so long as it is known by other law enforcement officials involved with the investigation. See Illinois v. Andreas, 463 U.S. 765, 771 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); United States v. Colon 250 F.3d 130, 135 (2d Cir.2001); see United States v. Hensley, 469 U.S. 221, 230-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Moreno-Vallejo v. United States, 414 F.2d 901, 904 (5th Cir.1969).

            “[U]nder the “fellow officer rule,” the information possessed by one officer in the chain of an investigation, including a 911 dispatcher, is imputed to the other officers for the purposes of assessing whether an investigatory stop is justified. See State v. Maynard, 783 So.2d 226, 229 (Fla.2001).”  Majors v. State, 70 So.3d 655, 660 (Fla. 1st DCA 2011) (emphasis added).  See also State v. Gonzalez, 682 So2d 1168, 1170 (Fla. 3rd DCA 1996); Ellis v. State, 755 So2d 767, 768-769 (Fla. 4th DCA 2000); State v. Evans, 692 So2d 216 (Fla. 4th DCA 1997); Department of Highway Safety and Motor Vehicles v. Ivey, 73 So.3d 877, 881 - 882 (Fla. 5th DCA 2011); Foy v. State, 717 So2d 184 (Fla. 5th DCA 1998); State v. Walker, 20 Fla. L. Weekly Supp. 488a (Fla. 18th Jud. Cir. App. Ct. December 12, 2012) but see State v. Holman, 11 Fla. L. Weekly Supp. 725a (Fla. Escambia County Ct. May 14, 2004).  The majority of federal circuit courts of appeal that have addressed the question have held that the information possessed by a 911 operator/dispatcher is considered part of the collective knowledge of officers responding to a scene.[3]    

The Present Case

In the present case, the information provided by Mr. Hoang to the 911 operator at the Pinellas County Sheriff’s Office was sufficient to establish reasonable suspicion for a stop.  Mr. Hoang was a citizen informant who by happenstance found himself a witness to erratic or dangerous driving and called law enforcement as a matter of civic duty.  He was not a paid informant or anonymous tipster.  His motivation was purely civic duty; he testified “it seemed dangerous the way -- how he was driving.”  As a citizen informant the information he provided “falls at a higher end of the reliability scale” and does not have to be corroborated by independent police investigation.  The trial court’s finding that Mr. Hoang was a “citizen informant” was supported by competent, substantial evidence. 

Mr. Wattam argues the information passed on to the Largo Police Department dispatcher by the 911 operator at the Pinellas County Sheriff’s Office cannot be a lawful basis for the stop; “[t]he 911 operator was not a law enforcement officer and did not relate the facts of the driving to the Largo dispatcher, only that the driving was erratic.”  The first difficulty with this argument is that all the information given to the 911 operator at the Pinellas County Sheriff’s Office by Mr. Hoang is, by the fellow officer rule or collective knowledge doctrine imputed to the officer about to conduct the traffic stop.  That officer does not actually have to know all the details known by the 911 operator before he initiates a lawful traffic stop.  The fact that the information received by the 911 operator at the Pinellas County Sheriff’s Office may have been truncated, distilled or paraphrased as it was immediately passed on to the Largo Police Department dispatcher does not alter the nature of that communication; it was a description of Mr. Wattam’s ongoing driving, not an assertion that reasonable suspicion for a traffic stop existed.

 The second problem with Mr. Wattam’s argument is that a 911 operator does not have to be a sworn law enforcement officer.[4]  This court is aware of no controlling Florida case authority that would require a 911 operator/dispatcher to be a sworn law enforcement officer before the fellow officer rule could be applied.  This court respectfully declines to follow the order of the County Court of Escambia County in Holman. 

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 18th day of December, 2013.

 

 

 

_____________________________

Michael F. Andrews                                               Circuit Court Judge

 

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

                                                           

 

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

 

 

cc:        Honorable James V. Pierce    

            Larry Sandefer, Esquire

            Office of the State Attorney

 



[1] See Staggs v. State, -- Fla. L. Weekly Supp. ----, CRC 13-00012APANO, (Fla. 6th Cir. Ct. Sept.6, 2013) (reviews Florida appellate cases involving stops for erratic driving);  Petrick v. State, 16 Fla. L. Weekly Supp. 154c (Fla. 6th Cir. Ct. Nov. 20, 2008); Cook v. State, 15 Fla. L. Weekly Supp. 239a (Fla. 6th Jud. Cir. Ct. Jan. 25, 2008); State v. Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 9, 2005).

 

[2] In contrast to establishing reasonable suspicion for a traffic stop, because of Florida statutory requirements applicable to misdemeanor arrests, the information provided by a citizen informant cannot be imputed to officers for the purpose of establishing probable cause to justify a misdemeanor arrest. See M. W. v. State, 51 So3d 1220, 1222 – 1223 (Fla. 2nd DCA 2011); Sawyer v. State, 905 So2d 232, 234 (Fla. 2nd DCA 2005).

[3] See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir.2003) (under the collective knowledge doctrine, the dispatcher's knowledge is properly considered as part of the reasonable suspicion analysis even though the dispatcher “distilled and paraphrased” the information before relaying it to the arresting officer); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir.1994) (“where officers are told to investigate a situation without being told all of the facts justifying investigation, the court must look beyond the specific facts known to the officers on the scene to the facts known by the dispatcher”); United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C.Cir.1992) (reasonable suspicion for a Terry stop “can be supplied on the basis of a 911 call alone if it has sufficient indicia of reliability.... [I]f so, a dispatcher may alert other officers by radio, who may then rely on the report ... even though they cannot vouch for it.”) (citations omitted); U.S. v. Wehrle, 2007 WL 521882, 3 -4  (S.D.Ga.,2007); but see United States v. Colon 250 F.3d 130, 138 (2d Cir.2001) (a civilian 911 operator's knowledge could not be imputed to a police dispatcher or the arresting officers “because the operator lacked the training to assess the information in terms of reasonable suspicion, and the operator failed to convey sufficient information from which the dispatcher, a law enforcement officer, could have concluded that a stop and frisk could be ordered, or from which the arresting officers could have concluded that a stop and frisk was appropriate.”).

[4] The record in this case does not establish whether or not the 911 operator at the Pinellas County Sheriff’s Office was a sworn law enforcement officer.