Grant v. State, 96-02505

• Decision Date: 21 August 1998
• Docket Number: No. 96-02505,96-02505
• Citation: 718 So.2d 238
• Parties: 23 Fla. L. Weekly D1969 Mark Anthony GRANT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 238

718 So.2d 238

23 Fla. L. Weekly D1969

Mark Anthony GRANT, Appellant, v. STATE of Florida, Appellee.

No. 96-02505.

District Court of Appeal of Florida,

Second District.

Aug. 21, 1998.

Rehearing Denied Sept. 24, 1998.

Ralph E. Fernandez, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Following a jury trial, Grant was convicted of burglary of a dwelling, grand theft, and possession of burglary tools. On appeal, he challenges the denial of his motion to suppress evidence seized after a stop of his vehicle, arguing that officers did not possess a reasonable suspicion of criminal activity to justify the stop. We affirm this issue for the reasons discussed in this opinion. He also raises issues regarding the sufficiency of the evidence and prosecutorial misconduct, which we find to be without merit and do not discuss.

Evidence presented at the suppression hearing revealed that at 4:00 a.m., a Hillsborough County Sheriff's Office dispatcher advised Deputy Marshall Piper that a citizen had just called 911 from Sylvia Lane and reported observing a large, dark, older model four-door sedan driving up and down Sylvia Lane with its headlights off. The deputy was aware that burglaries had been reported on that same street six to twelve hours earlier. Although the deputy did not testify at the suppression hearing regarding the identity of the citizen caller, he testified that the citizen caller was aware of the burglaries. Defense counsel acknowledged that the call to 911 was made by a victim of one of the earlier burglaries.

Deputy Piper testified that he responded quickly to the dispatch, arriving at Sylvia Lane approximately two to five minutes later. He described Sylvia Lane as a relatively small, residential street. Upon arriving, he saw a large, brown four-door sedan, with its lights on, turning from Sylvia Lane onto North Boulevard. The deputy observed no other traffic on those streets at that time. Deputy Piper turned his vehicle around to follow the brown sedan. He saw Grant, who was driving the brown sedan, look at him, turn away, and then look back in his mirror at the deputy. The deputy initiated a traffic stop. In Grant's vehicle, Deputy Piper observed a TV, a VCR, a camera, a big stuffed animal, and other miscellaneous items. The burglary victim arrived and identified the property in the vehicle. The deputy arrested Grant. At the conclusion of the hearing, the trial judge denied the motion to suppress. After his convictions, Grant appealed.

A trial court's ruling on a motion to suppress is presumed correct, and a reviewing court must interpret the evidence and reasonable inferences in the light most favorable to sustaining the trial court's ruling. See Jenkins v. State, 685 So.2d 918 (Fla. 1st DCA 1996). Here, the issue is whether the police were justified in stopping Grant's vehicle. " 'The police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause.' " State v. Gonzalez, 682 So.2d 1168, 1170 (Fla. 3d DCA 1996)(quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). In determining whether an officer possesses a reasonable suspicion of criminal activity to justify an investigatory stop, the totality of the circumstances must be taken into account. See Jenkins, 685 So.2d at 920. Factors that may be considered include: the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge. See Id.

We believe the facts in this case constitute an articulable, particularized basis for suspicion that Grant was or had been engaged in wrongdoing. See State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1995). Deputy Piper received information that, at 4:00 a.m., a vehicle without headlights was traveling up and down a small street that had been burglarized just hours earlier. Because the information came from a citizen-informant, the officer was entitled to presume its reliability. See Aguilar v. State, 700 So.2d 58 (Fla. 4th DCA 1997). Although the citizen-informant in this case did not witness the earlier burglaries, he was concerned enough about Grant's activities in light of those burglaries to call 911. At that point, Deputy Piper was assigned to investigate the citizen's complaint, and he immediately proceeded to do so. When he arrived, the only car he observed on that street matched the citizen's description. The deputy, too, was aware of the burglaries reported just hours earlier.

In two other cases with facts similar to this one, this court found a reasonable suspicion to exist, justifying an investigatory stop. In State v. Wise, 603 So.2d 61 (Fla. 2d DCA 1992), a deputy sheriff had experienced problems with trespassers attempting to steal his dogs. While he was at work, his wife called and reported that a light blue pickup truck with dog cages in the back was in their yard shining a spotlight. The information was later updated with the truck's direction of travel. Within minutes, another deputy stopped a dark blue pickup truck with dog cages, that was traveling in the direction and area reported. The first deputy's wife arrived and advised that the person stopped was not the person who had been at her home. Nevertheless, this court upheld the stop and a subsequent search, which revealed a concealed firearm and marijuana. The court reasoned that the wife's report of suspicious circumstances, which gave her reason to believe the truck's occupants were at least attempting to commit a misdemeanor theft of her dogs, provided the deputy with authority to investigate. See Wise, 603 So.2d at 63. In State v. Jenkins, 566 So.2d 926 (Fla. 2d DCA 1990), an officer stopped an individual who was riding a bicycle at 1:30 a.m. from a business section of town where there was no activity or businesses open. The officer observed the individual balancing on the handlebars a large cardboard box full of property and a plastic garbage bag "overflowing out of the box." Id. The court held that the cumulative impact of the time, the location, the suspect's appearance and behavior, his operation of the bicycle, and other unusual circumstances provided a sufficient basis for a founded suspicion of criminal activity to justify a stop of the individual. Id. at 927.

Under the totality of the circumstances in the instant case, we are unable to conclude that the deputy's stop of Grant's vehicle violated the Fourth Amendment's prohibition against unreasonable searches and seizures. U.S. Const. amend. IV.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry ¹ recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a...