Jenkins v. State

• Decision Date: 17 December 1996
• Docket Number: No. 95-4565,95-4565
• Citation: 685 So.2d 918
• Parties: 22 Fla. L. Weekly D40 Darrell JENKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 918

685 So.2d 918

22 Fla. L. Weekly D40

Darrell JENKINS, Appellant, v. STATE of Florida, Appellee.

No. 95-4565.

District Court of Appeal of Florida First District.

Dec. 17, 1996.

Rehearing Denied Jan. 30, 1997.

Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

LAWRENCE, Judge.

Darrell Jenkins (Jenkins) appeals his judgment and sentence for burglary of a structure, asserting as error the following two issues: (1) the trial court's denial of his pretrial motion to suppress; and (2) the trial court's denial of his motion to have his case transferred from the habitual offender division to another felony division. We affirm as to both issues.

At the suppression hearing, Officer Schoonover testified that, at 12:55 a.m., he learned that a burglar alarm had gone off at a Radio Shack store. Within three to ten minutes of receiving the dispatch, while en route to the store, he saw Jenkins riding a bicycle in a direction away from the crime scene. Jenkins was about one to one and a half miles away from the crime scene. Schoonover saw that Jenkins was carrying a large, apparently solid object in a white bag tucked up underneath his arm. The area in which he was riding was largely a business district, with businesses closed at that hour. Officer Schoonover testified that it is not common to see people riding bicycles in that area at that hour in the morning. He also testified that one of his officers had told him that an unidentified transient told him that the burglary problem they had been having in that area of town was being perpetrated by people on bicycles.

When Schoonover first saw Jenkins, he was "sitting down on the bike just pedaling normally." After he passed him, however, Schoonover observed Jenkins in his rearview mirror and saw him keep "turning around looking at [him]." Jenkins then stood up on his bike and started to pedal fast, in what appeared to be an attempt to get out of that area. Schoonover turned around and followed Jenkins, who made several turns. He then pulled alongside of Jenkins and told him to stop. Jenkins failed to stop and continued pedaling. Officer Schoonover then stopped him by pulling his car in front of Jenkins and blocking his path. As Officer Schoonover got out of his car, Jenkins stepped off of his bike, still clutching the bag. Schoonover asked him what he had in the bag and Jenkins responded by pulling the bag further away from the officer, as though he was trying to conceal its contents. Schoonover then looked inside the bag and saw two new-looking pieces of stereo equipment with the Radio Shack emblem on them. It was subsequently confirmed that this equipment belonged to the burglarized store.

The trial court denied Jenkins' motion to suppress, finding the stop was well-justified under the totality of the circumstances and that the officer acted reasonably in seizing the bag.

Jenkins argues the trial court erred in denying his motion to suppress because both the detention and the search were unlawful. He argues the officer lacked a reasonable suspicion to justify the investigatory stop. Even if the stop was valid, however, he argues the officer lacked probable cause to seize the bag he held. In response, the State argues the trial court properly denied Jenkins' motion to suppress as the totality of the circumstances justified the stop the officer made, and that this knowledge, together with Jenkins' furtive movements after the stop, provided legal cause to check the contents of the bag.

The trial court's ruling on a motion to suppress is presumptively correct and the reviewing court must interpret the evidence, reasonable inferences and deductions in a manner most favorable to sustaining the trial court's ruling. Johnson v. State, 608 So.2d 4, 9 (Fla.1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2366, 124 L.Ed.2d 273 (1993). Under section 901.151, Florida Statutes (1995), an officer may temporarily detain an individual for investigative questioning if the officer has a reasonable suspicion based on articulable facts that the individual is committing, has committed, or is about to commit a crime. ¹ Popple v. State, 626 So.2d 185 (Fla.1993)(citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In determining whether an officer possesses a founded suspicion of criminal activity to justify an investigatory stop, the totality of the circumstances must be taken into account. Moore v. State, 561 So.2d 625, 626 (Fla. 1st DCA 1990). The court may consider "the time of day, the day of the week, the location, the physical appearance and behavior of the suspect, the appearance and manner of operation of any vehicle involved or anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge." Gipson v. State, 537 So.2d 1080, 1081 (Fla. 1st DCA 1989)(quoting State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978)).

On facts similar to those in this case, this court and two sister courts have found the officer had a founded suspicion of criminal activity to justify an investigatory stop. In Harris v. State, 574 So.2d 243 (Fla. 1st DCA 1991), the officer saw the defendant and a juvenile riding their bikes single file at about 2:00 or 2:30 a.m. in a light rain. The juvenile in front was carrying a small portable television on his handlebars. The two were found riding in the vicinity of a golf course, a housing subdivision, a trailer park, and several businesses, which were closed at that time of the morning. In State v. Jenkins, 566 So.2d 926 (Fla. 2d DCA 1990), the officer stopped the defendant, who was riding a bicycle at 1:30 a.m., coming from the business section of town, where there were no vehicles or activity or businesses open. The defendant was balancing a large cardboard box full of some sort of property and a plastic garbage bag "overflowing out of the box" on the handlebars. Finally, in State v. Russell, 659 So.2d 465 (Fla. 3d DCA), review denied, 665 So.2d 220 (Fla.1995), the court found the officer had a reasonable suspicion to stop the defendant after he saw him in an alleyway behind closed businesses at 6:00 a.m., when it was still dark. The area was an exclusively commercial district which had recent burglaries, and the defendant was carrying a heavy bag containing squared-off objects that appeared to be appliances.

Like the officers in Harris, Jenkins, and Russell, Officer Schoonover had a well-founded suspicion of criminal activity based on the totality of the circumstances. Jenkins was riding a bicycle at about 12:55 a.m. in an area that was primarily a business district, with the businesses all closed at that hour. There had been some recent burglaries in the area. Schoonover spotted Jenkins just one to one and a half miles away from a Radio Shack store that had been burglarized minutes earlier. Jenkins was carrying what appeared to be a solid, large object in a white bag under his arm. The size and shape of the bag's contents were consistent with the type of products sold at the burglarized store. After passing Schoonover's patrol car and continuing in the opposite direction, Jenkins behaved suspiciously by continually looking back at the patrol car and then standing up on his bike and pedaling faster, as if to get out of the area as quickly as possible. Based on all these facts, Officer Schoonover had a founded suspicion of criminal activity to justify the temporary detention of Jenkins.

Armed with this pre-stop knowledge, together with a close-up look at the bag (appearing to encase large solid objects consistent with those sold at a Radio Shack store) and Jenkins' post-stop furtive movements, we agree with the trial judge that Officer Schoonover had probable cause to search Jenkins' bag. " 'Probable cause' means that the circumstances are such as to cause a person of reasonable caution to believe that an offense has been or is being committed by the person to be arrested." Bostick v. State, 554 So.2d 1153, 1155 (Fla.1989), reversed on other grounds, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Considering all the circumstances leading up to the investigatory stop together with the fact that Jenkins did not put the bag down when he was finally stopped, and then pulled the bag away from the officer as if to conceal its contents, there was probable cause to believe that Jenkins was involved in the burglary that had occurred minutes earlier in that...