Baptiste v. State

• Decision Date: 18 September 2008
• Docket Number: No. SC07-1453.,SC07-1453.
• Citation: 995 So.2d 285
• Parties: George BAPTISTE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

995 So.2d 285

George BAPTISTE, Petitioner, v. STATE of Florida, Respondent.

No. SC07-1453.

Supreme Court of Florida.

September 18, 2008.

Rehearing Denied November 20, 2008.

Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Richard L. Polin, Chief Assistant Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, Miami, FL, for Respondent.

LEWIS, J.

Petitioner George Baptiste seeks review of the decision of the Third District Court of Appeal in Baptiste v. State, 959 So.2d 815 (Fla. 3d DCA 2007), asserting that it expressly and directly conflicts with a decision of the Second District Court of Appeal, Rivera v. State, 771 So.2d 1246 (Fla. 2d DCA 2000), with regard to a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

On December 30, 2004, at approximately 5:45 a.m., Penny Ellison, an officer with the Miami-Dade Police Department, received a radio dispatch stating that an 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 located at 211th Street and Northwest 37th Avenue. The transcript of the suppression hearing reveals that when Officer Ellison arrived in this area, another female officer, Terrika Williams,¹ had already stopped a black male at gunpoint who was wearing a white T-shirt and blue-jean shorts. Officer Ellison immediately drew her weapon and the two officers ordered the individual, defendant George Baptiste, to lie on the ground. After the stop at gunpoint had been made and a second officer had arrived at the location, a citizen approached and advised Officer Ellison that he had been the anonymous caller and intended to remain anonymous, but the individual being held at gunpoint was the person he had identified in his anonymous call. That person then disappeared and has never been identified. Subsequently, and as Baptiste lay on the ground, the officers frisked him. At that point, Baptiste advised them that he was in possession of a firearm and Officer Ellison retrieved the firearm from Baptiste's front pocket. Other than gender, the record provides no additional information (such as name, age, address, or appearance) with regard to the anonymous caller.

Baptiste was arrested and charged with unlawful possession of a firearm by a convicted felon. See § 790.23(1)(a), Fla. Stat. (2004). During pretrial proceedings, Baptiste filed a motion to suppress, contending that the information provided in the anonymous tip was insufficient to establish the reasonable suspicion required to detain him. He asserted that the officers, upon their arrival at the scene, did not independently observe him engage in any illegal or suspicious conduct. Therefore, according to Baptiste, the anonymous tip was unreliable and an insufficient basis to create the necessary reasonable suspicion and the gun must be suppressed under the requirements of the Fourth Amendment.

During the hearing on the motion to suppress, Officer Ellison testified that when she arrived at the scene, she did not observe Baptiste waving or carrying a firearm or engaging in any suspicious behavior. Officer Ellison further testified that Officer Williams, the first officer to arrive at the scene, did not indicate that Baptiste had engaged in any observed suspicious behavior. Officer Ellison acknowledged that other than the individual who approached her after Baptiste had been stopped at gunpoint and then disappeared, the only information she possessed that Baptiste had publicly waved a firearm was from the radio dispatch based on an anonymous caller.

According to Baptiste, he had been behind a grocery store when he saw a firearm and picked it up. Baptiste stated that as he walked around to the front of the store, he was holding the firearm in his hand down by the side of his leg. When he looked inside the store he did not see anyone, so he placed the gun in his pocket and walked across the street. When he was approximately four houses away from the store, an officer ordered him at gunpoint to lie on the ground and place his hands behind his back. The trial court denied the motion to suppress and a jury later convicted Baptiste of unlawful possession of a firearm by a convicted felon. The trial court sentenced Baptiste as a habitual felony offender to fifteen years' incarceration with a three-year mandatory minimum (due to the firearm).

Baptiste appealed his conviction and the Third District Court of Appeal affirmed. See Baptiste v. State, 959 So.2d 815, 817 (Fla. 3d DCA 2007). The district court attempted to distinguish Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which the United States Supreme Court held that an anonymous tip that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a concealed gun lacked sufficient indicia of reliability to provide the officers with reasonable suspicion to conduct a Terry² stop of a person at the bus stop who matched the identical description where the officers had no reason to suspect illegal conduct other than the anonymous tip. See Baptiste, 959 So.2d at 816; J.L., 529 U.S. at 268, 271. The Third District relied upon the following distinctions:

(1) The content of the original tip did not merely describe that the defendant was carrying a concealed firearm, as in J.L., but rather provided the obvious and extremely dangerous fact that a firearm was being openly displayed. In these circumstances, the "tip" itself rendered it reasonable for the officer to effect the stop necessary to inquire further.

(2) Unlike J.L., the "anonymous tipster" who made the 911 call was transmogrified into a constitutionally reliable citizen informant when the caller—after the stop at gunpoint, but before the pat-down search and seizure of the gun— came to the scene and identified himself to the officers.

See 959 So.2d at 816-17.

On July 3, 2007, this Court accepted review of Baptiste based upon express and direct conflict with Rivera, in which the Second District held that an anonymous tip that a maroon Toyota, which bore a specific license plate number, and a white Mazda were exchanging gunfire did not provide law enforcement with reasonable suspicion to stop the Toyota. Further, the decision of the Third District conflicts with our decision in J.L. v. State, 727 So.2d 204 (Fla.1998), which the United States Supreme Court subsequently affirmed in Florida v. J.L.

ANALYSIS

The Fourth Amendment to the United States Constitution and section 12 of Florida's Declaration of Rights guarantee citizens the right to be free from unreasonable searches and seizures. The Florida Constitution expressly provides that the right shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See art. I, § 12, Fla. Const. Thus, items obtained in violation of the Florida Constitution shall be excluded from evidence if the items would be excluded pursuant to the jurisprudence of the United States Supreme Court. See id.

In the landmark case Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court concluded:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

(Emphasis supplied.) The Supreme Court ultimately held that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. 1868 (emphasis supplied). Since the High Court's decision, the limited stop-and-frisk of a suspect has been referred to as a Terry stop, and the key concern with regard to the legality of such an investigatory stop is the existence of a reasonable suspicion that is based upon specific and articulable facts, and the rational inferences that may be drawn from those facts. See id. at 21, 88 S.Ct. 1868; see also Ornelas v. United States, 517 U.S. 690, 693, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ("An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion ...."). In Terry, the stop was based upon observed suspicious conduct.³

Reasonable Suspicion: Citizen Informants Versus Anonymous Tipsters

The United States Supreme Court has held that reasonable suspicion "is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). According to the High Court:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable...