County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – Police officer stopping behind a vehicle stopped in the roadway at 2:30 a.m., from which the officer heard a scream, was a “welfare check” and not an investigatory stop or seizure. The specificity of an anonymous tip and a police officer’s independent observations made within 5 minutes of that tip were sufficient totality of circumstances for a reasonable suspicion to support an investigatory stop. Trial court’s order denying motion to suppress affirmed.  Hoopingarner v. State, No. CRC 08-00036APANO (Fla. 6th Cir.App.Ct. November 5, 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

MICHELLE N. HOOPINGARNER

Appellant,

Appeal No. CRC 08-00036APANO UCN: 522007CT180193XXXXXX

STATE OF FLORIDA

Appellee.

__________________________________/

Opinion filed _____________________.

Appeal from an Order Denying

Motion to Suppress

entered by the Pinellas County Court

County Judge James V. Pierce

Thomas M. McLaughlin, Esquire

Attorney for Appellant

Erin McKenney, Esquire

Attorney for Appellee

ORDER AND OPINION

PETERS, Judge.

THIS MATTER is before the Court on Appellant, Michelle N. Hoopingarner’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 December 8, 2007 at approximately 2:30 a.m., Corporal Brett Faulk of the Clearwater Police Department was on patrol and was advised to be on the look out for a white vehicle, with a specific make and model and a specific license plate number. It was believed the driver of the vehicle was DUI and had left the vicinity of Duncan Avenue and Gulf to Bay Boulevard in Clearwater. An instruction to “be on the look out” is commonly referred to as a BOLO. The information in the BOLO was provided by an anonymous caller who gave no predictive information. Approximately five minutes after the BOLO was issued, and about two miles away from the location the anonymous caller reported seeing the vehicle, Corporal Faulk noticed a white vehicle stopped in the roadway, with brake lights on, on South Betty Lane about one hundred fifty (150) feet south of the intersection with Druid Road. As he entered the intersection, he heard what he thought was a female scream coming from the car. Corporal Faulk pulled up behind the vehicle to investigate because he was concerned for the occupant’s safety. Corporal Faulk testified that he activated his rear flashers “so that I wouldn’t be rear-ended”.[1] Corporal Faulk acknowledged that he didn’t know if someone was being beaten, or if it was someone just having fun. He did not know if the occupants of the car were screaming or laughing and he described the noise as a “female shrill”.

When Corporal Faulk pulled up behind the vehicle, he was able to confirm that the description from the BOLO matched the Appellant’s vehicle. The license plate number of the Appellant’s vehicle also matched that of the vehicle from the BOLO. The Appellant’s vehicle was not blocking traffic and the corporal had not seen Ms. Hoopingarner commit any traffic offense. He approached the vehicle on foot. Corporal Faulk testified that he was performing a welfare check and not a DUI investigation when he approached the car. He was “investigating the idea of possibly a physical crime.”

The passenger in the Appellant’s car testified that he and Ms. Hoopingarner were laughing loudly in the parked car when Corporal Faulk pulled up behind them. He testified that he had mentioned something that they both found funny and they pulled over and stopped to finish “the moment”. This witness testified that he saw the blue flashing lights of Corporal Faulk’s “cop car” and accordingly did not feel that he was free to leave at that point. He also testified that the car was not blocking traffic or parked in the middle of the road, but was pulled over toward the curb.

The Appellant filed a motion to suppress asserting that there was no lawful basis for an investigatory 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

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. All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court's ruling. 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); Newkirk v. State, 964 So2d 861, 863 (Fla. 2^nd DCA 2007).

Involved Points of Law

1. Stops Pursuant to a BOLO. Several factors are relevant in assessing the legitimacy of a vehicle stop pursuant to a directive that officers “be on the look out”, a (BOLO): (1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information. Hunter v. State, 660 So2d 244, 249 (Fla. 1995).

2. Investigatory Stops. 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.

3. 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 ----, 33 Fla. L. Weekly S662, 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 police officer acted promptly and within five minutes, while proceeding to the reported area, came upon the exact vehicle described in the 911 call. Corporal Faulk’s observations of the vehicle stopped in the roadway, with brake lights on, for no apparent reason at 2:30 a.m. with the sound of what he thought was a female scream coming from the car corroborated and reinforced a concern about the vehicle and provided sufficient indicia of reliability to the original 911 call. It was reasonable and proper that the officer approach the vehicle to investigate. The totality of all of these circumstances provided a reasonable suspicion to support an investigatory stop.

4. 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 Corporal Faulk did not enter any private premise. He happened upon a vehicle stopped in a public roadway, with brake lights on, for no apparent reason at 2:30 a.m. and thought he heard a female scream coming from the car. He stopped behind the car and activated his rear flashers “so that I wouldn’t be rear-ended” and walked up to the car to investigate. Appellant, in her briefs, argues that the use of flashing emergency lights constitutes an investigatory stop. None of the cases cited by Appellant involve a situation of a vehicle already stopped in a public roadway when an officer happens on the scene. The Appellant’s vehicle was not pulled off the side of the road, stopped in a driveway or a parking lot. It was stopped in the road. An officer seeing this would be reasonably expected to stop, activate his emergency flashing lights for the safety of himself and other motorists, and investigate the situation to see if help or assistance was needed. There was no traffic stop. Ms. Hoopingarner had stopped her vehicle prior to any contact or involvement with the police. Considering the totality of the circumstances, Corporal Faulk’s initial contact with Ms. Hoopingarner was not otherwise an investigatory stop or seizure. It was a “welfare check” or police-citizen encounter. See Greider v. State, 977 So2d 789 (Fla. 2^nd DCA 2008).

Conclusion

The factual findings of the trial court were supported by competent, substantial evidence. As set forth above, first, Corporal Faulk’s initial contact with Ms. Hoopingarner was not an investigatory stop. Second, even if the original contact was a stop, the original anonymous tip, as corroborated by the independent observations of Corporal Faulk, was sufficiently reliable to establish the reasonable suspicion required for a stop. 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 ___ day of October, 2008.

_____________________________

Michael F. Andrews Circuit Court Judge

_____________________________

Raymond O. Gross

Circuit Court Judge

____________________________

R. Timothy Peters

Circuit Court Judge

cc: Honorable James V. Pierce

Thomas M. McLaughlin, Esquire

Office of the State Attorney

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[1] Appellant states in her Reply Brief that “the police officer testified that his rear flashers were located on the top of his patrol car” and cites to pages 59 and 60 of the record. There is no testimony in the record that the “rear flashers” were located on the top of the patrol car.