County
Criminal Court: CRIMINAL LAW — Search & Seizure —
Stop — Officer had probable cause to stop defendant when two citizens had approached
officer concerned about defendant driving while intoxicated. Trial court’s order granting motion to
suppress is reversed.
State of Florida v. Joseph John
Ruwell, No.
08-02772-CFAWS (Fla. 6th Cir. App. Ct. December 30, 2009).
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 PASCO COUNTY
APPELLATE DIVISION
STATE OF FLORIDA,
Appellant,
UCN: 512008CF002772A000WS
v. Case
No: 0802772CFAWS
Lower
No: CTC07108502XTWS
JOSEPH JOHN RUWELL,
Appellee.
____________________________/
Appeal
from an Order Granting
Motion
to Suppress
Entered
by Pasco County Court
County
Judge Marc H. Salton
Bryan Sarabia, A.S.A.
for Appellant
Hans M.
Grieble, Esq.
for Appellee
ORDER AND OPINION
The State appeals a County Court’s
order granting Appellee’s Motion to Suppress. The issue on appeal is whether two citizens’
report of criminal activity is legally sufficient to create a reasonable
suspicion forming the basis to make an investigatory traffic stop. We find that it is. This Court reverses the trial court’s order
as set forth below.
FACTUAL BACKGROUND AND TRIAL
COURT PROCEEDINGS
On August 9, 2007, at about 11
o’clock at night, two women in a car approached Deputy Gary Carmen of the Pasco
County Sheriff’s Office. The women told Deputy
Carmen that they were extremely concerned about a man who was at a nearby gas
station, standing by a red pick-up truck.
The women pointed to Appellee at his vehicle,
which was the only red pick-up truck at the gas station. Deputy Carmen saw Appellee
getting into his truck, while the women were telling him their story. The women reported that the man had staggered
as he approached them, and he was definitely drunk. The women further reported that Appellee had a strong odor of alcohol and told them to “be
careful because the cops were over there,” as he pointed to Deputy Carmen’s
vehicle. Deputy Carmen concluded that the
women were likely gas station customers and were genuinely concerned about the
man driving in his condition. Deputy
Carmen did not have enough time to get the women’s names before Appellee began driving out of the gas station.
Deputy Carmen was concerned that Appellee might be impaired.
As Appellee pulled into the adjacent parking
lot, Deputy Carmen drove in his direction.
Deputy Carmen did not initially get directly behind Appellee’s
truck. Appellee
drove down one of the parking lot lanes, but did not swerve. As Deputy Carmen approached, Appellee stopped his truck and started backing toward where
Deputy Carmen was heading. Deputy Carmen
found Appellee’s actions improper and unusual
behavior. Appellee
backed through several parking spaces, not just one. Appellee could not
have been trying to park or take another route.
Deputy Carmen stopped his car, activated his lights, and initiated a
traffic stop.
Deputy Carmen initiated the traffic stop based
on the improper backing and the women’s statements. Although Deputy Carmen did not issue a
citation for improper backing, he believed that Appellee
did back improperly. Appellee
told him that he had consumed two beers.
Deputy Carmen charged him with Driving Under
the Influence.
At
trial, in finding that Deputy Carmen had no lawful basis to stop Appellee’s truck, the court granted Appellee’s
motion to suppress the evidence gained from the stop. The State argues that the stop was lawful.
STANDARD
OF REVIEW
In
reviewing a motion to suppress, an appellate court must defer to the trial
court’s factual findings, where they are supported by
substantial, competent evidence; however, legal conclusions are reviewed de novo.
Connor v. State, 803 So. 2d 598 (Fla. 2001); State v. Rudy, 974 So. 2d 1164, 166 (Fla. 4th DCA 2008).
LAW
AND ANALYSIS
An
officer may temporarily detain an individual if the officer has a reasonable, articulable suspicion that the individual has committed, is
committing, or is about to commit a crime.
Terry v. Ohio, 392 U.S. 1 (1968); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).
"'Reasonable suspicion' is a less demanding standard than that for
probable cause, and 'considerably less than proof of wrongdoing by
preponderance of the evidence.'" State v. Gonzalez,
682 So. 2d 1168, 1170 (Fla. 3d DCA 1996). An officer, therefore, may detain a person in
an investigatory stop when that officer has a reasonable suspicion, supported
by articulable facts, that criminal activity may be
taking place. Id.
A
tip’s reliability varies based upon whether it is truly anonymous or offered by
a citizen informant, who approaches the police in person to report criminal
activity. A tip from a citizen informant
is deemed more reliable than an anonymous tip. Baptiste v. State, 995 So. 2d
285, 292 (Fla. 2008); State v. Maynard, 783 So. 2d 226, 228 (Fla. 2001).
A citizen informant is one who is not motivated by pecuniary gain, but
to further justice, while an anonymous tipster’s motivation and veracity is
unknown. Florida v.
J.L., 529 U.S. 266, 270 (2000); State v. Maynard, 783 So. 2d 226, 229 (Fla. 2001); State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997). Face-to-face anonymous tips are presumed inherently more reliable than an anonymous
telephone tip, as the officers receiving the information can better observe the
demeanor and perceive the credibility of the informants. United States v. Heard,
367 F.3d 1275, 1279 (11th Cir. 2004); J.P.N. v. State, 931 So. 2d 1066, 1068 (Fla. 4th DCA 2006). Furthermore, a witness who approaches the
police in person may subject herself to potential retaliation from the subject,
thereby rendering the tip more reliable than an anonymous tip. See United
States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000).
In
this case, the two women risked approaching the police officer in person within
Appellee’s sight.
Deputy Carmen observed their demeanor and credibility. He testified that the women appeared
extremely and genuinely concerned for Appellee’s
safety. Their names needed
not actually have been known, since their identity was readily
discoverable. See
State v. Evans, 692 So2d 216, 219 (Fla. 4th DCA 1997). Had it not been for the exigency of Appellee driving away, Deputy Carmen could have readily
obtained their names or license tag number. Carattini
v. State, 774 So. 2d 927, 930 (Fla. 5th DCA 2001).
This
case is analogous to Carattini v. State,
774 So. 2d 927 (Fla. 5th DCA 2001), where an unidentified woman approached an
officer reporting that three men had just run out of Dillard’s carrying a
duffle bag full of the store’s clothes.
The woman pointed out the vehicle that the men were getting into. The car began driving off, so the officer
contacted other law enforcement officers and provided a partial tag number,
description of the car, and direction of travel. The officer left the woman to assist the
other officers. The officer did not know
the female informant or her name. When
the first officer returned to the store, the woman had left. The Fifth District found
this scenario distinguishable from the majority of anonymous tip cases because
(a) the woman made a face-to-face report to the officers; (b) the woman’s
observations were based on her eyewitness account of an apparent crime in
progress; (c) the officer conducted his own investigation by having the woman
point out the people she was referring to; and (d) the exigencies of the
situation did not allow the officer to ascertain the woman’s identity. Carattini, at 930. The court stated
that, “it would be an absurd result to require an officer to obtain identifying
information from an eyewitness informant to a crime in progress when [the
officer] is immediately needed to assist in apprehending the suspects.” Id. at 930.
Here,
as in Carattini, the informants made a
face-to-face report to the officer based on their observations of an apparent
crime in progress, the women pointed directly to the suspect, and the exigency
did not allow the officer time to identify the women. This Court agrees with the reasoning in Carattini, and the many cases approving the
temporary detention of individuals, in that the Fourth Amendment does not
require an officer who lacks the precise level of information necessary for
probable cause to arrest to simply shrug his shoulders and allow a crime to
occur or a criminal to escape. Rather, Terry
v. Ohio, supra, recognizes that it may be the essence of good police
work to immediately respond. A brief stop of a suspicious individual to
determine his identity or maintain status quo momentarily
while gathering more information, may be most reasonable in light of the facts
known to the officer at the time. Adams v. Williams, 407 U.S. 143 (1972). As such, Deputy Carmen reasonably relied on the
women’s information during their face-to-face encounter and his own
corroboration of some of that information, as this provided the requisite
founded suspicion to stop Appellee. It would have been absurd to require the
officer to waste time verifying the women’s identities, while Appellee drove off, potentially putting himself
and others on the road at risk.
The
trial court, however, determined that Deputy Carmen violated Appellee’s Fourth Amendment rights by conducting the
traffic stop, reasoning that, since Deputy Carmen’s information was received from informants, their veracity, reliability,
and basis of knowledge were critical in establishing the reasonable suspicion
required for the stop. The trial court’s
reasoning was primarily based on its
mischaracterization of the women as mere anonymous tipsters. The facts supported by substantial, competent
evidence indicated that the women were more properly
categorized as citizen informants.
Therefore, the source of the information was more reliable than the
trial court found and was sufficient alone to form a reasonable suspicion to
stop Appellee.
As such, whether Appellee improperly backed
his truck was irrelevant. The motion to
suppress should have been denied.
CONCLUSION
Appellee’s Motion
to Suppress was improperly granted based on a
misapplication of the law. Based on the
totality of the circumstances, and the reliability of the citizen informants,
Deputy Carmen had the requisite reasonable suspicion to initiate the traffic
stop. Therefore, it is
ORDERED
AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is REVERSED, and this case is
REMANDED for proceedings consistent with this opinion.
DONE
AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 30th
day of December 2009.
Original
order entered on December 14, 2009 by Circuit Judges W. Lowell Bray, Jr.,
Daniel D. Diskey, and Stanley R. Mills.