Byrd v. State, NN-303

• Citation: 380 So.2d 457
• Decision Date: 23 January 1980
• Docket Number: No. NN-303,NN-303
• Parties: Brady Otis BYRD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 457

380 So.2d 457

Brady Otis BYRD, Appellant, v. STATE of Florida, Appellee.

No. NN-303.

District Court of Appeal of Florida, First District.

Jan. 23, 1980.

Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for appellant.

Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Byrd appeals his conviction for possession of narcotics found inside his car following a warrantless search.

Patrolling officers received information by radio that a white female had been possibly abducted by two black males and placed into a white Lincoln Continental automobile at a certain location in Tallahassee. Sometime later a second BOLO was received by them pertaining to the theft of a purse in the general area where the abduction was believed to have occurred. It gave also a general description of two black males, similar to the description of the two suspects provided in the prior BOLO. The officers stopped a white Continental automobile. The driver, appellant, was questioned, and one of the officers, while standing outside the car, saw what appeared to be a purse in the back seat. ¹ The officer asked appellant if he could check the purse and was told to go ahead. Upon opening the passenger's door to the automobile the officer saw "marijuana roaches" in an open ashtray. Defendant was placed under arrest, the automobile searched and additional narcotics were found in other parts of the car.

Appellant first argues that his initial detention was invalid since the information received over radio was based on an unverified informant's tip. There is language in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978) which provides support to appellant's argument. In St. John, the court stated: "If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon." Id. at 863. We consider this statement much too broad. We note that the Fourth District Court of Appeal, in announcing its rule, relied upon the decision of the Second District Court of Appeal in State v. Hendry, 309 So.2d 61 (Fla. 2d DCA 1975). The Hendry decision, however, was later receded from by the Second District Court of Appeal in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), where the court held that an anonymous tip can provide the basis for a valid stop so long as the information carries enough indicia of reliability to justify the stop. 366 So.2d at 838-39. We note additionally that the language stated by the Fourth District Court of Appeal in St. John appears to have been implicitly disapproved by that court's later decision in Isham v. State, 369 So.2d 103, 104 (Fla. 4th DCA 1979), holding that the police had the right and even a duty to investigate a telephone call received from an anonymous informant. It struck down, however, the search following the encounter because the information relayed did not suggest that the defendant was armed with a dangerous weapon and there existed neither consent nor probable cause to search.

A stop of an automobile as opposed to a search is not necessarily analyzed in terms of arrest, probable cause for arrest, or warrants based on probable cause. If the stop is prompted not by probable cause, but by an officer's suspicion that criminal activity may be present, the legality of the stop is then measured by the Fourth Amendment's general proscription against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The reasonableness of the officer's conduct is in turn determined by balancing the violation of the individual's privacy rights against the public's interest in preventing crime. At a suppression hearing an officer should be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that" criminal activity is afoot. Terry v. Ohio, supra, 392 U.S. 21, 88 S.Ct. 1880. The "articulable" facts inducing the stop need not be directly observed by the officer. They may be furnished to him by a known informant, and if the information provided carries enough indicia of reliability, a stop will not be invalidated. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Other cases have permitted police encounters with individuals or vehicles even though the information provided came from an anonymous source and was unrelated to the suspect's possession of a dangerous weapon. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970); United States v. Hernandez, 486 F.2d 614 (7th Cir. 1973), cert. den., 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973). And see general discussion in State v. Hetland, supra at 837-38.

The above rules apply only to the initial encounter not to a search. Although a stop of a vehicle may under particular circumstances be reasonable even though probable cause does not exist, a further intrusion may not be judicially condoned unless consent is given by the occupant. United States v. Brignoni-Ponce, supra, 422 U.S. at 881-82, 95 S.Ct. at 2580-81.

We conclude there is no necessity, as stated in St. John v. State, supra, that the information contained in a BOLO be provided from a known informant so long as the other criteria previously mentioned are present. We decline to follow the rule announced in St. John.

The stop in the present case, although based upon information received from an unknown source, was not unreasonable since the detaining officer was able to articulate facts at the suppression hearing which gave rise to his reasonable belief that criminal activity was afoot. The automobile and its occupant matched the description previously furnished in the BOLO. As such, the information carried "enough indicia of reliability" to justify the initial intrusion.

There is nothing in the record reflecting that defendant did not freely and voluntarily consent for the officer to enter the car. At the hearing the officer stated that he asked defendant if he might enter the car to look at that which appeared to be a purse, and the defendant replied that he could. The defendant, as was his privilege, elected not to testify. As a result, there was no challenge by defendant at the hearing that he was required to submit to superior authority. While the officer did not state that he advised defendant he could decline permission, the law is clear that even though a...