Berry v. State

• Decision Date: 08 May 2012
• Docket Number: No. 1D10–2627.,1D10–2627.
• Citation: 86 So.3d 595
• Parties: Gerome BERRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

86 So.3d 595

Gerome BERRY, Appellant,
v.
STATE of Florida, Appellee.

No. 1D10–2627.

District Court of Appeal of Florida,
First District.

May 8, 2012.

[86 So.3d 597]

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

Gerome Berry appeals his convictions for possession of cocaine, possession of cocaine with intent to sell, and resisting a law enforcement officer without violence, arguing that the trial court erred in denying his motion to suppress the crack cocaine and U.S. currency seized from him during a warrantless search. It is clear from this record that neither the arresting officer nor his fellow officer observed any suspicious behavior to confirm the reliability of the information given by a face-to-face anonymous tipster. Further, there were no other factors present sufficient to give the arresting officer reasonable suspicion to justify the investigatory stop which led to appellant's arrest. Accordingly, we are constrained to reverse. Because of this disposition, we do not address appellant's constitutional challenge to section 893.13, Florida Statutes. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

At 9:30 a.m. on October 9, 2009, Agriculture Law Enforcement Officer Allen was in a convenience store in the town of Hilliard. Inside the store, Allen was approached by a female in her early 30s who advised him that a black male was selling crack cocaine out of a small bag on a nearby corner of Orange Street. She said this person was wearing blue jean shorts, a white shirt, and a black stocking on his head. Allen called Nassau County Sheriff's Deputy Murray, who was on duty that day in the area, and relayed this information. Allen said he would wait at the convenience store in case the deputy needed assistance. As he was waiting, Allen observed a black male wearing a white shirt, blue shorts and a black stocking hat walk around the corner of the convenience store. This individual appeared to have an object in his hand although Allen “couldn't necessarily say that it was a bag.” After he made eye contact with Officer Allen, the individual turned and walked into the woods adjacent to the convenience store. He returned shortly thereafter with nothing in his hands. His pants were unzipped and he told Allen that he had gone into the woods to relieve himself. He walked past the officer and headed in the direction of Orange Street.

Deputy Murray contacted Officer Allen and advised him that he was on the street corner, but a black male fitting the description was not there. Officer Allen advised Deputy Murray that the suspect appeared to be walking in that direction. Deputy Murray encountered appellant walking down the road “in a nervous pace” continually looking behind as he walked. The deputy pulled in behind appellant and activated his blue lights. Appellant resisted the subsequent pat down, the deputy arrested him for resisting an officer without violence, and the subsequent search revealed narcotics in a potato chip bag in appellant's pocket.

At the suppression hearing, Officer Allen testified that he did not know the woman who gave him the tip and that she expressly advised that she did not want to give her name and that she wanted to remain anonymous. She did not advise him how she knew that appellant possessed cocaine or how she knew that he was selling cocaine. Officer Allen did not

[86 So.3d 598]

testify with respect to the credibility of the face-to-face tipster. Further, he offered his personal opinion that he “didn't observe [appellant] engage in any suspicious or criminal activity.” The trial court summarily denied the motion to suppress. Following a trial, the jury found appellant guilty as charged.

In reviewing the order denying the motion to suppress, this court must view the evidence and the reasonable inferences and deductions therefrom in a light most favorable to sustaining the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). We review de novo the trial court's application of the law to the facts to determine whether Deputy Murray lawfully conducted an investigatory stop. Robinson v. State, 885 So.2d 951, 953 (Fla. 1st DCA 2004).

To justify a Terry¹ stop, a law enforcement officer must have a well-founded, articulable suspicion that the person detained has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2009); Popple v. State, 626 So.2d 185, 186 (Fla.1993). Unlike in Terry, where the officer's own observations provided a well-founded, articulable suspicion, the instant case involves information from an anonymous third party in the form of a tip. The issue presented here is whether this face-to-face tip was sufficient to provide the requisite reasonable suspicion.

“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.” D.P. v. State, 65 So.3d 123, 127 (Fla. 3d DCA 2011). “[I]f a tip has 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.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). A court should consider the “totality of the circumstances” in undertaking this analysis. Id.

The spectrum of reliability of a tip ranges from the “anonymous, unknown tipster whose assertions of criminal activity typically cannot be verified and thus require independent corroboration,” which has relatively low reliability, to the relatively high reliability of a tip from the “citizen-informer crime victim whose motivation in reporting illegality is the promotion of justice and public safety rather than financial gain, and who can be held accountable for the accuracy of the information given.” State v. DeLuca, 40 So.3d 120, 124 (Fla. 1st DCA 2010); see also Baptiste v. State, 995 So.2d 285, 291–92 (Fla.2008); State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997). In between these types of tips is the face-to-face anonymous tipster whose identity cannot be ascertained, the face-to-face anonymous tipster whose identity is ascertainable, and the paid informant, among others. “One simple rule” does not apply to every situation. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Here, we must determine whether the face-to-face tip was more like a truly anonymous tip or more like a citizen informant tip. An anonymous tip requires that the information be “sufficiently corroborated” by the officer to constitute reasonable suspicion because the tipster's veracity, reliability, and basis of knowledge are typically unknown. State v. Evans, 692 So.2d at 218;see also State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (applying the analysis of Evans ). By comparison, a citizen informant is one who

[86 So.3d 599]

observes criminal conduct and reports it, along with his or her identity, to the police. A tip from a citizen informant is sufficient by itself to provide law enforcement with reasonable suspicion to conduct a Terry stop. Maynard, 783 So.2d at 228.

In Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the United States Supreme Court provided an analysis for determining whether an anonymous tip was sufficiently reliable to support a Terry stop. In J.L., an anonymous caller reported to...