G. A. R., In Interest of, 78-590

• Decision Date: 30 July 1980
• Docket Number: No. 78-590,78-590
• Citation: 387 So.2d 404
• Parties: In the Interest of G. A. R., III, a child.
• Court: Florida District Court of Appeals

Page 404

387 So.2d 404

In the Interest of G. A. R., III, a child.

No. 78-590.

District Court of Appeal of Florida, Fourth District.

July 30, 1980.

Rehearing Denied Oct. 1, 1980.

Richard L. Jorandby, Public Defender, John M. Conway and Jorge Labarga, Asst. Public Defenders, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Glen H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.

HURLEY, Judge.

This is an appeal from a judgement finding appellant delinquent and committing him to the Department of Health and Rehabilitative Services for placement in an appropriate treatment program. Appellant suggests error in the denial of his motion to suppress evidence seized incident to his stop and temporary detention by police officers. We find that the police exceeded their authority under Section 901.151, Florida Statutes (1977), Florida's stop and frisk law, and consequently we reverse.

The circumstances leading to appellant's arrest occurred on a Saturday morning at approximately 11:00 A. M. An Oakland Park police officer received a BOLO (be on the lookout) which, in his words, was for

. . . a black male, maybe fifteen to twenty years of age, riding a green bicycle, wearing, I believe, dark pants and a dark shirt. . . . (T)his person appeared suspicious because of the way he was riding his bicycle, he was circling two or three times, looking into the various warehouses, which were open, although this was a Saturday.

The officer proceeded to an industrial area near 23rd Terrace and 30th Street which he characterized as a high crime area. There he observed appellant pedaling his bicycle very slowly along a public street. A circular saw was attached to the rack over the bicycle's rear fender. The officer stopped appellant, asked him why he was there and where he got the saw. Appellant responded that he had picked it up off the corner, approximately ten feet from where he was stopped, and that he was bringing it home to his father who fixed broken saws. Within a few minutes back-up officers arrived and, while the first officer continued to talk with appellant, another officer took the saw to a nearby business. He plugged it in, found that it worked and, upon inquiry, determined that the saw was missing from that business. Appellant was then arrested and charged with petty theft.

Section 901.151, Florida Statutes (1977) authorizes law enforcement officers to temporarily detain a person if circumstances "reasonably indicate" that such person "has committed, is committing, or is about to commit" a crime. To justify temporary detention, "founded suspicion" in the mind of the detaining officer is required. State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978).

Since this case involves an anonymous tip, it constitutes an exception to the general rule that "(t)he circumstances surrounding a stop 'are not to be dissected and viewed singly; rather they must be considered as a whole.' " United States v. Price, 599 F.2d 494, 501 (2d Cir. 1979); United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977). The tip's anonymity requires that it be extricated from the admixture of information and be viewed independently. Only if found credible will it be returned to the amalgam and weighed with the whole. This approach is at odds with some of our earlier holdings and so we take this opportunity to revisit them.

In St. John v. State, 363 So.2d 862, 863 (Fla.4th DCA 1978), we discussed the weight to be ascribed to an anonymous tip and announced an all-embracing rule:

In order for a bolo to justify such a stop there must be some showing by the state at a suppression hearing that the information contained in the bolo was reliable. If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon.

St. John relied heavily upon State v. Hendry, 309 So.2d 61 (Fla.2d DCA 1975) and Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977), two cases which disallowed 901.151 detentions based solely on anonymous tips. This line of authority, however, was critically reevaluated in State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979), where, after a comprehensive review of stop and frisk case law, the court concluded " . . . that an anonymous tip can provide the basis for a valid stop." Id. at 838.

We acknowledged Hetland and to some extent adopted its holding in Isham v. State, 369 So.2d 103 (Fla.4th DCA 1979). Isham involved an anonymous telephone call to the police advising them that the defendant was on a certain street corner attempting to sell drugs to two females. The caller gave a detailed description of the defendant and his clothing. Plainclothed detectives went to the scene and spotted the defendant walking toward them. When one officer identified himself, Isham attempted to flee, but was detained and searched by the police. Analyzing the facts, the court held that the anonymous call gave the police a right, and perhaps a duty, to respond and investigate. At a minimum, the court said, this included the right to seek an interview with the defendant. ¹ Next the court found that with all that had gone before, Isham's attempt to flee created a founded suspicion sufficient to justify a stop. The search, however, was found to be unwarranted. Nonetheless, the court implicitly accepted the Hetland rationale and stated ". . . that had the anonymous tip included information that the appellant was armed, a frisk would have been justified." Id. at 104.

The upgrading of a tip because of the mention of a gun is not new. One of the first cases to advance the proposition was People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1,, 229 N.E.2d 581 (1967), appeal dismissed, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968). The New York Court of Appeals noted its reservations in permitting the use of anonymous information, but found the existing balance of interests required its use in exigent circumstances where police must respond to matters gravely affecting personal or public safety or irreparable harm to property of extraordinary value. State v. Hetland, supra, carefully considered and then rejected the gun/grave danger test, finding that in the case by case evolution of stop and frisk law, ". . . the validity of a stop has not been measured in terms of the nature of the criminal activity involved, but rather on the information and circumstances known to the law enforcement officer." Id. at 835.

We are persuaded that State v. Hetland is a correct formulation of the law and so we join our sister court in holding that an anonymous tip can provide the basis for a valid stop. ² We recede from the statement to the contrary in St. John v. State, supra, and from the suggestion in Isham v. State, supra, that the mere mention of a gun will justify an otherwise impermissible stop or frisk. At the same time, we emphasize that before an anonymous tip can figure in the information relied on to justify a 901.151 stop or frisk, it must contain sufficient indicia of reliability so that a reasonably prudent person would infer that its content is accurate. Each case will have to be evaluated on the basis of its own facts and ultimately the circumstances surrounding the stop will have to be considered as a whole.

Turning again to the facts of the case at bar, we find that the information given by the anonymous caller was sufficiently detailed to raise the inference that it was accurate. "Such detail carries a strong indication that the information is based on the personal observation of the informant." State v. Hetland, supra, at 839. Thus the propriety of the investigatory stop and detention must be determined in light of all of the information known to the officer and with due regard for the maxim that a trained law enforcement officer may be ". . . able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." Brown v. Texas, 443 U.S. 47, 52, n.2, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 358 (1979).

Irrespective of whether the...