Matthew A. Tobin v. State of Florida , 146 So. 3d 159 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MATTHEW A. TOBIN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-2293
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 10, 2014.
An appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.
Bert Moore, Crestview, for Appellant.
Pamela Jo Bondi, Attorney General, and Kristen Bonjour and Trisha Meggs Pate,
Assistant Attorneys General, Tallahassee, for Appellee.
MARSTILLER, J.
We have for review the trial court’s denial of Appellant’s dispositive motion
to suppress evidence he was driving with a suspended or revoked license, 1 which
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Reviewing a motion to suppress presents a mixed question; findings are
reviewed for sufficient evidence, and the application of the law to those findings is
reviewed de novo. See Berry v. State, 86 So. 3d 595, 598 (Fla. 1st DCA 2012).
led the court to find Appellant in violation of community control. Because the
deputy sheriff who stopped Appellant’s vehicle lacked the reasonable, articulable
suspicion of criminal activity necessary to justify what the court determined—and
the State conceded—was an investigatory stop, we conclude the court erred in
denying the motion to suppress.
Appellant was on two years’ community control, followed by two years’
probation, for committing battery on a law enforcement officer and resisting an
officer with violence. On the night in question, the Okaloosa County Sheriff’s
Office received two anonymous calls complaining of a disturbance at a particular
residence or business located at the end of a privately-maintained road. The
Sheriff’s Office had received complaints in the past about disturbances at the
property; some complaints were founded, some were not. The first anonymous
call that night indicated firearms may be involved. When deputies investigated,
they found no disturbance. Sometime later, a second call came in reporting a
disturbance at the property, this time alleging someone on the property was
overheard shouting “Shoot me now!” Two deputies responded, each in his own
cruiser. The first deputy to arrive saw a vehicle leaving the property as he
approached, and radioed to the second deputy, who was nearer to the intersection
of the private road and the public street, to stop the vehicle. The second deputy,
seeing the vehicle coming directly toward him, activated the blue lights on his
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cruiser, causing the then-unknown driver to stop his vehicle “beak to beak” with
the cruiser. When Appellant began to get out of the vehicle, the deputy directed
him to stay put. The deputy testified at the suppression hearing he did so because
of concerns, based on the anonymous call, that a firearm may be present. Upon
approaching the vehicle, however, the deputy recognized Appellant, knew he was
on community control, and knew his driver’s license was suspended. At that point,
he arrested Appellant for driving with a suspended license. The deputy also
smelled alcohol on Appellant’s breath and found a cup containing an alcoholic
beverage in the passenger or back seat of Appellant’s vehicle.
The State later filed an affidavit of violation of community control based on
the new law violation and failure to abstain from using alcohol. Upon denying
Appellant’s motion to suppress, the trial court found only the new law violation
proven, revoked Appellant’s community control on that basis, and entered
judgment sentencing him to 36 months in prison.
It is well settled that, to effect a constitutionally-permissible investigatory
stop, a law enforcement officer must have a well-founded, articulable suspicion
that the person stopped has committed, is committing, or is about to commit a
crime. § 901.151, Fla. Stat. (2012), Terry v. Ohio, 392 U.S. 1 (1968); Popple v.
State, 626 So. 2d 185, 186 (Fla. 1993); Berry v. State, 86 So. 3d 595, 598 (Fla. 1st
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DCA 2012). “Mere suspicion is not enough to support a [Terry] stop.” Popple,
626 So. 2d at 186.
The parties assert that whether the deputy who stopped Appellant’s vehicle
had the requisite well-founded suspicion of criminal activity turns on how the
anonymous calls are characterized. See State v. Maynard, 783 So. 2d 226, 228,
(Fla. 2001). Appellant argues the calls were merely anonymous tips that, absent
additional information obtained by the deputies, were not sufficiently reliable to
justify the detention that occurred here. The State counters that the callers can be
reasonably characterized as citizen informants whose calls are presumed reliable
and generally are sufficient to support an investigatory detention without further
corroboration.
“Reasonable suspicion . . . 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 circumstances—the whole picture,” that
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)). “‘In analyzing whether third-party information
can provide the requisite reasonable suspicion, courts have looked to the reliability
of the informant as well as the reliability of the information provided.’” Berry, 86
So. 3d at 598 (quoting D.P. v. State, 65 So. 3d 123, 127 (Fla. 3d DCA 2011)). The
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less reliable the tip, the more independent corroboration will be required to
establish reasonable suspicion. White, 496 U.S. at 330. On the “spectrum of
reliability,” an anonymous tip has “relatively low” reliability. Berry at 598; see
also State v. DeLuca, 40 So. 3d 120, 124 (Fla. 1st DCA 2010). This is because “an
anonymous tip alone seldom demonstrates the informant’s basis of knowledge or
veracity as ordinary citizens generally do not provide extensive recitations of the
basis of their everyday observations and given that the veracity of persons
supplying [such] tips” cannot be determined. White at 329. Thus, “[a]n
anonymous tip requires that the information be ‘sufficiently corroborated’ by the
officer to constitute reasonable suspicion[.]” Berry at 598 (citing State v. Evans,
692 So. 2d 216, 218 (Fla. 4th DCA 1997)). A citizen informant, on the other hand,
is presumed highly reliable because his or her “motivation in reporting illegality is
the promotion of justice and public safety,” and because the informant gives his or
her name to police and “can be held accountable for the accuracy of the
information given.” DeLuca, 40 So. 3d at 124. Therefore, “[a] tip from a citizen
informant is sufficient by itself to provide law enforcement with reasonable
suspicion to conduct a Terry stop.” Berry at 599 (citing State v. Maynard, 783 So.
2d 226, 228 (Fla. 2001)).
Applying these principles to the facts in the instant case, we conclude the
deputy who stopped Appellant’s car did not have a well-founded suspicion of
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criminal activity needed to effect a lawful Terry stop. The disturbance calls that
sent the deputies to the property on the night question were anonymous tips bereft
of any details indicating the information given was reliable. Indeed, the first call
proved to be unfounded after deputies investigated. The second call, alleging
someone was overheard yelling “Shoot me now,” still did not provide any specific,
articulable facts indicating that Appellant (or any other identifiable person, for that
matter) was engaged in criminal activity. Thus, even if, as the State argues, we
could characterize the callers as citizen informants, there still was insufficient
information given to support a reasonable, articulable suspicion that a crime had
been, or was being, committed. See Florida v. J.L., 529 U.S. 266 (2000) (holding
anonymous tip claiming person was carrying a gun insufficient, without more, to
justify stop and frisk of the person); Baptiste v. State, 995 So. 2d 285 (Fla. 2008)
(holding anonymous 911 call describing person and alleging person had waved
firearm in public not sufficiently reliable to provide reasonable suspicion for
investigative stop of person matching the description).
Because the anonymous calls provided neither the quantity nor the quality of
information necessary to create reasonable suspicion, the deputies needed
additional, independently-obtained information. They had none, for they had not
yet begun to investigate the alleged disturbance when Appellant’s car was stopped.
Nor did they observe any behavior by Appellant to generate reasonable suspicion
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he was or had been engaged in criminal activity involving a firearm. Compare
Hudson v. State, 41 So. 3d 948 (Fla. 2d DCA 2010) (finding reasonable suspicion
where officers received anonymous call that a man was burglarizing cars in
stadium parking lot, and observed person matching “vague description” carrying
two duffel bags and hurriedly walking away from stadium) and J.H. v. State, 106
So. 3d 1001 (Fla. 3d DCA 2013) (finding no reasonable suspicion where officer
responded to scene of fight reported by anonymous caller and observed no fight,
but saw and stopped a youth matching description who was merely sweating and
out of breath and appeared nervous).
If the second deputy’s action could be characterized as attempting a
consensual encounter with Appellant, see generally Popple, 626 So. 2d at 186, we
could affirm the trial court’s denial of Appellant’s motion to suppress. But the
deputy effected the stop of Appellant’s car by activating the blue lights on his
cruiser, positioning the cruiser on the road such that Appellant had to stop directly
opposite, and ordering Appellant to remain in the car when he attempted to step
out. “Although there is no litmus-paper test for distinguishing a consensual
encounter from a seizure, a significant identifying characteristic of a consensual
encounter is that the officer cannot hinder or restrict the person’s freedom to leave
or freedom to refuse to answer inquiries[.]” Id. at 187. On the other hand, “a
person is seized if, under the circumstances, a reasonable person would conclude
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that he or she is not free to end the encounter and depart.” Id. at 188. What
occurred in this case was a seizure—an investigatory stop for which a reasonable,
articulable suspicion of criminal activity by Appellant was required. Because the
anonymous calls failed to provide deputies with the requisite level of suspicion, the
stop of Appellant’s car was unlawful, and the trial court should have granted the
motion to suppress. Accordingly, we reverse the order of revocation of community
control and the subsequent judgment and sentence, and direct the trial court to
reinstate Appellant’s community control.
REVERSED and REMANDED with directions.
ROWE and RAY, JJ., CONCUR.
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