IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
 OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,

            Appellant,

vs.                                                                   Appeal No. CRC 00-10788 CFANO

RUSSELL S. KALINSKY,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from Order on Defendant’s Motion to Suppress
Pinellas County Court
County Judge Robert J. Morris, Jr.

Allison Catherine Bailes, Esq.
Assistant State Attorney
Attorney for Appellant

Appellee is pro se and has not filed an Answer Brief

ORDER AND OPINION

            THIS MATTER is before the Court on the state’s appeal from the trial court’s order on defendant’s motion to suppress.  After reviewing the briefs and record, this Court affirms the trial court’s order granting defendant’s motion to suppress.

            The defendant’s motion to suppress argued that the officer did not have reasonable suspicion to stop and detain the defendant.  A trial court’s determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review.  Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997).  Furthermore, a ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.  Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978). 

At approximately 2:20 a.m., on May 6, 1999, Officer John Horning received a BOLO message from an anonymous source for a two-door, light blue vehicle traveling near US 19 and Nursery Road with a male passenger shooting a .45 caliber weapon out the window.  Officer Horning was in the vicinity at the time and decided to attempt to intercept.  Within a minute of receiving the BOLO, the officer observed a two-door, light blue vehicle traveling westbound on Nursery Road.  As the officer was turning his vehicle around to follow, he observed the suspect vehicle turn into a convenience store.  The vehicle parked, and the officer watched the two occupants look at him in a manner described by the officer as “suspicious” as they entered the store.  The two subjects left the store in seconds, returned to their vehicle and drove off.  Officer Horning then got behind the vehicle and activated his lights to effect a traffic stop.  The suspect vehicle then accelerated and lost the officer as it entered the Grand Bay Apartment complex.  After driving through the complex, the officer located the defendant standing next to the parked suspect vehicle.  After determining that the defendant was not the subject of the BOLO, the officer issued the defendant a citation for Reckless Driving.

The defendant filed a motion to suppress the traffic stop.  At the hearing on the motion, the court found that an anonymous tipper prompted the BOLO.  The court then distinguished this type of tipster from a citizen informant and stated “an anonymous tipster has got to be confirmed and substantiated in some manner.”  The court further found that the officer did not see the defendant commit any violations of law that would justify the stop at the time he activated his overhead lights and on that basis granted the motion.

Appellant does not argue that the tip was not anonymous.  Tips from anonymous informants must be confirmed and substantiated in some additional manner.  Maynard v. State, 724 So.2d 315, 317 (Fla. 2d DCA 1999).  In J.L. v. State, 727 So.2d 204, 207 (Fla. 1998) the court stated “an anonymous tip can provide the basis for an investigatory stop when the tip, as corroborated by independent police work, exhibits sufficient indicia of reliability to furnish police with a reasonable suspicion that the defendant is engaged in criminal activity,” citing Alabama v. White, 496 U.S. 325 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).   Likewise, the Second District Court of Appeal has routinely held that when an informant is anonymous, the information must be confirmed and substantiated in some additional manner.  Miller v. State, 613 So.2d 1351, 1353 (Fla. 2d DCA 1993); Woodson v. State, 747 So.2d 965, 966 (Fla.2d DCA 1999); Travers v. State, 739 So.2d 1262, 1264 (Fla. 2d DCA 1999).  The appellant erroneously focuses on what the officer observed after activating his lights to justify their activation.  In the instant case, the focus is on what the officer observed prior to engaging his lights thereby effecting a stop.  The officer simply spotted a two-door, light blue vehicle in the vicinity of where the alleged violation occurred.  The two occupants looked at the officer as they entered a convenience store, emerged from the store in seconds, returned to their vehicle and drove off. The officer observed neither any confirming nor substantiating evidence nor any violation of law that would justify a stop at the time he activated his overhead lights.  Since the stop, as well as the investigation conducted thereafter were illegal, the trial court correctly granted the defendant’s motion to suppress.  It is therefore

ORDERED AND ADJUDGED that the trial court’s granting of the defendant’s motion to suppress is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 12th day of January, 2001.

                                                                       

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge

                                                                       

___________________________
NANCY MOATE LEY
Circuit Judge

                                                                       

___________________________
R. TIMOTHY PETERS
Circuit Judge

Copies furnished to:

The Honorable Robert J. Morris

Allison C. Bailes, Esq.
Assistant State Attorney
14250 49th Street North
Clearwater, Florida 34622

Russell S. Kalinsky
560 Calibre Downs Lane
Palm Harbor, Florida 34684