Regalado v. State

• Decision Date: 16 December 2009
• Docket Number: No. 4D08-1609.,4D08-1609.
• Citation: 25 So.3d 600
• Parties: Fulvio REGALADO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

25 So.3d 600

Fulvio REGALADO, Appellant, v. STATE of Florida, Appellee.

No. 4D08-1609.

District Court of Appeal of Florida, Fourth District.

December 16, 2009.

Rehearing Denied February 10, 2010.

Samuel S. Fields of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Fulvio Regalado appeals his conviction and sentence for carrying a concealed weapon, contending that the trial court erred in denying his dispositive motion to suppress. Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop. The court erred in denying the motion to suppress. We reverse the conviction.

In the early hours of one morning, Officer Jeffrey Castro was finishing an off-duty detail in downtown Fort Lauderdale. He was in uniform and just getting into his police cruiser when a man approached him and said that "some guy was over there flashing his gun to a couple of friends." The informant explained that a man in a restaurant had raised his shirt, exposing the gun in his waistband to his friends at the table. He did not take the gun out of his waistband. The officer asked the informant to give him a description of the person who exposed the weapon. The informant provided the officer with a description of the man with the gun. As they were talking, appellant Regalado walked by, and the informant identified him as the man with the gun in the restaurant. Officer Castro asked the informant for his name, but he refused because he was scared. The informant then took off. In court the officer identified Regalado as the person who was pointed out to him by the informant.

Officer Castro then called dispatch and asked for more units to assist him. He noticed Regalado start to walk south on 1st Avenue in the Riverfront area. Despite the time, there was still a heavy crowd in the area. Castro started to follow Regalado. As the officer got within six or eight feet, he could see Regalado turn and look around. The officer observed a bulge in the suspect's waistband, which, from his training and experience, he believed was the butt of a pistol or handgun. Because Regalado and the friend with whom he was walking began to blend into the crowd, for the safety of the citizens of Fort Lauderdale and himself, the officer pulled his service weapon and called to the suspect at gunpoint, ordering him to the ground. Both Regalado and his friend complied. The officer patted down Regalado's shirt, felt the firearm, recognized it, and took it out. On cross-examination, the officer admitted that it is not against the law to carry a firearm and that when he ordered Regalado to the ground he was not free to leave. Regalado had not threatened the officer, nor had the officer seen Regalado threaten anyone else. The informant had not reported that Regalado had threatened anyone with a gun. The officer had not observed any crime take place.

The trial court denied the motion to suppress relying on Baptiste v. State, 959 So.2d 815 (Fla. 3d DCA 2007) (Baptiste I), in which the Third District held that a stop was permissible based upon a tip that a firearm was being openly displayed, when an anonymous informant revealed himself to the officers after the defendant was stopped but before the pat-down. After the denial of the motion, Regalado pled to the charge, reserving his right to appeal the denial of the motion to suppress.

Regalado appeals claiming the stop violated the Fourth Amendment. While much of the argument focuses on the status of the anonymous informant, we address the issue of whether the stop met the Terry requirements. We conclude that it did not.

Florida recognizes three levels of police citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla.1993). In order to justify an investigatory stop, police must possess specific, articulable facts that would warrant a man of reasonable caution in the belief that a person has committed, is committing, or is about to commit a crime. Id.; § 901.151, Fla. Stat.

The trial court relied on Baptiste I which was later reviewed and reversed by the supreme court. See Baptiste v. State, 995 So.2d 285 (Fla.2008) (Baptiste II). The state maintains that the supreme court's opinion in Baptiste II, however, would still support the denial of the motion to suppress based upon the facts of this case. We disagree that its reasoning would support the validity of the stop.

In Baptiste an anonymous informant called 911 to report that a man was waving a firearm in front of a grocery store. The first police officer to arrive on the scene saw Baptiste, who matched the description given by the informant, walking down the street with no visible gun. She stopped him at gunpoint. A second officer arrived and the two officers together ordered Baptiste to the ground. A person then approached the officers, indicating that he was the one who had called. He refused to give his name but confirmed that the person being held at gunpoint was the person identified in his anonymous call. The informant then left and was never identified. The officers patted Baptiste down. Baptiste told them he had a handgun, which they found in his front pocket. Baptiste was charged with unlawful possession of a firearm by a convicted felon and filed a motion to suppress, contending that the information provided in the anonymous tip was insufficient to establish a reasonable suspicion to detain him.

Key to the application of Baptiste II to this case is the fact that the officers there had received information from dispatch reporting a man waving a gun in front of a grocery store. The improper exhibition of a weapon is a crime. See § 790.10, Fla. Stat. ("[i]f any person having or carrying any . . . firearm . . . shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree"). Thus, the tip in Baptiste related criminal activity. The officers investigated and saw Baptiste walking down the street. They observed no suspicious behavior. Nevertheless, because of the report of the defendant brandishing the gun, one of the officers drew her gun and ordered Baptiste on the ground. After Baptiste was stopped, an unknown person emerged to say that he had called in the report. He then disappeared.

The Baptiste II court analyzed the case under the principles of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Reasonable suspicion of criminal activity may arise from tips that law enforcement receives, but whether tips can provide reasonable suspicion depends upon both the quantity and quality of the information, or its degree of reliability. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

The Baptiste II court determined that the tip called into 911 regarding the man waving his gun in front of the grocery store was an anonymous tip, because the tipster did not reveal himself to the police until after Baptiste was stopped. The court thus distinguished the tip in Baptiste from a citizen informant tip where a citizen approaches the police with information before the police encounter the suspect. Nevertheless, the court stressed that the information supplied by the tipster must be of illegal activity to constitute reliable information for investigation:

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a "citizen informant" who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale. See State v. Maynard, 783 So.2d 226, 228 (Fla.2001).

Baptiste II, 995 So.2d at 291 (emphasis supplied). The court looked to Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), which involved a truly anonymous tip that a juvenile standing at a bus stop had a gun. The possession of a gun by a juvenile is a crime in Florida. When officers checked out the tip, they observed the juvenile matching the description given in the tip but observed no suspicious behavior. The Supreme Court held that the Terry stop violated the Fourth Amendment. In doing so, the Court noted, "The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 529 U.S. at 272, 120 S.Ct. 1375 (emphasis supplied). Following J.L., the Baptiste II court held that...