Hernandez v. State
| Citation | 784 So.2d 1124 |
| Decision Date | 24 November 1999 |
| Docket Number | No. 98-2413.,98-2413. |
| Parties | Tomas HERNANDEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and M. Rebecca Springer, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and COPE and GREEN, JJ.
Tomas Hernandez appeals his convictions of burglary, grand theft, and possession of burglary tools. We affirm.
Defendant-appellant Hernandez first contends that the officer who apprehended him had no reasonable suspicion which would warrant the performing of an investigatory stop, and that therefore the evidence seized as a result of the stop should have been suppressed. We disagree.
At 3:00 a.m. a police officer received a call from the dispatcher regarding suspicious activity in the parking lot of an apartment complex. The police officer reached the apartment complex one minute later. He observed a white van parked in a regular parking space, with the front of the van facing the curb. Backed up to the white van was a red van. The rear doors of each van were open.
When the officer drove up, three of the four individuals standing by the vans walked away. The defendant attempted unsuccessfully to close the van doors and started to leave as well. The officer directed the defendant to stop and asked for identification. Upon checking, the officer found the defendant was wanted on an outstanding warrant for driving under the influence, and took him into custody.
Inside or just by the vans, the police found two air-conditioning units which had been stolen from a home under construction. The police also found pry bars and other tools.
The trial court heard evidence on the defendant's motion to suppress, and denied the motion. The court concluded that under the totality of the circumstances, the police officer had a founded suspicion that criminal activity was afoot, and that an investigatory stop was justified. See § 901.151, Fla. Stat. (1997). We entirely agree.
The question is whether the police officer had a reasonable suspicion a crime had been, was being, or was about to be, committed. See § 901.151(2), Fla. Stat. (1997). In making that determination, the court considers the totality of the circumstances. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)
; Jenkins v. State, 685 So.2d 918, 920 (Fla. 1st DCA 1996). Thus:
State v. Bell, 382 So.2d 119 (Fla. 3d DCA 1980) (quoting State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978)
); see also Jenkins v. State, 685 So.2d 918, 920 (Fla. 1st DCA 1996); State v. Russell, 659 So.2d 465, 467 (Fla. 3d DCA 1995); Brown v. State, 592 So.2d 1237, 1238 (Fla. 1st DCA 1992); Thornton v. State, 559 So.2d 438, 439 (Fla. 1st DCA 1990); State v. Pye, 551 So.2d 1237, 1238 (Fla. 1st DCA 1989); Johnson v. State, 547 So.2d 699, 701 (Fla. 1st DCA 1989); State v. Kibbee, 513 So.2d 256, 258 (Fla. 2d DCA 1987).
The officer does not have to actually observe a crime being committed. Reasonable suspicion can exist even though the suspicious activity is consistent with innocent activity. The United States Supreme Court has said:
"[I]nnocent behavior will frequently provide the basis for a showing of probable cause," and that "[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." That principle applies equally well to the reasonable suspicion inquiry.
United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citation omitted). Applying those principles here, the officer observed a white van properly parked in the apartment complex parking lot. It was 3:00 a.m. Backed up to the white van was a red van which had not been parked for the night. It was protruding into the driving area. The back doors of both vans were open.
At three o'clock in the morning an officer could reasonably suspect that the white van was being burglarized, with the contents being transferred into the red van. This type of activity and parking arrangement might be unremarkable in the daytime, but they are unusual at 3:00 a.m. These facts added up to a reasonable suspicion to conduct an investigatory stop.
Defendant's attempt to leave the area when he saw the police officer was not, by itself, enough to create a reasonable suspicion. See Cobb v. State, 511 So.2d 698, 699 (Fla. 3d DCA 1987). However, flight can be considered when there are other suspicious circumstances. Thus:
It is commonly held that flight at the sight of an approaching police officer is a suspicious circumstance which, when added to other suspicious circumstances, may justify the belief that the defendant was engaged in criminal activity and, therefore, an investigatory stop. See, e.g., A.E.R. v. State, 464 So.2d 152 (Fla. 2d DCA 1985)
(); State v. Bell, 382 So.2d 119 (Fla. 3d DCA 1980) (); Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979) (); Gibson v. State, 368 So.2d 667 (Fla. 3d DCA 1979) ().
Cobb, 511 So.2d at 699 (some emphasis added; some emphasis in original); see State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989)
; State v. Hoover, 520 So.2d 696, 698 (Fla. 4th DCA 1988); Manuel v. State, 526 So.2d 82, 85 (Fla. 4th DCA 1987); State v. Smith, 477 So.2d 658, 661 (Fla. 5th DCA 1985). In light of the already suspicious circumstances in this case, the attempt by defendant and his companions to walk away may be considered in deciding whether there was a reasonable suspicion. Drivers of motor vehicles do not normally walk away, leaving the doors open and, as to the red van, the vehicle protruding into the traffic area, as defendant and his companions did in this case.
In arguing for suppression, defendant relies on L.M. v. State, 694 So.2d 118, 119 (Fla. 3d DCA 1997). That case is not on point. In L.M. there had been an anonymous call to the police that a car was being burglarized in a fenced church parking lot. When the police officer arrived, there were several juveniles walking on the sidewalk adjacent to the church, but they were not in the fenced parking lot; the officer did not observe the juveniles doing anything unusual that would give rise to a founded suspicion; and there was not yet a confirmation that an actual car burglary had taken place. Under those circumstances, the court concluded that there was no founded suspicion. Here, by contrast, the officer directly observed unusual activity at an unusual hour which gave rise to a reasonable suspicion of criminal activity.1 We respectfully disagree with the position of the dissent. The dissent focuses on the reasons the officer gave for stopping the defendant, which were:
Based on the call we were receiving of suspicious activity, and finding the van back to back. And which as I asked him to approach me, he basically was walking towards the apartment complex attempting to avoid coming towards me.
(TR. 21). The dissent characterizes this testimony as an admission by the officer that "he stopped Hernandez solely upon the anonymous tip and Hernandez's evasive actions." Dissent at 17. But that analysis overlooks the officer's testimony that the reasons for the stop included "finding the van back to back." (TR. 21).
The important point is that the officer's legal conclusion on the issue of probable cause or reasonable suspicion is not binding on the trial court or this court. See State v. Sobrino, 587 So.2d 1347, 1351 (Fla. 3d DCA 1991)
. "The existence of probable cause is measured by an objective standard, not based on an officer's underlying intent or subjective motivation." State v. T.P., 588 So.2d 286, 287 (Fla. 3d DCA 1991) (); see also Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "Nor would the legal conclusion of the officer prevent the State from arguing and presenting evidence that probable cause did in fact exist." Routly v. State, 440 So.2d 1257, 1261 (Fla.1983).
The dissent is entirely correct in saying that the contents of the anonymous tip must be disregarded in the circumstances of this case, see note 1 supra, and is also correct in saying that flight—the defendant's effort to avoid the officer—standing alone, is not enough to give rise to a reasonable suspicion. But, as already stated, the vehicles were parked in an unusual way, at an unusual hour, which would reasonably give rise to a founded suspicion that criminal activity was afoot. Given these suspicious circumstances, flight could also be considered. The trial court correctly concluded that, under the totality of the circumstances, there was a reasonable suspicion to support an investigatory stop.2
As his second issue, defendant contends that the evidence was legally insufficient to convict him of the crime of possession of burglary tools under section 810.06, Florida Statutes (1997). The statute cri...
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