Lachs v. State, 77-2362

• Decision Date: 31 January 1979
• Docket Number: No. 77-2362,77-2362
• Citation: 366 So.2d 1223
• Parties: Deborah LACHS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1223

366 So.2d 1223

Deborah LACHS, Appellant, v. STATE of Florida, Appellee.

No. 77-2362.

District Court of Appeal of Florida, Fourth District.

Jan. 31, 1979.

Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.

LETTS, Judge.

This appeal is from the trial court's denial of a motion to suppress evidence obtained as a result of a stop and frisk. We affirm.

The facts reveal a radioed BOLO transmitted to two police officers on routine patrol at 8:00 o'clock Friday evening. The report directed the officers to proceed to the Big Savoy Bar because its manager had called to report "a black male subject, dressed in a blue denim outfit with a hat and a white female subject (the appellant) in his company . . . dealing in narcotics in the bar and . . . at this time, standing outside the bar smoking a marijuana cigarette." The officers were well acquainted with the bar in question, it being located in a high crime, drug infested area described as "one hundred percent black." They responded and on arrival at the bar, immediately espied, outside the front door, the female appellant and her black companion exactly as described in the radio dispatch. The officers could see neither drug dealing nor pot smoking on arrival, however the two conversing suspects immediately separated and walked hastily in opposite directions, as soon as they saw the police arrive. Thereupon, without resort to the bar manager, one of the officers stopped the quickly departing appellant and asked her for identification. When she opened her pocketbook to provide same, the officer then made a plain view seizure of a supposed "nickel bag" which he preliminarily determined to be marijuana after inspecting its contents. He thereupon placed the appellant under arrest.

We have repeatedly written on Florida's "stop and frisk" law, Section 901.151, Florida Statutes (1977) and would normally see no reason for yet another opinion. However, the claim is made here that this stop was predicated upon an anonymous BOLO on which the police were not entitled to place reliance. This variation merits discussion and provides a springboard for a recapitulation of the existing stop and frisk law as we view it.

In a very recent case, we reiterated that "in order for a BOLO to justify a stop there must be some showing . . . that the information contained in the BOLO (is) reliable. If the police receive the BOLO information from some unknown tipster, it (does) not carry the credibility necessary to justify reliance thereon. . . . The state . . . must adduce proof to support the reliability of the information contained in the BOLO . . . ." Barry St. John v. State, 363 So.2d 862 (Fla. 4th DCA, Opinion filed November 1, 1978.)

We are of the opinion that the state adduced such proof in the case now before us. This was not an anonymous tip from a unknown tipster, it was a telephoned complaint from an identified citizen who gave his occupation and address, the latter well-known to the police. See State v. Harrington, 307 So.2d 466 (Fla. 2d DCA 1975). It is true that the officers were not supplied with the actual given name of the complaining bar manager. Nonetheless he was fully identified by occupation and address and we are of the opinion that this was sufficient. In such situations complaints by fully identified law abiding citizens are entitled to as much credibility as those of paid informers or the victims themselves. State v. Harrington, supra. An actual eyewitness to a crime is as capable of reporting it, as is the victim. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, for example, a BOLO declaring that one, John Q. Citizen, has just witnessed a stabbing at a particular address, accompanied by an accurate description of the assailant who is thereupon seen walking away from the scene by arriving police, is sufficient to justify a stop of that alleged assailant. To require the police to first carefully examine the reporting witness to determine whether the latter knows a stabbing when he sees one, would probably result in the escape of the assailant which consequence is directly opposite to the very purpose of the stop and frisk statute. Said statute authorizes a stop whenever circumstances "reasonably indicate that . . . a person has committed, is committing or is about to commit a violation . . . ." As Justice Alderman said in State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978):

To justify temporary detention, only "founded suspicion" in the mind of the detaining officer is required. Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974); State v. Ebert, 251 So. 2d 38 (Fla. 2d DCA 1971). A "founded suspicion" is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. "Mere" or "bare" suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.

See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.

Assuming that reasonable men might differ in the case at bar, we apply the above quoted Stevens criteria and find the following:

1. As to time: A report of a crime in progress, at the very moment the BOLO, was received. No inordinate passage of time occurred between the BOLO and the stop. (This time factor can also be applied to the hour of the day, as it was in Stevens (late Sunday night). In the instant case, 8:00 P.M. on a Friday night, in a bar was of no significance.)

2. As to day of week: This is irrelevant in the case at bar, however, in Justice Alderman's decision it Was relevant, in that a city supply yard is highly unlikely to be conducting business late on a Sunday evening.

3. As to location: The exact address at which the crime was being committed was given to the police.

4. As to physical appearance of the suspects: A comprehensive description of her companion was given and appellant was still in his company at the precise location.

5. As to behavior: The unexplained hasty departure in opposite directions as soon as the police cruiser appeared.

6. As to appearance and operation of an involved motor vehicle: This is inapplicable here.

7. As to incongruity: There was testimony that the presence of a white female at this all black bar was unusual. We are not so foolish as to believe, or suggest, that the presence of one caucasian in a so-called all black bar, constitutes a founded suspicion of a crime being committed. The era has thankfully gone when one could be "reasonably" presumed to have committed a crime because of skin color. Nonetheless, like it or not, it would ignore reality to suggest in the case before us, that the appellant's presence would not come under Justice Alderman's definition of something "incongruous or unusual in the situation as interpreted in the light of the officer's knowledge" and all the other surrounding facts.

8. As to reliability of the BOLO: The report was received from an identified eyewitness to the crime describing the infraction and giving a precise address.

No doubt, no One of the above, particularly the seventh, would in and of itself give rise to a founded suspicion. Nor do we suggest that the numbered list is exclusive or that the presence of All of these factors is required. Nevertheless, in the case now before us, we are of the opinion that there was much more than a "bare suspicion" as defined by Judge Moore in Delp v. State, 364 So.2d 542 (Fla. 4th DCA 1978). Rather we are convinced that in "the light of the officer's knowledge" (Stevens, supra, 1247) and under the totality of the circumstances, there was a founded suspicion to justify a stop.

For comparison, we refer to another recent case in which this author and Judge Beranek came to a contrary result. See Hall v. State, 366 So.2d 865 (Fla. 4th DCA 1979). In this latter situation, the police BOLO reported that the owner of a clothing store called to complain of "suspicious behavior" by blacks at his store. Responding thereto, the officers observed two blacks leave the store and drive off, all in a perfectly normal manner and the officers hurriedly enquired of the owner about the nature of the suspicious behavior. The answer was not that the suspects had been seen shoplifting or engaging in any other action suggestive of such activity. Instead, the suspicions had been aroused merely because the same blacks had already visited the store twice before that day and had bought nothing. Based on this information the stop was made. We are of the opinion that there is a world of difference in the two cases. In Hall, supra, the incident occurred during normal business hours and there was no actual report of a crime. The report was no more than a "bare suspicion" on the part of the alleged victim never mind the police. Such being so, the officers should have investigated further before making a stop because we cannot suppose a "founded suspicion"...