Cresswell v. State

• Decision Date: 10 May 1990
• Docket Number: No. 72494,72494
• Citation: 564 So.2d 480
• Parties: , 15 Fla. L. Weekly S287 Travis Harrison CRESSWELL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 480

564 So.2d 480

58 USLW 2719, 15 Fla. L. Weekly S287

Travis Harrison CRESSWELL, Petitioner, v. STATE of Florida, Respondent.

No. 72494.

Supreme Court of Florida.

May 10, 1990.

Rehearing Denied Aug. 21, 1990.

Alan E. Weinstein and Richard J. Preira of the Law Offices of Weinstein & Preira, Miami Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondent.

EHRLICH, Chief Justice.

We have for review Cresswell v. State, 524 So.2d 685, 686 (Fla. 5th DCA 1988), in which the following question was certified to this Court as one of great public importance:

MAY A PROFILE OF SIMILARITIES OF DRUG COURIERS, WHICH IS DEVELOPED BY A LAW ENFORCEMENT OFFICER AND WHICH, IN LIGHT OF HIS EXPERIENCE, SUGGESTS THE LIKELIHOOD OF DRUG TRAFFICKING, BE RELIED UPON BY HIM TO FORM AN ARTICULABLE OR FOUNDED SUSPICION WHICH WILL

JUSTIFY A BRIEF INVESTIGATORY DETENTION AFTER THE CONCLUSION OF A LEGITIMATE TRAFFIC STOP ON HIGHWAYS KNOWN TO THE OFFICER TO BE USED FOR THE TRANSPORT OF DRUGS?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. So long as the profile describes circumstances which would reasonably indicate to a law enforcement officer the existence of reasonable suspicion, we answer the certified question in the affirmative. While the profile in this case does not meet this requirement, the circumstances actually relied upon by the officer to detain Cresswell did indicate reasonable suspicion. We therefore approve the decision of the district court.

On March 27, 1985, the petitioner, Travis Cresswell, was travelling north on Interstate 95 in Volusia County. At 1:55 p.m., he was stopped by then Florida Highway Patrol Trooper Vogel for "following too closely," a traffic law violation. At that time, Trooper Vogel made the following observations:

1. Cresswell was very nervous;

2. Cresswell was travelling north on I-95, a known drug corridor;

3. the vehicle was a full-sized automobile with a large trunk;

4. Cresswell was alone in the vehicle;

5. Cresswell had a Massachusetts driver's license but the car had Maine license plates and registration and also New York state insurance and inspection stickers;

6. the car was registered to someone else;

7. there was a steering wheel lock on the floor beneath the driver's seat;

8. there were items on the back seat that were normally found in a trunk (i.e., an air pump, a tow rope, and tire cleaning material), as well as a suit bag;

9. the ignition key was separate from the other keys;

10. there was a CB radio in the car.

Because some of these observations matched his personally developed drug courier profile, ¹ Trooper Vogel decided to detain Cresswell in order to further investigate. Trooper Vogel issued Cresswell a warning for the traffic infraction, but retained Cresswell's driver's license and requested that he open the trunk. When Cresswell replied that he did not have the key, Vogel radioed for a narcotics dog. At 2:05 p.m., Cresswell refused to sign a consent form for a search of the trunk, and Vogel indicated that he was not free to leave. The narcotics dog arrived approximately forty to forty-five minutes later and alerted on Cresswell's trunk. The trunk was opened, marijuana was found, and Cresswell was arrested.

The trial court denied Cresswell's motion to suppress the marijuana. On appeal, the Fifth District Court of Appeal affirmed the trial court's decision, without discussion, and certified the question to this Court for resolution.

The initial stop was valid because a law enforcement officer is clearly entitled to stop a vehicle for a traffic violation. See Hansbrough v. State, 509 So.2d 1081, 1084 (Fla.1987). However, the stop must last no longer than the time it takes to write the traffic citation. State v. Anderson, 479 So.2d 816, 818 (Fla. 4th DCA 1985). In this case, Cresswell was detained for approximately forty-five minutes, the time necessary to obtain a narcotics dog. To justify such a detention, an officer must have a reasonable suspicion based on articulable facts that criminal activity "may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Reasonable suspicion is something less than probable cause, but more than an "inchoate and unparticularized suspicion or 'hunch.' " Id. at 27, 88 S.Ct. at 1883.

In determining whether an officer had reasonable suspicion in any given case,

the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

....

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981).

Recently in State v. Johnson, 561 So.2d 1139 (Fla.1990), this Court considered another investigatory stop and detention by Trooper Vogel pursuant to his "profile." In that case, this Court stated that "a 'profile' ... is permissible precisely to the degree that it reasonably describes behavior likely to indicate crime." Id., at 1142. This Court found that "there was nothing at all unusual or out of the ordinary about the conduct that constituted Trooper Vogel's 'profile,' " id., at 1142-43, and therefore that profile alone could not justify the stop in that case. As it related to the facts of that case, this Court answered a question similar to that certified in this case in the negative. ² However, if a profile describes circumstances which would reasonably indicate to a law enforcement officer the existence of criminal activity, that profile could validly be relied upon.

In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989), the United States Supreme Court stated that

[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a "profile" does not somehow detract from their evidentiary significance as seen by a trained agent.

Therefore, although the district court phrased its questions in both this case and Johnson in terms of whether an officer's "profile" may be relied upon, the United States Supreme Court has since made it clear that the proper question is not whether a "profile" of any kind may be used to justify an investigatory detention, but whether in each case the officer had reasonable suspicion based on articulable facts. We must therefore examine the totality of the circumstances presented in each case to determine if the stop or detention was valid.

In Johnson, the stop and detention were supported by the facts of "a late model out-of-state car driven by a thirty-year-old male at 4:15 in the morning, in accordance with all traffic laws and regulations." Op. at 1141. This Court found that these facts did not give rise to a reasonable founded suspicion. Further, this Court noted that the factors relied on by Trooper Vogel in that case "literally would permit police to stop tens of thousands of law-abiding tourists, businessmen, or commuters." Id., Op. at 1143.

By contrast, in Sokolow, the United States Supreme Court found that law enforcement agents had reasonable suspicion where they knew that Sokolow: (1) paid for two expensive plane tickets in cash of small denominations; (2) travelled under an alias; (3) travelled from Miami, a known source city for drugs; (4) travelled from Hawaii to Miami but only stayed a short time in Miami; (5) appeared nervous; and (6) did not check his luggage. 109 S.Ct. at 1583. The Court noted that "[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion." Id. at 1586. Cf. Johnson, 561 So.2d at 1143 ("even a sequence of lawful acts not rising to the level of probable cause may, in appropriate circumstances, so strongly suggest concealed criminal conduct as to justify a stop").

In the instant case, Cresswell was very nervous, was driving along a known drug route in a vehicle with a large trunk, had a Massachusetts driver's license but was driving a car registered to someone else with Maine license plates and New York state insurance and inspection stickers, there was a CB radio in the car, the ignition key was separate from the other keys, and the back seat contained items normally found in the trunk. Although these facts viewed individually could be consistent with legal behavior, when viewed together by a trained law enforcement officer such facts, "meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion." Cortez, 449 U.S. at 419, 101 S.Ct. at 695-696. Looking at the totality of the circumstances in this case, we find that the officer had reasonable suspicion justifying the continued detention of Cresswell. Unlike the circumstances of Johnson, this combination of circumstances hardly would describe a large number of innocent travellers. Indeed, we believe that the factors relied on in this case are at least as strong as those approved in Sokolow.

For the reasons set forth above, we approve the decision of the district court below.

It is so ordered.

OVERTON, McDONALD and GRIMES, JJ., concur.

SHAW, J., dissents with an opinion, in which BARKETT, J., concurs.

KOGAN, J., dissents...