R.E. v. State, 88-1278

• Decision Date: 21 December 1988
• Docket Number: No. 88-1278,88-1278
• Citation: 536 So.2d 1125,14 Fla. L. Weekly 2
• Parties: 14 Fla. L. Weekly 2 In the Interest of R.E., II, a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1125

536 So.2d 1125

14 Fla. L. Weekly 2

In the Interest of R.E., II, a child, Appellant, v. STATE of Florida, Appellee.

No. 88-1278.

District Court of Appeal of Florida First District.

Dec. 21, 1988.

Michael E. Allen, Public Defender, and David P. Gauldin, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., for appellee.

MILLS, Judge.

Appellant, a juvenile, seeks review of the trial court's order withholding adjudication of delinquency and placing him on community control. Appellant pled nolo contendere to misdemeanor charges of possession of cannabis and possession of alcohol by a person under 21 years of age, expressly reserving his right to appeal an adverse ruling on his motion to suppress physical evidence. For the reasons stated below, we reverse.

Appellant was charged with possession of cannabis, possession of paraphernalia, and possession of alcohol by a person under age 21. Appellant entered a plea of not guilty and filed a motion to suppress physical evidence that was seized from him in an alleged illegal stop. No testimony was heard at the suppression hearing. The facts, which were stipulated to by counsel, are as follows.

On September 8 or 9, 1987, C.W. Dias of the Levy County Sheriff's Department received a call from Harold Davis. Mr. Davis reported that he had been in a parking lot in Williston when he observed a meeting between two persons in a late model white automobile and other persons in a blue Pontiac. What appeared to be a key case passed between the cars and the occupants of the blue car opened the trunk of the white car. Although Mr. Davis did not see drugs or money change hands, the behavior of the participants suggested to him that a drug transaction had taken place. Mr. Davis identified the participants as white males and provided a partial license plate number for the white car.

On Saturday, September 12, Mr. Davis phoned the Sheriff's Department and again spoke with C.W. Dias. Mr. Davis stated "[the] distributors are back in action working the area again" but did not describe what he had seen. Only later, at his deposition, did Mr. Davis mention that he had seen the same white car make two or three encounters similar to the one he reported a few days earlier.

Upon receiving Mr. Davis' call, the Levy County Sheriff's Department contacted the Williston Police Department. Officer Lewis of the Williston P.D. received the message to be on lookout for a white Pontiac, tag number CEB-9?U, whose driver might be selling drugs; the fifth digit of the tag number was not provided. A short time later, Officer Lewis observed a white Pontiac, tag number CEB-92U. Although there was nothing to arouse suspicion and the driver was obeying the traffic laws, Officer Lewis stopped the car on the basis of the message he had received. In addition to the driver's failure to produce a license, Officer Lewis noticed that there were several cans of beer in the back seat and all of the three white male occupants appeared to be under age 21. Before an arrest could be made, Officer Miller arrived on the scene as a backup. Officer Miller noticed something wrapped in a towel under the driver's seat. He removed the towel and discovered a quantity of cannabis. A more complete search was conducted, and more cannabis was found.

Appellant's motion to suppress alleged that the initial stop of the vehicle was illegal because there was no "founded suspicion" that the occupants of the vehicle had committed, were committing, or were about to commit a crime as required by § 901.151, Fla.Stat., and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant added that the evidence must be suppressed as the fruit of an illegal search regardless of the propriety of the initial stop. When the trial court denied the motion, appellant changed his plea to nolo contendere expressly reserving his right to appeal the denial. In return for his plea, the state dropped the paraphernalia charge.

On appeal, the state concedes that the evidence is suppressible if the initial stop was improper. Since we find that the initial stop was not based upon founded suspicion we need not address appellant's claim that the subsequent search was illegal.

Section 901.151, Fla.Stat. (1987), authorizes law enforcement officers to temporarily detain persons when circumstances reasonably indicate that the person has committed, is committing, or is about to commit a crime. The statute has been interpreted as a codification of the federal standard for "stop and frisk" as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Webb, 398 So.2d 820 (Fla.1981). To be lawful, a stop must be based upon reasonable or founded suspicion and must not be the product of "bare suspicion." Coladonato v. State, 348 So.2d 326 (Fla.1977). Although reasonable suspicion should be articulable and based upon objective facts, the facts need not be personally observed by the officer making the stop; rather, it is sufficient if the facts that give rise to the suspicion are communicated to law enforcement through a reliable third party. Webb, 398 So.2d at 825. Thus, a stop can be based upon the contents of a BOLO (be on lookout) which is itself based upon the report of an informant, provided that the information is sufficient to raise a reasonable suspicion.

To determine whether information is sufficient to support a reasonable...