County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Stop --- Evidence of defendant leaving hotel parking lot did not support stop of defendant’s vehicle even though there was a report of a burglary at the hotel. Alleged traffic violation was not properly preserved for appellate review because State did not argue it to trial court and raised it for the first time on appeal. Order granting defendant’s motion to suppress affirmed. State v. Adamo, No. CRC 07-38 APANO, (Fla. 6th Cir.App.Ct. March 18, 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

 

 

STATE OF FLORIDA

 

            Appellant,

 

Appeal No. CRC 07-00038APANO UCN522007AP000038XXXXCR

JOSEPH E. ADAMO

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Granting

Motion to Suppress

entered by the Pinellas County Court

County Judge John Carballo

 

Maria N. Miaoulis, Esquire

Attorney for Appellant

 

Debora Moss, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, State of Florida’s, appeal from an order granting a motion to suppress entered by the Pinellas County Court.  After reviewing the briefs and record, this Court affirms the trial court’s order.

 

Factual Background and Trial Court Proceedings

            At approximately 12:40 a.m. on November 11, 2006, Deputy Clark and Deputy Cleary riding as a two man unit were dispatched to an alleged burglary at the Aday Motel in Oldsmar.  As the deputies neared the motel they observed a white GMC pickup truck leaving the parking lot of the motel at what was described as a high rate of speed.  The deputies immediately did a u-turn and activated their lights and siren to stop the pickup truck to determine whether or not the occupant of that truck was involved in the alleged burglary. 

            The deputies followed the vehicle for approximately one-half mile before it stopped.  During that time, the deputies observed the vehicle swerve into oncoming traffic and off of the roadway into the shoulder while the driver placed both hands out the window.  The deputies further noted that the vehicle did not have a vehicle tag displayed in either the rear window or bumper.  The Appellee was the driver of the pickup truck. 

            Upon the stop of the pickup truck the Appellee refused after several requests to provide the deputies with his name.  He was arrested for resisting arrest without violence.  Ultimately, the burglary call was determined to be a motel resident breaking into his own room.

            The Defendant filed a motion to suppress asserting that there was no lawful basis for the traffic stop.  That motion was granted after hearing.

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, 967 So2d 1021 (Fla. 2nd DCA 2007).

Analysis

1. Issues Preserved for Review.  In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.  Sunset Harbour Condominium Association v. Robbins, 914 So2d 925 (Fla. 2005); Tillman v. State, 471 So2d 32 (Fla. 1985); Moss v. Moss, 939 So2d 159 (Fla. 2nd DCA 2006); § 924.051(1)(b) Fla. Stat. (2006).  As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.  A claim not raised in the trial court will not be considered on appeal.  Sunset Harbour Condominium Association, 914 So2d at 928.

2. 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, 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 (2nd 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 (5th 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 (4th 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. 2nd DCA 2003).

3. What Actions Initiate a Traffic Stop?  Florida law consistently holds that when an officer activates his or her emergency lights, that act initiates an investigatory stop, not a consensual encounter. Newkirk v. State, 964 So2d 861 (Fla. 2nd DCA 2007); Siplin v. State, 795 So.2d 1010, 1011 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194, 195 (Fla. 2d DCA 2001); Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); Brooks v. State, 745 So.2d 1113, 1113 (Fla. 1st DCA 1999). The reason such encounters are investigatory stops rather than consensual encounters is that the use of the emergency lights leads a reasonable citizen to believe that he or she is not free to leave. Hrezo, 780 So.2d at 195; Young, 803 So.2d at 882; Brooks, 745 So.2d at 1113-14.

4. The Present Case.  In the present case, the following exchange articulates the issue actually presented to the trial court: 

STATE:  The State’s position is – I agree with the Defense’s position that the initial contact or visibility of him was based on suspicion of a burglary.  My position is that as they – they believed that his behavior exiting that location that they were dispatched to was suspect.  When they went behind him all these things developed which the State’s position is created a valid stop and subsequently his arrest for those charges.

 

THE COURT:  When did the stop occur?  When the lights go on or when he puts the car in park?

 

STATE:  The State’s position is the actual stop occurred when he pulled over. I think they were trying to – they were attempting to make contact with him to investigate the burglary.  So when they put their lights on it was more of an investigatory measure to speak with him.

 

R. 92.  The ruling of the trial court addressed the issue as presented.  The stop as a matter of law occurred when the deputies activated their lights and siren.  What occurred after that cannot be used to justify the stop.  There was no argument that the stop was justified because the Appellee’s manner of driving out of the motel parking lot was a traffic infraction in violation of § 316.125 Fla. Stat. (2006).  That statute was not cited and a violation of that statute was not asserted to the trial court.   That issue and that specific legal argument or ground was not presented to the trial court and was not preserved.  It cannot now be argued for the first time on appeal.

            The State and the Defendant agreed in argument to the trial court that the deputies initially activated their lights and siren to stop the pickup truck observed leaving the motel parking lot to determine whether or not the occupant of that truck was involved in the alleged burglary.  The actions of the deputies are understandable and the argument presented has the virtue of being the simple factual truth.  However those initial observations, standing alone, without mention or argument of a traffic infraction pursuant to § 316.125, were not sufficient to justify the traffic stop.  Keeling v. State, 929 So2d 1169 (Fla. 2nd DCA 2006).  

Conclusion

            This court concludes that the order of the trial court granting Appellee’s Motion to Suppress should be affirmed.

            IT IS THEREFORE ORDERED that the order of the trial court granting Appellant’s Motion to Suppress is affirmed.

GROSS, Judge. Concurs

ANDREWS, Judge., Concurs with opinion.

 

            I concur in the judgment pursuant to the clear authority of I.R.C. v. State, 968 So.2d 583 (Fla. 2nd DCA 2007); Sunset Harbour Condominium Association v. Robbins, 914 So2d 925 (Fla. 2005); Tillman v. State, 471 So2d 32 (Fla. 1985) and Moss v. Moss, 939 So2d 159 (Fla. 2nd DCA 2006).  I write separately however, to address several issues I find of concern.  

            The trial court granted the motion to suppress and entered an order that reads in sum and substance “the Court finds that based on the testimony presented in court, the stop was legally not permitted pursuant to Siplin v. State of Florida, 795 So.2d 1010 (2 DCA 2001) and Herzo v. State of Florida, 780 So.2d 194 (2 DCA 2001).”  As our opinion states the issue in this cause is a mixed question of law and fact.  The trial court’s order states the law the court relied upon however, in his order the trial judge does not indicate the facts he relied upon in rendering his decision but transcript of the hearing offers his analysis.  There the trial judge stated, “[o]nce the officer A, uses, for example, his air-horn or puts on the overhead lights a stop has occurred. And at this point in the testimony, I don’t believe they had enough at that time to make a stop.”  (Record at 103).  Both Siplin and Heroz, assert that the use of “take down lights” or an “air horn” qualifies as a detention.    I contend the threshold question raised by the testimony is not whether the officers had reasonable suspicion to conduct an investigatory stop for the burglary.  The question presented here is whether the officers had probable cause to conduct a stop because of the traffic infraction they witnessed as the defendant left the Aday Motel parking lot. 

In examining the validity of a traffic stop under the Fourth Amendment, 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. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So.2d 1171, 1174 (Fla.2004). The ‘officer's reasons for a stop are immaterial and that stop is reasonable when the officer had probable cause to believe that a traffic violation occurred.’ Petrel v. State, 675 So.2d 1049, 1050 (Fla. 4th DCA 1996). The ‘test ... is whether an officer could have stopped the vehicle for a traffic infraction.’ Id. (quoting Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). ‘Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.’ Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

 

State v. Young, 971 So.2d 968 (Fla. 4th DCA 2008).   See also State v. Hernandez, 718 So.2d 833, 835 (Fla. 3rd DCA 1998) (the proper evaluation is “whether an officer could have stopped the vehicle for a traffic infraction.”).  At hearing the officer testified:

            Q:        And when you drove to that area what happened?

            A:        As we reached the intersection, I believe Saint Petersburg Drive and Bayview Drive, we saw a white pick-up truck leaving the scene – leaving the motel at a high rate of speed, pulled out into the road without regard for other people around          him; he didn’t bother to slow or stop before entering the highway.

(Record at 51) (emphasis added).  

            A:        It was just a matter of erratic driving, leaving the parking lot, swerving out on the roadway, not stopping before entering the roadway – the through highway.

            Q:        Well, was there a stop sign or no?

            A:        No, no.  But they’re required to stop prior to entering the through highway. . . .

(Record at 71) (emphasis added).  Florida Statue 316.125(2) (2006) states:

The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard.

 

Clearly, the statute requires any vehicular traffic entering a roadway to stop, to check for pedestrians or oncoming traffic.  The defendant by all accounts failed to do so.  There was probable cause to conduct the stop.  As we have stated and the case law affirms, the failure of the State to specifically argue the above statute forecloses such an argument on appeal.   Yet, upon reading the record there is reason to doubt whether the State was placed on notice of the issue the defendant sought to suppress and therefore the argument that needed to be perfected.  

            In his motion to suppress the defendant states, “a valid temporary tag for the vehicle was displayed in the back window behind the driver’s seat.  As a result of the officer being able to determine there was a tag and that it was valid, the continued detention of the defendant was unlawful.”  (Record at 21).  The defendant offered the testimony of his employer, the owner of the vehicle, who testified that there was a tag in the rear window of the car on the day it was driven by the defendant. (Record at 82-83).  Thus, at first blush it appears that the subject of the motion and the hearing relate to the continued detention of the defendant after the officer determined the tag was valid and not the stop itself.  However, on page 87 of the record the trial judge asked for argument and immediately defense counsel argued the issue related to the stop and not the detention of the defendant.  During her argument the Assistant State Attorney complained that she was surprised by the issues related to the stop as opposed to the unlawful detention as presented within the confines of the motion. (Record at 93).  In addition, on page 100 of the record the following exchange occurs between the Assistant State Attorney and the court:

I mean, I read the whole detailed motion, you know, and thought - - and I spoke with Ms. Moss yesterday and she said something about the case law and the tags. So that’s what I was told; you know, the tags.  There is case law out there, if you find it’s a proper tag they shouldn’t be detained. But Your Honor - -

 

THE COURT: I looked at that too; I thought it was going to be a question of well, you know, as soon as he finds a valid tag he should let him go, but I didn’t, you know, so.   

 

Clearly, based upon the motion, both the state and the court, in their pre-motion research, were lead to believe the issue before the court on this day was the post stop detention and not the stop itself.  Rule 3.190(h) (2) Florida Rules of Criminal Procedure states:

Every motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.

 

I do not believe that the motion, as filed by the defendant, complies with this rule.  It cannot be said that the motion placed the Assistant State Attorney or the court on notice of the particular evidence to be suppressed, the reason for the suppression or the facts that should cause the suppression.  I therefore believe that the case at bar is distinguishable from I.R.C, Tillman, and the other cases we cite in that the State was hindered in its efforts to make the appropriate argument in defense of the motion because the motion was itself defective and did not comply with the rules of criminal procedure.  Presented with a proper motion the Assistant State Attorney may have been prepared to make the argument at hearing that she now makes on appeal with the attendant case law.  We do not know.

            “We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review the legal issues de novo.  It is a legal issue-the standard to be applied in determining the justification for the stop and search-that allows us to apply the de novo standard of review.” State v. Young, at 971 (citations omitted).   In my view, the whole point of de novo review is for the appellate court to review a case and consider the sufficiency of the evidence in its entirety.  The supreme court has been clear that when reviewing suppression issues in the context of the 4th and 5th amendments the court is not and should not be bound by the confines of the arguments presented at hearing but must conduct an independent review.  In Connor v. State, 803 So.2d 598, 608 (Fla. 2001)  the supreme court held “appellate courts should continue to accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.”  See also, Thomas v. State 894 So.126, 136 (Fla. 2004).  It cannot be said that an independent review of the mixed questions of law and fact has been undertaken when the appellate court does not and cannot consider a fact elicited on two occasions in the testimony at hearing because it was not argued by counsel in summation.  The arguments of counsel are neither law nor fact.  In our analysis of the mixed questions of law and fact we are to give deference to the trial court’s findings of fact because the trial judge has a “superior vantage point to see and hear the witness and judge their credibility.”  Conner at 607.  In the case sub judice the trial judge does not posit in his oral findings of fact that the officers are not credible or that their testimony is unreliable.   He seems to accept the facts as stated by the officers but finds that the facts are insufficient to justify the stop.  The trial judge never gave any consideration at all to the testimony that the defendant failed to stop upon leaving the parking lot.  The testimony should have been given consideration which is why motions to suppress are reviewed de novo. 

            However, even though I assert that the case at bar is distinguishable because of the defective motion, the Assistant State Attorney did not actually object to the court adjudicating the issues raised by defense counsel for the first time during her argument.  Further, the Assistant State Attorney does not raise the issue of being forced to argue an issue outside the confines of the motion in her brief on appeal.  It is not appropriate for the court to raise this issue for the appellant even in light of de novo review. See Johnson v. State, 660 So.2d 637, 645 (Fla.1995) (“The law is well settled that failure to raise an available issue constitutes an admission that no error occurred.”)   It is an odd set of circumstances when it is legally permissible for one party to be surprised by the argument presented in the initial hearing but be prohibited from presenting the argument that nullifies the surprise on appeal.  This court is constrained by the case law otherwise I would recommend reversal.  

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of March, 2008.

 

_____________________________

Michael F. Andrews                                               Circuit Court Judge

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

 

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

 

           

cc:        Honorable John Carballo       

            Office of the State Attorney

            Debora Moss, Esquire