Campuzano v. State

• Decision Date: 08 November 2000
• Docket Number: No. 4D99-4355.,4D99-4355.
• Parties: Jose CAMPUZANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

771 So.2d 1238

Jose CAMPUZANO, Appellant, v. STATE of Florida, Appellee.

No. 4D99-4355.

District Court of Appeal of Florida, Fourth District.

November 8, 2000.

Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michael J. Neimand, Assistant Attorney General, Fort Lauderdale, for appellee.

GROSS, J.

Jose Campuzano timely appeals his November 17, 1999 conviction and sentence for possession of cocaine with intent to sell. Campuzano contends that the trial court erred by denying his motion to suppress evidence seized after he was detained and patted down by a police officer responding to an anonymous tip. Campuzano entered a nolo contendere plea and reserved his right to appeal the denial of the motion to suppress, a ruling that was dispositive of the case. Holding that the stop, pat down, and seizure met constitutional requirements, we affirm.

At about 9:00 p.m. on June 2, 1999, Officer Dominique Fusca received an anonymous call stating that Jose Campuzano would be executing a drug transaction at the Riverbridge Plaza at 11:00 p.m. that night. The caller stated that Campuzano would be driving a white, two-door 1984 Oldsmobile Cutlass with a blue vinyl top. The caller further stated that Campuzano "would have 28 grams of cocaine on him" and that he was going to meet a white female and white male to sell them the cocaine.¹ According to the caller, the "cocaine was going to be in [Campuzano's] pocket."

Officer Fusca, along with Sergeant Grosser and Agent Jordan, conducted surveillance at the Riverbridge Plaza. Right before 11:00 p.m., they observed a white, two-door 1984 Oldsmobile with a blue vinyl top circling the plaza. The vehicle backed into a parking space. Campuzano and a blonde, white female got out of the car. Officer Fusca knew Campuzano from a prior arrest. During that arrest, Campuzano fled in a car, forcing officers to jump out of the way of the car to avoid being hit.

After exiting the vehicle, Campuzano spoke to a white female and white male for forty-five seconds. Then he and the blonde woman entered a restaurant, Duffy's Draft House. Officer Fusca and Sergeant Grosser followed the couple into the restaurant and sat at the bar, where they watched Campuzano and his companion.

Shortly thereafter the white male and female with whom Campuzano had conversed in the parking lot entered the restaurant and sat down at the table with Campuzano and his companion. Officer Fusca, Sergeant Grosser, and Agent Jordan approached the table and asked Campuzano and the other people at the table to stand up. When Campuzano stood up, Officer Fusca noticed a bulge in his right pants pocket. Officer Fusca had been involved in "a couple of hundred" drug deals or drug arrests. He was concerned for his safety because it was "not uncommon that drug dealers have guns" and because of the prior incident where Campuzano had "attempted to run us over." The officers patted down Campuzano and his companions.

When Officer Fusca patted Campuzano down, he felt a hard bulge "with a powdery feel" in his right pants pocket. Based on his "training and experience," Officer Fusca thought the object felt like cocaine. When he pulled the object out of Campuzano's pocket, he was able to identify it as a plastic bag filled with cocaine. The officer then placed Campuzano under arrest. A search of the 1984 Oldsmobile uncovered more cocaine and a pill bottle filled with crack. The plastic bag retrieved from Campuzano's pocket contained 28.7 grams of cocaine.

The trial court denied the motion to suppress, finding that Officer Fusca properly relied on the anonymous call in investigating and patting down Campuzano. The order observed that the caller said that Campuzano would come to the Riverbridge Plaza in a white, two-door 1984 Oldsmobile Cutlass with a blue vinyl top carrying 28 grams of cocaine in his pants pocket and that he would meet an unknown white male and female to sell them cocaine. The judge also found that Officer Fusca justifiably patted down Campuzano and his companions based on his safety concerns arising from the prior incident with Campuzano and his experience that drug dealers commonly carry weapons.

The Stop

Campuzano first contends that Officer Fusca improperly stopped him because the anonymous tip was not sufficiently reliable to provide reasonable suspicion that Campuzano was engaged in criminal activity.

In order for the police to make an investigatory stop, there must be "`a reasonable suspicion,'" defined as "`a particularized and objective basis for suspecting the particular person stopped of criminal activity' based upon `the totality of the circumstances.'" Felton v. State, 753 So.2d 640, 642 (Fla. 4th DCA 2000) (quoting Graham v. State, 714 So.2d 1142, 1143 (Fla. 1st DCA 1998) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed. 621 (1981))).

An anonymous tip can give rise to reasonable suspicion warranting an investigatory stop, provided that the police sufficiently corroborate the tip through independent observation. For example, in Alabama v. White, 496 U.S. 325, 327, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an anonymous tipster informed the police that Vanessa White would be leaving an apartment at a particular time, driving a brown Plymouth station wagon with a broken right taillight to Dobey's Motel, with cocaine in her possession. The police saw White leave the apartment building, get into a brown Plymouth station wagon with a broken right taillight and drive the most direct route to Dobey's Motel. The police stopped the car just short of the motel. See id.

On these facts, the Supreme Court held that "the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that [White] was engaged in criminal activity," so that the investigative stop did not violate the Fourth Amendment. Id. at 331, 110 S.Ct. 2412. Significant to the Court's decision was the anonymous caller's "ability to predict [White's] future behavior, because it demonstrated inside information—a special familiarity with [White's] affairs." Id. at 332, 110 S.Ct. 2412. The Court explained:

The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities.

Id.

The facts corroborated by the police in this case present no less "indicia of reliability" than those in White. Id. at 327, 110 S.Ct. 2412. The anonymous caller predicted Campuzano's whereabouts two hours after the call by specifying the time and location of the meeting. The tipster correctly identified the car Campuzano would be driving, called Campuzano by name, and identified the number, gender, and race of the people he would be meeting. Also, the caller identified the location and amount of the drugs Campuzano would be carrying.

The number of details, both given and confirmed in this case distinguish it from the facts in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which the Supreme Court held that an anonymous tip that described a person carrying a gun was not sufficient to justify a stop and frisk of that person.

In J.L., the anonymous caller reported that a young, black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. See 120 S.Ct. at 1377. The police went to the bus stop and found three black males, one of whom wore a plaid shirt. See id. "Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct." Id. Based solely on the match of the defendant's description with that given in the anonymous call, the police approached the defendant, frisked him, and discovered a gun. See id.

The Supreme Court ruled that the tip in J.L. "lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case." J.L., 120 S.Ct. at 1379. The Court reasoned that the "anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." Id.

Here, the anonymous call was more like that in White, giving both descriptive details and predicting Campuzano's movements, than the tip at issue in J.L., which merely described the suspect's appearance and current location. See also Pinkney v. State, 666 So.2d 590, 592 (Fla. 4th DCA 1996)

(stating that using an anonymous tip as the basis for an investigatory stop challenges law enforcement to corroborate detailed and specific information through police investigation).²

The Pat-Down

Campuzano next argues that, assuming the stop was constitutionally permissible, the pat-down was improper, because insufficient facts existed to create a reasonable fear that Campuzano and his companions were armed. Both the Florida Stop and Frisk Law and case law provide that police officers are authorized to execute a pat-down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon. See § 901.151(5), Fla. Stat. (1999); State v. Webb, 398 So.2d 820, 825 (Fla.1981) (holding that although section 901.151(5) uses the term "probable cause," the legislature intended to adopt the federal standard for a stop and frisk, not a stricter standard). Moreover, the scope of the pat-down is limited to the extent necessary to protect the officer's safety. See Doctor v. State, 596 So.2d 442, 444 (Fla.1992)

.

In State v. Burns, 698 So.2d 1282, 1284 (Fla. 5th DCA 1997), the fifth district acknowledged that the presence of illegal drugs may create a reasonable...