County Criminal Court: CRIMINAL LAW – Traffic Stop –trial court erred in granting motion to suppress; citizen informant provided officer with defendant’s name, type of vehicle, address of where he worked and when he went to work; officer confirmed that defendant’s license was suspended; officer observed the vehicle described at the time and place the caller told him defendant would be there- under the totality of the circumstances, the officer had reasonable suspicion that it was the defendant. Reversed. State v. Clark, 055313CFAES (Fla. 6rh Cir. App. Ct. June 20, 2006)
IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
STATE OF
Appellant,
v.
SCOTT ALLEN CLARK, CASE NO: 055313CFAES
Appellee, Lower No: 053955DASTWS
___________________________/
Appeal from Honorable Debra Roberts
Michael J. Harris, Esq., A.S.A.
Attorney for Appellant
Sonny Im, Esq.
Attorney for Appellee
ORDER AND OPINION
On May 20, 2005,
appellee, Scott Allen Clark, was charged by citation with Driving While License
Suspended or Revoked. The defendant
filed a Motion to Suppress evidence and a hearing was held. The trial court
granted appellee’s Motion to Suppress and the State appealed. This Court has
jurisdiction.
Corporal Fortney testified that he had a "phone tip that the defendant was driving with no license." He explained that the person wanted to remain anonymous but provided a name telephone number to him for verification. He went on to explain what the person said about how they knew defendant was driving, stating "[t]hey advised--told me where he worked and what he drove and when he went to work and he had been driving quite a while with no license." The caller told Fortney that defendant was driving a small black SUV. Thereafter, Fortney ran a computer check and confirmed that defendant’s driver’s licenses was suspended and revoked.
Fortney explained that he then drove by the business the caller told him about on two different occasions, (two different dates) and the third time he drove by is when he made the stop; when the defendant was going to work. He testified that it was the same business the caller told him; and it was the same vehicle the caller told him he would be driving. He was then asked if he saw the defendant in the car driving at the time and he replied "I saw someone, a male, but I wouldn't have at that point knew positively whether it was him or not." He testified that the reason for the stop was to find out if it was the defendant.
Fortney was asked if there was anything else done regarding contact with the person who called him, other than that one phone call he took and he stated that he had talked with the caller a couple of different times. He stated that he was able to recognize the voice of the caller from previous conversations a few days earlier. The state asked '[a]nd as far as the call, were you able to verify from recognizing the voice whether or not this was the same person who he said he was" and Fortney replied "[y]es." He also stated that he had never seen that person (the caller) but dealt with the caller at least three times over the course of few days regarding the same defendant. When asked if this caller ever provided unreliable information he said he did not and that all the information provided turned out to be correct. He testified that he called the informant at the same phone number the informant provided.
On cross examination, Fortney testified that the tipster was a female. He acknowledged that the caller told him that this gentleman (defendant) is DWLSR and uses the name Scott Clark. The caller also provided addresses of the defendant and an address for where he worked. When Fortney disclosed the informant's name, Kim Glass, Defense Counsel asked ""…[a]re you aware that that's his ex-partner's wife?" and Fortney replied, "[n]o I wasn't." He also asked the officer if he was aware that she had a personal vendetta and he replied that he did not know that. Fortney testified that defendant did not commit any civil infractions in front of him and he pulled him over because he had reasonable suspicion that he was driving. He testified that he did not run the tag at the time. He acknowledged that at the time he initiated the stop, he did not know who was actually driving the vehicle but he had suspicion that it was Scott.
The court granted defendant's motion to suppress, finding as follows:
1) On May 20, 2005, a Pasco County Sheriff Deputy Fortney conducted a traffic stop of Mr. Clark's vehicle for DWLSR pursuant to a tip from a citizen.
2) Prior to the stop, Mr. Clark had not committed any traffic violations to justify the detention.
3) At the time of the traffic stop, the officer did not know who was driving the vehicle nor make any reasonable effort to identify the driver prior to the stop.
When reviewing a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690 (1996). The issue here is whether the tip provided the reasonable suspicion needed to make the initial stop. We conclude that it did.
Whether there is
reasonable suspicion for a stop depends on the totality of the
circumstances. L.J.S. v. State,
905 So. 2d 222 (
Similarly, in this case, the officer received a tip from a
citizen informant. The informant provided Fortney with defendant’s name, type
of vehicle, address of where he worked
and when he went to work. The officer confirmed that defendant’s license was
suspended. The officer observed the
vehicle described at the time and place the caller told him defendant would be
there. Thus, the fact that he could not
identify the defendant behind the wheel at the time is not dispositive since under the totality of the
circumstances, the officer had reasonable suspicion that it was the defendant. The
test is not whether the officer had probable cause to stop the vehicle. Rather, it is whether he had enough objective
data to form a well-founded, articulable suspicion that defendant was driving the vehicle, and in doing so,
committing a crime. Lopez. See also Smith v.
State, 574 So. 2d 300 (
IT IS THEREFORE ORDERED that the judgment and sentence be REVERSED.
DONE AND ORDERED in Chambers at New
Port Richey,
________________________
Primary Appellate Judge
_____________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Honorable Debra Roberts
Michael J. Harris, Esq., A.S.A.
Sonny Im, Esq.