Jerry Weakley v. State of Florida , 273 So. 3d 283 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2727
_____________________________
JERRY WEAKLEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
June 7, 2019
WINOKUR, J.
A nighttime 911 call from a small, five-mobile-home area at
the end of a dirt road reported a suspicious person on a motorcycle
walking around a foreclosed home nearby. The caller believed the
person might be committing a burglary, but, in the dark of the
night, could not provide any additional details and then refused to
disclose his or her identity. Two officers responded within minutes,
driving down the empty road to the group of mobile homes. Before
they got there, Jerry Weakley approached heading in the opposite
direction on a motorcycle before aggressively accelerating and
veering into the shoulder of the road in an attempt to flee past the
officers. Based on the motorcyclist’s behavior and the nature of the
report, the officers stopped Weakley, discovered the motorcycle to
be stolen, and found various articles of contraband. Weakley
moved to suppress the contraband, but the trial court found the
officers had reasonable suspicion to stop him. Weakley entered a
plea to four charges, reserving the right to appeal the denial of his
motion to suppress, which he now does. Because we find that
Weakley has not met his burden of proving the trial court’s ruling
incorrect, we affirm. 1
A stop is justified when an officer observes facts giving
rise to a reasonable and well-founded suspicion that
criminal activity has occurred or is about to occur. In
turn, whether an officer’s well-founded suspicion is
reasonable is determined by the totality of the
circumstances that existed at the time of the
investigatory stop and is based solely on facts known to
the officer before the stop.
C.E.L. v. State, 24 So. 3d 1181, 1186-89 (Fla. 2009) (citations
omitted) (holding that flight from the police in a high-crime area
satisfied reasonable suspicion).
In Baptiste v. State, 995 So. 2d 285, 288, 293 (Fla. 2008), an
anonymous caller reported a man’s alleged criminal activity and
responding officers detained the man without observing “any
illegal activity, unusual conduct, or suspicious behavior.” The
supreme court found that the officers lacked reasonable suspicion.
While the Court acknowledged that an anonymous tip alone
generally does not provide reasonable suspicion for a stop, it made
sure to note that anonymous tips could “provide reasonable
suspicion under a totality-of-the-circumstances analysis” in
certain cases, such as when an officer makes “subsequent
observations of a suspect who matches the description given.” Id.at 296-97 (citing United States v. Gooden, 273 F.3d 1100, 1100 (5th
Cir. 2001) (unpublished opinion), as holding that “even where the
anonymous tip alone failed to establish reasonable suspicion, the
1 “The ruling of the trial court on a motion to suppress comes
to us clothed with a presumption of correctness and we must
interpret the evidence and reasonable inference and deductions in
a manner most favorable to sustaining the trial court’s ruling.”
Presley v. State, 204 So. 3d 84, 86-87 (Fla. 1st DCA 2016) (quoting
Johnson v. State, 608 So. 2d 4, 9 (Fla. 1992)).
2
fact that the suspect reached for his waistband upon seeing officers
provided reasonable suspicion for initiation of a Terry stop”). The
supreme court continued, stating that “nervous behavior of a
suspect upon the approach of an officer, when considered in
conjunction with a purely anonymous tip, may under the totality
of the circumstances establish reasonable suspicion for an
investigative stop.” Id. at 297 (discussing United States v. Sims,
296 F.3d 284, 285-87 (4th Cir. 2002), and noting that neither the
anonymous tip nor the suspect’s nervous and evasive behavior
would have independently justified a search, but did so when
considered together). Additionally, the “court may consider ‘the
time of day, the day of the week, the location, the physical
appearance and behavior of the suspect, the appearance and
manner of operation of any vehicle involved or anything
incongruous or unusual in the situation as interpreted in light of
the officer's knowledge.’” Jenkins v. State, 685 So. 2d 918, 920 (Fla.
1st DCA 1996) (quoting Gipson v. State, 537 So. 2d 1080, 1081 (Fla.
1st DCA 1989)).
Considering the totality of the circumstances, and by
interpreting the evidence in the manner most favorable to
sustaining the trial court’s ruling, we conclude that the officers had
reasonable suspicion to stop Weakley. A caller reported an
unknown individual on a motorcycle walking around an
abandoned home one night and believed a burglary might be
occurring. Officers quickly responded to the very secluded area
down a dirt road in the dark and found a motorcycle approaching.
Rather than calmly stop or pull to the side of the road so the
officers could pass, Weakley aggressively veered to pass the
officers and flee. Cf. Baptiste, 995 So. 2d at 296-97; Tobin v. State,
146 So. 3d 159, 161-63 (Fla. 1st DCA 2014) (finding no reasonable
suspicion where the anonymous calls were not corroborated by
suspicious activity as the appellant was stopped when simply
leaving the property).
In finding the stop unconstitutional, the dissent makes two
mistakes. First, it considers the various indicia of suspicion
individually, discounting separately the anonymous call about
Weakley lurking around the vacant trailer and his later attempt
to evade police. But the Supreme Court recently noted that “the
whole is often greater than the sum of its parts—especially when
3
the parts are viewed in isolation” and faulted a lower court for
viewing each fact in isolation, as the “totality-of-the-circumstances
test ‘precludes this sort of divide-and-conquer analysis.’” 2 District
of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (quoting United
States v. Arvizu, 534 U.S. 266, 274 (2002)). Applying this rule from
Wesby and Baptiste, Weakley’s flight from the police works in
conjunction with the report that he may have just committed or
attempted a burglary. Second, having determined that neither the
anonymous call nor flight was independently sufficient, the dissent
concludes that Weakley’s flight was not really a flight, but the
expected behavior of an approaching motorist, and could not
contribute to the reasonable-suspicion analysis. But the officers
testified that Weakley’s driving was aggressive and indicative of
an attempt to flee, and the trial court found that Weakley
attempted to flee. The dissent improperly dismisses the trial
court’s finding and fails to interpret the evidence in the light most
favorable to affirmance, as we must. See Presley, 204 So. 3d at 86-
87. The dissent also repeatedly notes that Weakley was not
arrested or cited for a traffic violation for fleeing from police. But
conduct does not need to be illegal (or acted upon if so) to be
suspicious. The Supreme Court explained that “the relevant
inquiry is not whether particular conduct is innocent or guilty, but
the degree of suspicion that attaches to particular types of
noncriminal acts.” Wesby, 138 S. Ct. at 588 (quoting Illinois v.
2 The Supreme Court specifically held in Wesby that the lower
court erred in isolating the questionable circumstances of a group
of people found in a vacant home from their subsequent flight from
police:
Instead of considering the facts as a whole, the panel
majority took them one by one. For example, it dismissed
the fact that the partygoers “scattered or hid when the
police entered the house” because that fact was “not
sufficient standing alone to create probable cause.”
Similarly, it found “nothing in the record suggesting that
the condition of the house, on its own, should have alerted
the [partygoers] that they were unwelcome.”
Wesby, 138 S. Ct. at 588 (citations omitted).
4
Gates, 462 U.S. 213, 244 n.13 (1983)). It is thus irrelevant that, as
the dissent points out, “no criminal charges or traffic violations
were lodged against Weakley, other than the possession charges
that arose from his detention.” Dissenting op. at 7. We do not need
to decide if Weakley’s flight may have violated any laws in itself,
nor did the officers. 3 It was reasonable to conclude that Weakley
attempted to flee when officers approached and that this flight was
suspicious in light of the report of a suspected burglary. See Wesby,
138 S. Ct. at 587 (“‘[U]nprovoked flight upon noticing the police,’
we have explained, ‘is certainly suggestive’ of wrongdoing and can
be treated as ‘suspicious behavior’ that factors into the totality of
the circumstances. . . . In fact, ‘deliberately furtive actions and
flight at the approach of . . . law officers are strong indicia of mens
rea.’” (quoting Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000),
and Sibron v. New York, 392 U.S. 40, 66 (1968))). 4
Finding no error in the trial court’s findings, we agree that the
totality of the circumstances shows that the officers had
3 The same is true regarding the failure of the 911 caller to
specifically identify a crime that was occurring or had occurred. As
Wesby notes, conduct does not necessarily have to be criminal to
warrant investigation under the reasonable suspicion standard.
This has long been part of Fourth Amendment jurisprudence. See,
e.g., Reid v. Georgia, 448 U.S. 438, 441 (1980) (holding that “there
could, of course, be circumstances in which wholly lawful conduct
might justify the suspicion that criminal activity was afoot”).
4 We also reject the dissent’s implication that the tip could not
factor into the reasonable-suspicion analysis because it did not
provide a description of Weakley’s physical characteristics. A
description of an individual with a motorcycle in a very secluded
area down a dirt road at night could provide at least as specific of
a description as identifying the race and clothing of someone in a
public place like a grocery store. Cf. Baptiste, 995 So. 2d at 288(“anonymous caller had reported that a black male wearing a white
T-shirt and blue-jean shorts had waved a firearm in front of a
grocery store”).
5
reasonable suspicion to stop Weakley following his attempted
flight. 5 We AFFIRM his convictions.
WINSOR, J., concurs; MAKAR, J. dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., dissenting.
Lowering the bar in this Fourth Amendment anonymous tip
case is a limbo dance I cannot join.
Responding to a mid-evening anonymous call about someone
pulling up on a motorcycle and walking near a vacant home in a
mobile home neighborhood in rural Leon County, Florida, two
sheriff’s officers separately drove to the area down a narrow, unlit,
and bumpy “two-rut” road (Comet Drive). The anonymous caller
refused to be identified, gave no physical characteristics of the
person (e.g., gender, race, height/weight) or the motorcycle (e.g.,
make, size, color), saw no criminal activity, and expressed only a
generalized concern that a burglary might be in the works. When
an approaching motorcycle’s headlight came into view, 1 the
officers—without their blue lights on—continued to drive slowly
5 Because we find the officers had reasonable suspicion for the
stop, we do not address the State’s alternative argument the
contraband would have been discovered inevitably.
1 The mischaracterization in the majority opinion that
“Weakley [was] lurking around the trailers” and “was suspected of
burglary” has no evidentiary support. The anonymous caller
provided no description of the person including gender (so who’s to
say it was Weakley?) didn’t say the person was “lurking” (the
person was merely “walking” near the home) and saw no burglary
or other illegal conduct (expressing only generally that something
might be afoot).
6
(10-15 mph) forward until the motorcycle turned into a small
bypass area where, when two vehicles meet, one gets out of the
way. At that moment, the first officer—believing the motorcyclist
might be taking flight—activated his vehicle’s blue lights, exited
the vehicle, and immediately detained and began questioning the
driver, Jerry Weakley, who was simultaneously blocked in by the
second officer’s closely trailing squad car, which was just “a few
feet” behind. Weakley—detained within seconds—made no
attempt to flee. The officers ran the motorcycle’s license plate,
determined it was reported as stolen, and—after searching
Weakley—arrested him for possession of a firearm by a felon, for
possession of paraphernalia, and for theft of the motorcycle (the
latter charge was later dropped due to lack of a good faith basis to
prosecute). No burglary, trespass, or any other criminal activity
was discovered in the neighborhood, and no criminal charges or
traffic violations were lodged against Weakley, other than the
possession charges that arose from his detention.
Weakley pleaded guilty to the possession charges and appeals
the denial of his motion to suppress, which argued that his
physical detention, search, and questioning were illegal because
the tipster’s call was anonymous, provided no physical features or
characteristics of the person or the motorcycle, and lacked
reliability or corroboration (no effort was made to contact the
caller). Neither the caller nor the officers observed any behavior
that could form the basis for a well-founded and reasonable
suspicion that Weakley had or was about to commit a crime. The
trial court denied the motion, a ruling that on appeal presents a
mixed question of fact and law: the former receives deference while
the latter requires the independent application of the
constitutional standard (i.e., de novo review). Ornelas v. United
States, 517 U.S. 690, 699 (1996) (holding that “as a general matter
determinations of reasonable suspicion and probable cause should
be reviewed de novo on appeal.”); Majors v. State, 70 So. 3d 655,
659 (Fla. 1st DCA 2011) (“A trial court’s factual findings
supporting a motion to suppress are reviewed to determine
whether they are grounded in competent, substantial evidence,
and its legal conclusions are reviewed de novo. . . . whether
reasonable suspicion exists for a detention under a specific set of
facts is a question of law to be reviewed de novo.”).
7
The Fourth Amendment and its Florida counterpart establish
the “right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures”
absent a warrant or a judicially-recognized exception. U.S. Const.
amend. IV; FLA. CONST. art. I, §12 (requiring that this “right shall
be construed in conformity with the 4th Amendment to the United
States Constitution, as interpreted by the United States Supreme
Court.”). No dispute exists that Weakley was seized without a
warrant, leaving only the question of whether the State met its
burden to establish that the “investigatory detention” exception
applies in this case. Florida v. Royer, 460 U.S. 491, 500 (1983) (“It
is the State’s burden to demonstrate that the seizure it seeks to
justify on the basis of a reasonable suspicion was sufficiently
limited in scope and duration to satisfy the conditions of an
investigative seizure.”)
In accord with Supreme Court precedent, our supreme court
has held that “a police officer may reasonably detain a citizen
temporarily if the officer has a reasonable suspicion that a person
has committed, is committing, or is about to commit a crime.” See
Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (citing Terry v.
Ohio, 392 U.S. 1 (1968) (holding that reasonable suspicion requires
more than a “hunch” about possible criminal activity)). To avoid a
Fourth Amendment violation, “an investigatory stop requires a
well-founded, articulable suspicion of criminal activity. Mere
suspicion is not enough to support a stop.” Popple, 626 So. 2d at
186; see also § 901.151 Fla. Stat. (1991).
To justify an investigative detention, a law enforcement
officer must have a reasonable suspicion that a person has
committed or is about to commit a crime. . . . A hunch or
a mere suspicion is not enough. As the Florida courts have
explained, the officer must be able to articulate the
supporting facts, and the suspicion must be well-founded.
Faunce v. State, 884 So. 2d 504, 506 (Fla. 1st DCA 2004) (emphases
added). The quantity and quality of information are key in
assessing reasonable suspicion, which “is dependent upon both the
content of information possessed by police and its degree of
reliability. Both factors—quantity and quality—are considered in
the ‘totality of the circumstances—the whole picture,’ . . . that
8
must be taken into account when evaluating whether there is
reasonable suspicion.” Alabama v. White, 496 U.S. 325, 330 (1990)
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)); see also
Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming the use of
“the totality-of-the-circumstances analysis that traditionally has
informed probable cause determinations.”).
The two-step process for assessing the constitutionality of an
investigatory stop requires, first, the identification of the
“historical facts” leading up to the search and, second, whether
these facts, “viewed from the standpoint of an objectively
reasonable police officer, amount to reasonable suspicion” of
criminal activity to justify a stop. Ornelas, 517 U.S. at 696. The
second step—application of an objective standard—presents a
“mixed question of law and fact.” Id. Reasonableness “is measured
in objective terms by examining the totality of the circumstances,”
Ohio v. Robinette, 519 U.S. 33, 39 (1996), with the subjective
intentions of the officers playing no role, Whren v. United States,
517 U.S. 806, 813 (1996).
The dispositive issue is whether the limited information the
officers had from the anonymous call plus Weakley’s conduct meets
the constitutional standard for an investigatory detention, i.e.,
whether the detaining officers had a well-founded and reasonable
suspicion that the approaching motorcyclist had committed or was
about to commit a crime that justified his immediate detention.
Put another way, what crime did the officers reasonably believe
the oncoming motorcyclist had committed to justify immediate
detention? The unverified anonymous tip and motorcyclist’s
conduct viewed collectively and objectively fail to show a well-
founded basis to reasonably suspect that the motorcyclist had
committed a crime for which immediate investigatory detention
was permissible.
Unlike cases involving reliable and detailed information from
known tipsters buttressed by police observations that corroborate
or independently observe potential criminal conduct, the totality
of the evidence in this case is skimpy: a bare-bones anonymous tip
plus the perceived flight of an approaching motorcyclist. To begin,
an anonymous tip must be closely scrutinized for reliability
because “[u]nlike a tip from a known informant whose reputation
9
can be assessed and who can be held responsible if her allegations
turn out to be fabricated, . . . ‘an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity[.]’”
Florida v. J.L., 529 U.S. 266, 270 (2000) (citation omitted). Unlike
information from reliable and verifiable third parties, upon which
officers can rely, an anonymous tip falls at the lower spectrum of
reliability and is accorded little to no weight. Baptiste v. State, 995
So. 2d 285, 292 (Fla. 2008) (“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.”).
The anonymous call here is at the bottom of the reliability
index. The caller refused to be identified and, indeed, was never
contacted, remaining unknown and nameless today. The
information provided was generic and overly vague. No description
was given of the person or the motorcycle, no crime or illegal
activity was observed (or ultimately discovered), and the
anonymous caller expressed only a hunch that something
suspicious may be afoot.
The record does not include audio or a transcript of the
anonymous call, but it was essentially no more informative than
the following hypothetical call:
Anonymous Caller: Someone just drove a motorcycle up
to my neighbor’s home. They’re on vacation.
Police Operator: Can you describe the motorcycle or its
driver?
Anonymous Caller: No.
Police Operator: Did you see any criminal activity?
Anonymous Caller: No, but I’m concerned about a
burglary or something.
Police Operator: Thank you.
10
Anonymous calls of this type lack meaningful details for police
officers to corroborate as to the vehicle, its driver, or suspected
criminal activity. It provides nothing more than a highly
speculative hunch, and nothing reliable upon which to conclude,
that a crime was in progress or about to occur, let alone that the
motorcyclist was the perpetrator. As the Supreme Court stated in
its unanimous opinion in J.L.:
An accurate description of a subject’s readily observable
location and appearance is of course reliable in this
limited sense: It will help the police correctly identify the
person whom the tipster means to accuse. Such a tip,
however, does not show that the tipster has knowledge of
concealed criminal activity. The reasonable suspicion here
at issue requires that a tip be reliable in its assertion of
illegality, not just in its tendency to identify a
determinate person. Cf. 4 W. LaFave, Search and Seizure
§ 9.4(h), p. 213 (3d ed.1996) (distinguishing reliability as
to identification, which is often important in other
criminal law contexts, from reliability as to the likelihood
of criminal activity, which is central in anonymous-tip
cases).
529 U.S. at 272 (emphases added). As the accentuated language
makes clear, an anonymous tip must (a) reliably identify a
“determinate person” and (b) reliably provide a reasonable
suspicion as to the likelihood of criminal activity.
Neither of these facets of reliability for assessing anonymous
sources—reliability as to a subject’s readily observable appearance
and reliability as to the assertion of criminal activity—is met in
this case. The former obviously is not met because the caller
couldn’t even say whether the subject was a man or woman and
couldn’t describe the motorcycle. As to the latter facet, at the time
Weakley was detained, the officers “did not have knowledge of any
facts relating to a specific criminal offense” to support detaining
him. Hill v. State, 51 So. 3d 649, 651 (Fla. 1st DCA 2011). The
anonymous caller didn’t see illegal activity and merely fretted that
a burglary might be taking place; no burglary or other criminal
activity was observed and, indeed, no burglary or other criminal
activity was shown to have occurred. As such, the anonymous call
11
was both quantitatively and qualitatively lacking as to specifics
and reliability. Alabama, 496 U.S. at 330.
Because the anonymous call had a “relatively low degree of
reliability,” “more information will be required to establish the
requisite quantum of suspicion than would be required if the tip
were more reliable.” Id. The only additional information is the
officer’s belief that the approaching motorcyclist may have been
attempting to flee the area, which objectively doesn’t move the
“totality of the circumstances” needle enough to justify an
immediate, split-second detention. Armed with threadbare
anonymous information, the officers had nothing reliable upon
which to base their immediate stop of the motorcyclist as he
approached, hemming him in and stopping his movement
instantly. They had no reliable information that any crime, let
alone a specific crime, had occurred that justified detention.
Majors, 70 So. 3d at 659. At best, one officer characterized
Weakley’s turn into the bypass area as “veering” in an “aggressive”
way that made him believe Weakley might be attempting to “flee”
the area. This belief is too slender a reed upon which to lower the
bar to permit immediate detention under the Fourth Amendment,
see, e.g., Hill, 51 So. 3d at 651 (“reasonable suspicion of criminal
activity is not established simply because a defendant leaves the
scene when an officer nears.”), and doesn’t transform the
anonymous caller’s speculative and unsubstantiated surmise into
a well-founded basis to believe that the motorcyclist had just
committed some unspecified and unseen crime.
Plus, at the fleeting moment when the approaching
motorcyclist veered into the bypass shoulder, even if to flee the
area, what specific crime did the officers have a well-founded and
reasonable basis to believe the motorcyclist had committed?
Answer: None. As in J.L., the officers had no reason to suspect the
approaching motorcyclist of illegal conduct other than pure
speculation based on the sketchy anonymous tip. 529 U.S. at 268(“Apart from the tip, the officers had no reason to suspect any of
the three [juveniles] of illegal conduct.”). The anonymous caller
saw no illegal conduct and the officers admitted that they saw no
illegal conduct or traffic infractions, making it all the more
attenuated to conclude that a well-founded reasonable suspicion
existed that a crime had occurred. See also Majors, 70 So. 3d at 660
12
(“officers’ inability to point to facts that suggested a particular
crime had occurred, was occurring, or was about to occur” weighs
“against a conclusion that reasonable suspicion existed.”).
Presented with anonymously-provided and exceedingly-slim
information, the officers had no objective basis upon which to form
a well-founded, reasonable suspicion that any crime had occurred,
let alone that the approaching motorcyclist was the culprit. Apart
from the anonymous tip, the officers lacked any reason to suspect
the motorcyclist of illegal conduct, making the stop
unconstitutional. See J.L., 529 U.S. at 268.
Importantly, nothing establishes that Weakley knew the
approaching vehicle was a police car, whose blue lights had not
been activated, making it pure speculation that he was fleeing
from the police. Moreover, even accepting the officer’s subjective
belief that Weakley was attempting to flee, and that Weakley knew
he was fleeing from approaching police vehicles, it was not the type
of “headlong” and “unprovoked flight” from police in a high crime
area that ramps up the reasonable suspicion meter. Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (“presence in an area of heavy
narcotics trafficking” plus “unprovoked flight upon noticing the
police” supported a finding of reasonable suspicion); C.E.L. v.
State, 24 So. 3d 1181 (Fla. 2009) (investigatory detention
permissible where juvenile’s continued flight from officers was in
a high-crime area and in defiance of a police officer’s order to stop);
Majors, 70 So. 3d at 660 (“Typically, flight from the police justifies
a stop when it is unprovoked and occurs in a high-crime area.”). No
evidence suggests that the handful of mobile homes in rural Leon
County was a “high crime” area, and 9:30 pm is not a particularly
crime-suspicious time of day (versus, say, 4:00 am. like in Cooks v.
State, 28 So. 3d 147 (Fla. 1st DCA 2010)). Motorcycles coming and
going from mobile homes mid-evening are not unusual or
suspicious events, at least not in Florida; turning into a small
bypass area on a narrow road, even if subjectively described as
“aggressive,” isn’t unusual or unexpected and is not an objective
basis for automatically stopping a motorist where no reliable
information of a crime is possessed. Veering isn’t a crime or even a
traffic infraction, as the officer admitted; it is exactly what would
be expected of any oncoming vehicle under the circumstances.
After all, the officer described the bypass as “an area where, when
two vehicles met, one of them would get up on the shoulder.”
13
In summary, the evidence fails to objectively establish a well-
founded and reasonable suspicion that the oncoming motorcyclist,
Weakley, had just committed a crime that justified his detention.
His seizure was based on pure speculation without a well-founded
and reasonable suspicion that any crime had occurred. No crime
was observed by the anonymous caller or the police officers, no
crime was reported, and no crime was discovered; all that existed
was the unsupported speculative hunch. The majority cannot
identify a well-founded factual basis for what crime was allegedly
committed that would justify immediate physical detention of an
approaching (or even fleeing) motorcycle; the anonymous caller’s
hunch was that a burglary might be afoot, but one could speculate
as to almost any property crime being a possibility (arson, larceny,
motor vehicle theft, vandalism, etc.), thereby demonstrating the
unreasonableness of detention. 2
No case remotely supports the majority’s holding on the facts
presented. That’s because the benchmark applied in this case is
lower than any this Court (or the United States Supreme Court or
our supreme court) has applied in other similar investigatory
detention cases; indeed, it falls below the benchmark set in three
citizen informant cases (i.e., cases where information provided is
deemed more reliable than anonymous tips) from this Court. For
instance, in Cooks, a 4:00 am report of suspicious activity was
made by a hotel clerk (“Glenda”) that a black male—who was with
three other black males in a maroon four-door vehicle, possibly a
2 The officers couldn’t conduct an investigatory detention for
suspected trespass because Weakley had not been previously
issued a no-trespass warning as to the property. Moore v. State,
200 So. 3d 1290, 1292 (Fla. 2d DCA 2016) (no legal authority to
conduct an investigatory stop for trespass unless the potential
trespasser has been previously warned by the property’s owner or
agent); Gestewitz v. State, 34 So. 3d 832, 834 (Fla. 4th DCA 2010)
(same); see also D.T. v. State, 87 So. 3d 1235, 1241 (Fla. 4th DCA
2012) (“Mere presence on the property is insufficient to give rise to
a reasonable suspicion of trespass and a reasonable suspicion of
trespass must be based upon something more than ‘a mere hunch
or guess.’”) (quoting Rochell v. State, 934 So. 2d 586, 586 (Fla. 1st
DCA 2006)).
14
Lincoln—was trying to open the back door of the hotel. 28 So. 3d
at 148. The clerk told them to leave and, fearing for her safety,
called the sheriff’s office. “En route to the hotel, the deputy saw a
car matching the description in the [dispatch] report. The deputy
turned behind it and stopped the car. [Cooks] was driving and
there was one other person in the car.” Id. Cooks was detained,
drugs were found in the car and in his jacket, and his motion to
suppress challenging the constitutionality of the investigatory stop
was denied.
This Court reversed, concluding that although the hotel clerk,
Glenda, was a “citizen informant” whose information is accorded
greater reliability and weight, the detailed information she
provided failed to “create a reasonable suspicion that [Cooks] (or
anyone else) had committed, was committing, or would commit a
crime.” Id. at 150.
According to the deputy’s testimony, the hotel clerk told
the dispatcher that a black man tried to open the back
door of the Blue Angel Inn about an hour before she
called, that the man left in a maroon Lincoln, and that
there were a total of three black men in the car. Assuming
all of this is true . . ., it is difficult to see how this forms a
reasonable suspicion that [Cooks] had committed, was
committing, or would commit a crime. Even the deputy
did not know what crime had been committed; he was on
his way to “ascertain” just that.
The deputy testified that he felt there might have been a
trespass or attempted burglary, but the state makes no
real attempt to argue that trying the back door to a hotel
and then leaving rises to the level of those crimes, and it
is noteworthy that [Cooks] was not charged with any
offense related to the suspicious activity reported by the
hotel clerk. Even if, as the police report states, the hotel
clerk was afraid that the men she saw may have been
trying to see whether she was alone for purposes of
robbing her, the clerk's “hunch” about the men’s intention
(which apparently was not correct because the men left
and no robbery occurred) was not enough to establish a
reasonable suspicion that would justify the stop.
15
Id. (emphasis added). Because “the tip was not reliable ‘in its
assertion of illegality’” the stop of Cooks was impermissible. Unlike
the anonymous caller in this case, the hotel clerk in Cooks was a
“citizen informant” who “falls at the higher end of the reliability
scale.” Baptiste, 995 So.2d at 291. Even with a higher level of
reliability and far greater detail about the suspicious conduct in
Cooks, this Court found no “reasonable suspicion that [Cooks] (or
anyone else) had committed, was committing, or would commit a
crime.” Cooks, 28 So. 3d at 150.
Similarly, in R.E. v. State, 536 So. 2d 1125 (Fla. 1st DCA
1988), a citizen informant, Harold Davis, made calls to the sheriff’s
department after observing what he believed might be drug
transactions.
Mr. Davis reported that he had been in a parking lot in
Williston when he observed a meeting between two
persons in a late model white automobile and other
persons in a blue Pontiac. What appeared to be a key case
passed between the cars and the occupants of the blue car
opened the trunk of the white car. Although Mr. Davis did
not see drugs or money change hands, the behavior of the
participants suggested to him that a drug transaction had
taken place. Mr. Davis identified the participants as
white males and provided a partial license plate number
for the white car.
Id. at 1126. After receiving another call from Davis, a message was
sent to “be on lookout for a white Pontiac, tag number CEB–9?U,
whose driver might be selling drugs,” after which an officer soon
saw and stopped a vehicle matching the description (with tag
number CEB–92U) even though “there was nothing to arouse
suspicion and the driver was obeying the traffic laws” at the time.
Id. Amongst the three juveniles in the car were “several cans of
beer” and marijuana. Id. at 1127.
In concluding that the investigatory detention was improper,
this Court made two points. First, it rejected the view that the
information provided by the informant “pertained to a specific
offense,” concluding instead that the report was of “generalized,
16
allegedly suspicious activity” and that “it is necessary to make the
additional showing that the information made it reasonable to
suspect that a crime had been, was being, or would be committed.”
Id. at 1128. Second, a “citizen’s claim of suspicious activity that
has a minimal objective basis” must be corroborated by more than
the “innocent details of identification (e.g., a license plate number)”
to make the “required showing that the information was
sufficiently detailed to single out the suspect.” Id. Such
information, however, does not “create or support a suspicion that
crime is afoot, which is essential if a report of generalized,
allegedly suspicious activity is to justify a stop.” Id.; see also N.S.
v. State, 227 So. 3d 132 (Fla. 4th DCA 2017) (detective responding
at 9:00 pm to a call of a suspicious vehicle at apartments detained
a juvenile who was walking away as he approached; held, an
unconstitutional investigatory detention); Collins v. State, 115 So.
3d 1040, 1042, 1043 (Fla. 4th DCA 2013) (“anonymous tip that two
juveniles were loitering around the complex and that narcotics
were possibly involved,” but providing “no race, no gender, no other
description” was “bare bones” and not “sufficient, even if
corroborated, to justify an investigatory stop.”). Applied here, it is
obvious that the anonymous call—which gave far less information
than the citizen informant in R.E.—pertained to no specific offense
and amounted to a generalized and nonactionable suspicion that
lacked an objective basis for detention.
Additionally, in Majors, a “bank manager called 911 and,
whispering, reported that a customer was ‘acting weird’ and
attempting to withdraw $17,500.” 70 So. 3d at 658. The customer,
who’d not made large withdrawals before, “wanted to make a check
payable to the driver of a Nissan that was parked in front of the
bank, and the customer kept going back and forth between the
Nissan and the bank, acting strangely and having discussions with
the people in the Nissan.” Id. The bank manager said, “the
customer seemed to know what he was doing but that the bank
employees thought he might be on drugs.” Id. Officers arrived at
the bank and used their vehicles to block the Nissan, which was
attempting to back out of a parking space, arresting Majors in the
process. Id.In concluding that the investigatory stop was unjustified, this
Court made two critical points that are dispositive here. First, it
17
noted that the officers admitted “that they did not suspect any
particular crime was occurring when they stopped the Nissan,” id.
at 660, which weighs against the requirement that they “must be
able to articulate in particular and objective terms his reasonable
suspicion of criminal activity,” id. (quoting Palmer v. State, 625 So.
2d 1303, 1306 (Fla. 1st DCA 1993)).
Importantly, the officers in this case were not able to
articulate a basis for suspecting criminal activity, as they
were not even able to state a crime they believed was
occurring. As suggested above, this factor weighs heavily
in favor of a conclusion that no reasonable suspicion
existed. Moreover, had they named a crime they believed
was occurring, there would have been insufficient evidence
to support their suspicion. The customer’s activity inside
the bank was strange, but the concern that this strange
behavior and his interaction with the Nissan related to
criminal conduct was not supported by any articulable
facts.
Majors, 70 So. 3d at 661 (emphasis added). Like those in Majors,
the officers here failed to articulate any particular crime for which
a well-founded and reasonable suspicion existed to stop Weakley.
And, most importantly, even if the officers had “named a crime
they believed was occurring,” the anonymous tip in this case
contained no information upon which to conclude that a well-
founded and reasonable suspicion of criminal activity existed.
Second, the Court in Majors concluded that the “Nissan’s
attempt to leave the bank when the officers arrived does not tip
the scale in favor of finding reasonable suspicion because the
testimony indicates that the Nissan simply began to back out of a
parking space.” Id. Like the Nissan in Majors, the motorcyclist’s
turn into the bypass area, even if subjectively believed to be flight,
does not tip the scales under the circumstances. The Court rejected
the State’s argument that “the Nissan’s attempt to leave the bank
supports a conclusion that the officers had reasonable suspicion.”
Id. at 660. Though agreeing that flight can be a factor, particularly
headlong flight from police in a high-crime area, it emphasized
that “‘reasonable suspicion of criminal activity is not established
simply because a defendant leaves the scene when an officer
18
nears.’” Id. (citation omitted). In considering “all of the
circumstances” in Majors, this Court held that “any suspicion that
the people in the Nissan were . . . involved in a crime is highly
speculative and properly characterized as a hunch.” Id. at 661.
Measured against the facts, legal principles, and holding in
Majors, the outcome in this anonymous tip case ought to be a
reversal.
The majority is critical of my view, citing to District of
Columbia v. Wesby, 138 S. Ct. 577 (2018) and United States v.
Arvizu, 534 U.S. 266 (2002), which—upon inspection—
demonstrates how far afield their legal analysis strays. Wesby
involved whether the totality of the circumstances established
probable cause to arrest a partygoer for unlawful entry at a vacant,
unfurnished, squalid, and beer can-ridden home where loud music,
marijuana smoke, strippers, men with a naked woman on a bare
mattress, and other obvious indicia of illicit revelry were “going
strong when the officers arrived after 1 a.m.,” supporting the
conclusion that attendees “knew their party was not authorized.”
138 S. Ct. at 586–87. Under these extreme circumstances, the
officers could reasonably infer “that the partygoers knew their
party was not authorized” because “most homeowners do not invite
people over to use their living room as a strip club, to have sex in
their bedroom, to smoke marijuana inside, and to leave their floors
filthy.” Id. at 587. But these circumstances aren’t remotely similar
to the anonymous tip/veering in this case. And Weakley—unlike
the partygoers in Wesby who scattered and hid when police
arrived—didn’t engage in unprovoked flight at the “first sign of
police.” Id. at 589. Indeed, no evidence exists that he knew a police
car was approaching that evening until he was hemmed in and
detained (at which point blue lights were first turned on).
In Arvizu, a border patrol agent intercepted, followed,
obtained the tag and registration of, ultimately stopped, and then
conducted an investigatory detention of a minivan that drove along
a largely unpaved backroads route “very rarely traveled except for
use by local ranchers and forest service personnel,” but often used
by drug smugglers and those illegally immigrating to avoid the
border checkpoint. 534 U.S. at 269. The route is populated with
sensors to detect traffic trying to evade the checkpoint and gain
access from Mexico to the cities of Tucson and Phoenix. Two
19
sensors were triggered during a checkpoint shift change, which the
agent knew was when smugglers, who did extensive scouting of
their own, would most likely use the route. Id. at 269-70. The agent
drove to the area and saw a minivan (of the “type” the agent “knew
smugglers used”) driven by a man with a woman and three small
kids. Id. at 270. The “driver appeared stiff and his posture very
rigid” and “seemed to be trying to pretend that [the agent] was not
there,” which was odd because “in that area most drivers give
border patrol agents a friendly wave.” Id. Two of the “children
sitting in the very back seat were unusually high, as if their feet
were propped up on some cargo on the floor.” Id.The agent followed the minivan, whose passengers included
three children who “though still facing forward, put their hands up
at the same time and began to wave at [the agent] in an abnormal
pattern. It looked to [the agent] as if the children were being
instructed. Their odd waving continued on and off for about four to
five minutes.” Id. at 270–71 (internal citation omitted). After the
van made some unusual signals, it turned onto a rough road
(primarily suitable for four-wheel drive vehicles) that lacked a
picnic area (the agent had never seen anyone picnicking or
sightseeing in the area). Id. at 271. The agent decided to check the
minivan’s registration, learning that it was registered to an
address “that was four blocks north of the border in an area
notorious for alien and narcotics smuggling.” Id. At that point, the
agent pulled over the minivan, asked the driver if he could inspect
the interior (the driver consented), and found “marijuana in a
black duffel bag under the feet of the two children in the back seat”
and “[a]nother bag containing marijuana was behind the rear
seat.” Id. at 272. On these facts, the Supreme Court reversed the
Ninth Circuit, which had used a ten-factor test that isolated and
independently evaluated each factor without consideration of their
totality.
Unlike this case, Arvizu did not involve an anonymous tip,
was based on reliable evidence of at least ten potential factors
relevant to ongoing drug trafficking at the U.S.-Mexico border, and
involved the specialized experience and direct observations of a
border agent who followed and watched the suspicious minivan
and its oddly-acting occupants for many miles before deciding to
conduct a stop after a check of the vehicle’s registration placed it
20
in a “notorious” drug neighborhood. The quantity and quality of
evidence supporting reasonable suspicion for an investigatory stop
in Arvizu fully eclipses the scanty, unreliable information here. It
took the Ninth Circuit, which engaged in a “sort of divide-and-
conquer analysis” and hyper-critical parsing of the ten factors, to
find a lack of reasonable suspicion. Id. at 274. In sharp contrast, it
doesn’t take that type of hyper-critical parsing of the two factors
here (a vague/uncorroborated anonymous tip and Weakley’s
veering) to conclude that an investigatory stop was unwarranted.
Arvizu does show, however, the value of observing a vehicle and
checking its registration before conducting a stop, which did not
occur here (the officers immediately detained and hemmed in
Weakley).
Finally, and importantly, the appropriateness of police officers
undertaking steps to investigate the anonymous tip in this case is
not in dispute. They had broad investigative leeway in doing so
without precipitously seizing Weakley as they approached the
neighborhood. For example, they could have attempted to ask him
questions (a citizen’s encounter), follow him, or get his tag
number. 3 As the Supreme Court said in Royer:
3 For example, the arresting officer testified that had Weakley
not stopped he “would have got behind [the motorcycle] and got the
tag” and also attempted “to make contact.” On direct examination
by the State, he testified as follows:
Q: If this had been a two-lane road and [Weakley] could
have just continued to go past you, would you have -- what
would your actions have been, if he had – if he had
continued past you and not tried to veer off anywhere.
A: Either myself or I would have directed Deputy
Matthews to turn around and get behind the vehicle, get
a tag, try to identify who was on it . . . we would have got
behind that vehicle and got the tag and -- and, you know,
tried to make contact.
(Emphasis added). The focus of the question is what would have
happened if Weakley had been able to continue past the officers;
the question neither presumed nor established that the officers
21
. . . law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the
street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to
him if the person is willing to listen, or by offering in
evidence in a criminal prosecution his voluntary answers
to such questions.
460 U.S. at 497. Even if Weakley refused to cooperate and
departed, that wouldn’t foreclose efforts to track him and get the
motorcycle’s license plate. But immediate detention or seizure was
impermissible. See Florida v. Bostick, 501 U.S. 429, 437 (1991)
(“We have consistently held that a refusal to cooperate, without
more, does not furnish the minimal level of objective justification
needed for a detention or seizure.”); see also Royer, 460 U.S. at 497–
98 (“The person approached, however, need not answer any
question put to him; indeed, he may decline to listen to the
questions at all and may go on his way. . . . He may not be detained
even momentarily without reasonable, objective grounds for doing
so; and his refusal to listen or answer does not, without more,
furnish those grounds.”).
Under the majority’s holding, what’s the point of undertaking
more modest and incremental investigative techniques if officers
can now simply precipitously stop, physically restrain, and
question persons in situations such as this one, where an
unverified and paltry anonymous tip is received? At the margin,
officers in reliance on this case have greater leeway to detain
people despite the obvious potential for anonymous tips of this type
to “be used as a tool of harassment—a situation condemned by the
Supreme Court in J.L.” Baptiste, 995 So. 2d at 298 (noting that
“all a tipster would need to do is inform police that an individual
had exhibited a firearm in public—rather than possessed a
firearm—and that person would be subjected to gunpoint seizure
and an embarrassing public search by the police.”).
would have been unable to turn around and follow Weakley. At
best, the roadway was narrow and described as “one-way access or
egress,” which wouldn’t necessarily preclude a police vehicle from
making a U-turn to pursue Weakley had he rode away (i.e., fled).
22
For example, a resident who does not wish to see other
persons in his or her neighborhood hypothetically could
telephone a false tip that a person having a particular
description had publicly displayed a firearm.
Analogously, a man or woman who seeks revenge against
and to harass an ex-girlfriend or ex-boyfriend could
telephone a tip alleging that she or he had brandished a
firearm in public.
Id. (emphasis added). The majority’s holding breathes new life into
anonymous tips as tools of harassment. If an anonymous caller
wants a person to be detained, all she “would need to do is inform
police that an individual [was near a vacant building],” fret about
a possible burglary, and that person would be subjected to seizure
based solely on perceived flight; the caller wouldn’t even have to
mention that a weapon was displayed or brandished.
***
I cannot conclude, as the majority does, that the generic and
unreliable anonymous call in this case plus Weakley’s perceived
flight met the requirements under the totality of the circumstances
to justify an immediate investigatory detention. The record falls
short of objectively establishing that a well-founded and
reasonable suspicion existed that a crime was committed for which
immediate detention of Weakley was permissible. At best, only a
hunch or mere suspicion existed, which justified an investigation,
but not Weakley’s precipitous detention. Today’s decision chips
away a part of the Fourth Amendment’s protection against
“unreasonable searches and seizures” and undermines the
constitutionally-protected liberty of all persons detained
unjustifiably in the future based upon its holding.
_____________________________
Andy Thomas, Public Defender, Steven Seliger, Assistant Public
Defender, Lori A. Willner, Assistant Public Defender, and Aimee
Lim, Assistant Public Defender, Tallahassee, for Appellant.
23
Ashley Moody, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.
24