County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – An investigatory stop based on an anonymous tip of suspected DUI was lawful when the deputy corroborated the information from the tip and also independently observed the car off the road with the engine running and with no person apparent inside the car.  Opening the car door after finding an unconscious and non-responsive person in the car was permitted as an “emergency exception” to a warrantless search.  Trial court’s order denying motion to suppress affirmed.  Moser v. State, No CRC 07-00048APANO (Fla. 6th Cir.App.Ct. September 25, 2008).

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

MICHAEL MOSER

Appellant,

Appeal No. CRC 07-00048APANO UCN522006CT148655XXXXXX

STATE OF FLORIDA

Appellee.

__________________________________/

Opinion filed _____________________.

Appeal from an Order Denying

Motion to Suppress

entered by the Pinellas County Court

County Judge William H. Overton

Joseph T. Hobson, Esquire

Attorney for Appellant

Blair Clarke, Esquire

Attorney for Appellee

ORDER AND OPINION

PETERS, Judge.

THIS MATTER is before the Court on Appellant, Michael Moser’s appeal from a decision of the Pinellas County Court to deny Appellant’s 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. After reviewing the briefs and record, this Court affirms the judgment.

Factual Background and Trial Court Proceedings

On October 1, 2006, at approximately 11:00 p.m., Deputy Richard Farnham of the Pinellas County Sheriff’s Office was on patrol and received a communication from the Sheriff’s Office directing him to be on the look out for a vehicle, a red Honda Element with Florida license plate number X23KIA. The vehicle was reported to be in a certain area. An anonymous citizen had reported the vehicle to law enforcement and there was concern that the driver was impaired.

Deputy Farnham proceeded, in his cruiser, to the area where the reported vehicle was said to be located. At approximately 11:15 p.m. the deputy observed the red Honda stopped on the side of the road, facing westbound, on the north side of a roadway. The deputy drove by the vehicle which appeared to be unoccupied and thought he heard the engine of the vehicle running. Deputy Farnham was not certain the engine of the Honda was actually running so he turned his vehicle around and drove by the Honda for a second time. The Honda was now on the deputy’s left and he had his window lowered and could hear the engine of the Honda running. The side windows of the Honda were “very black-tinted” and the vehicle still appeared to be unoccupied. The deputy made another U-turn and positioned his vehicle behind the red Honda. Because he had been advised to be on the look out for this very vehicle, because the engine was still running and the vehicle appeared unoccupied, the deputy got out of his cruiser and approached the vehicle. When he reached the Honda, the deputy looked through the front windshield and observed a white male lying in the front seat driver’s side. The seat was reclined. Deputy Farnham knocked on the driver’s side window three separate times. Each of these three times, the deputy tapped on the window three to five times. The man in the Honda did not respond.

Deputy Farnham then opened the driver’s side door of the Honda “to see if the driver was actually passed out from alcohol impairment or if he needed medical help or what was the purpose of him sitting there with the vehicle running, sleeping in it.” When he opened the door, the deputy could smell the odor of an alcoholic beverage. The deputy called out to the man a couple of times and got no response. The man did not wake up. Deputy Farnham then touched the man’s arm and shook him “a little bit” and continued to announce who he was. The man finally came around and woke up. It took thirty to forty-five seconds for this to occur. The man in the car was the Defendant. The Defendant had a hard time sitting up on his own and didn’t know where the release latch was to let the seat up. The deputy asked the Defendant for his driver’s license and identification and the Defendant in a fumbling and slow manner pulled his wallet out and handed the deputy a credit card instead of his driver’s license. The Defendant had slurred speech and bloodshot watery eyes. The deputy told the Defendant that the credit card was not his driver’s license and the Defendant fumbled through his wallet and after passing his license three or four times was finally able to retrieve his license. The deputy concluded that the Defendant was intoxicated. He asked the Defendant to step out of the Honda. The Defendant was arrested for DUI.

The Appellant filed a motion to suppress asserting that there was no lawful basis for the traffic stop. That motion was denied after hearing. The Appellant reserved the right to appeal the denial of his 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. 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. 2^nd DCA 2007).

Stops for Traffic Infractions or Suspected Crimes

It is well established that the prohibition against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution applies to investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus 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). 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). The Florida Supreme Court has adopted this objective test. 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). Specifically, in the Whren case, 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.

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 (2^nd DCA Fla. 1992); Randall v. State, 600 So2d 553 (Fla. 2nd DCA 1992). A reasonable 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." McMaster v. State, 780 So2d 1026 (5^th DCA Fla. 2001). While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an "inchoate and unparticularized suspicion or 'hunch' " of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). "Mere" or "bare" suspicion, on the other hand, cannot support detention. State v. Stevens, 354 So2d 1244 (4^th DCA Fla.1978); Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971). The court determines the stop's legitimacy by considering the totality of the circumstances surrounding the stop. McMaster, 780 So.2d at 1029. In order for a traffic stop for an infraction or a crime 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 (Fla. 2^nd DCA 2003).

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. An anonymous tip may give rise to reasonable suspicion to stop or probable cause to search, where the tip is deemed reliable. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). 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. Baptiste v. State, --- So.2d ----, 2008 WL 4240489 (Fla. 2008); see also Florida v. J.L., 529 U.S. 266, 270 (2000); State v. Maynard, 783 So.2d 226, 229 (Fla. 2001). Thus, the United States Supreme Court has held that 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 (emphasis supplied). The Supreme Court noted that 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).

In the present case, the tip, the 911 call from a citizen was specific. It gave an exact description of a vehicle including license plate number and an area where the vehicle was allegedly being driven in a manner that created a concern that the driver was impaired. The deputy sheriff acted promptly on that information, proceeded to the reported area and quickly located the exact car described in the 911 call. The deputy’s own observations of the vehicle pulled off the side of the road, stopped with engine running and apparently no one inside corroborated and reinforced a concern about the vehicle. It was reasonable and proper that the deputy approach the vehicle to investigate. He surely could not ignore the situation. When Deputy Farnham reached the Honda and observed Defendant lying in the reclined front seat driver’s side apparently passed out or sleeping and then knocked on the driver’s side window several times with no response the deputy’s observations had provided sufficient indicia of reliability to the original 911 call. The totality of all of these circumstances provided a reasonable suspicion to support a traffic stop.

The Emergency Exception to the Warrant Requirement.

The “emergency exception” permits police to enter and investigate private premises to preserve life, property, or render first aid, provided they do not enter with an accompanying intent either to arrest or search. The need to act expeditiously is essential. Riggs v. State, 918 So.2d 274, 280 (Fla.,2005); Hornblower v. State, 351 So.2d 716, 718 (Fla. 1977); see State v. Perez, 12 Fla. L. Weekly 35a (Fla. 11^th Cir. 2004). This authority “is inherent in the very nature of their duties as peace officers and derives from the common law.” Riggs, 918 So2d at 280.

In the present case, Deputy Farnham opened the car door “to see if the driver was actually passed out from alcohol impairment or if he needed medical help”. Considering all of the facts set forth above, the deputy lawfully opened the car door. See State v. Logan, 10 Fla. L. Weekly Supp. 166 (Fla. 18^th Cir. 2001).

Conclusion

In the present case, the original anonymous tip, as corroborated by the independent observations of Deputy Farnham, was sufficiently reliable to establish the reasonable suspicion required for a stop. Additionally the ruling of the trial court that “an illegal seizure of Mr. Mozer did not occur when Deputy Farnham opened the unlocked door to check on the health and welfare of Mr. Mozer, who was completely unresponsive” was supported by competent, substantial evidence. The factual findings of the trial court were also supported by competent, substantial evidence. 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 15th day of September, 2008.

_____________________________

Michael F. Andrews Circuit Court Judge

_____________________________

Raymond O. Gross

Circuit Court Judge

____________________________

R. Timothy Peters

Circuit Court Judge

cc: Honorable William H. Overton

Joseph T. Hobson, Esquire

Office of the State Attorney