Sanchez v. State

• Decision Date: 31 August 2016
• Docket Number: No. 4D12–1395.,4D12–1395.
• Parties: Lorenzo SANCHEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

199 So.3d 472

Lorenzo SANCHEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 4D12–1395.

District Court of Appeal of Florida, Fourth District.

Aug. 31, 2016.

Carey Haughwout, Public Defender, Ian Seldin and Jonathan Dodson, Assistant Public Defenders, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Jessenia Concepcion and Laura Fisher, Assistant Attorneys General, West Palm Beach, for appellee.

CORRECTED OPINION

GROSS, J.

On the morning of July 30, 2008, there was a robbery at AMIGO Food Store in Pompano Beach, Florida. During the robbery, gunshots were fired and the store owner was killed. Several 911 calls prompted law enforcement to broadcast BOLOs about the suspects. Appellant was a passenger in a car that was stopped pursuant to one of these BOLOs, leading to appellant's arrest. Appellant moved to

199 So.3d 474

suppress, arguing the stop was unreasonable and in violation of the Fourth Amendment. The trial court denied appellant's motion. After a jury trial, appellant was found guilty of first-degree felony murder. We reverse because the officer lacked reasonable suspicion to make the stop.

Standard of Review

“The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court's factual findings but review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). “[A] trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Consistent with the standard of review, we review the evidence in the light most favorable to the state.

The Stop

Starting at 9:52 a.m., a few minutes after the robbery, several BOLOs were broadcast. Prior to the first officer's arrival at the scene, the BOLOs described Haitian males fleeing westbound from the store on foot. From 9:52 a.m. until 10:02 a.m., the police stopped every black male near the convenience store—some were on foot, others on bicycles.

The arresting officer received a radio call at approximately 9:56 a.m. and arrived near the perimeter of the crime scene within 2–4 minutes. The only BOLO he heard was for “two black males fleeing westbound from the store.”¹ At the time of the stop, the officer had no further information about the suspects—he had received no information describing clothing or a vehicle.

While driving within a few blocks of the crime scene, the arresting officer saw two black males in a red Dodge Charger travelling northbound and then eastbound. The two cars passed one another going in opposite directions. The officer observed the driver's dreadlocks and noted that the passenger was seated in the rear seat furthest away from the driver. The passenger wore a white t-shirt and a large hat the officer later described as an “old grandma church hat, or turban/1930's flapper hat drawn down to his eyebrows.” Neither the driver nor the passenger made eye contact with the officer, which the officer found suspicious.

Although the arresting officer witnessed no traffic violation, the sum of the odd seating arrangement, the backseat passenger's funny looking hat, and lack of eye contact, in conjunction with the outstanding BOLO, prompted the officer to make a U-turn and perform a traffic stop. After the officer activated his lights and the vehicle slowed down, the officer noticed a third black male in the front passenger seat. The arresting officer and an assisting officer approached the car with guns drawn.

After the close of the evidence at the suppression hearing, the state argued there was sufficient reasonable suspicion to justify the stop, considering the BOLO together with the officer's observations and experience. The state argued it was reasonable for the arresting officer to conclude there was an escape vehicle awaiting

199 So.3d 475

the suspects. Additionally, under the totality of the circumstances—the proximity of the stop to the crime scene, the rear passenger wearing a hat consistent with concealing his identity, the suspects in the only car on the road at the time of the stop, and a third person, who became visible to the officer once his lights were activated—the state argued there was reasonable suspicion to justify the stop.

Appellant countered that the police were systematically pulling over any black males in the area based on a vague BOLO, and such conduct fails to provide articulable facts which warrant a finding of reasonable suspicion. Appellant argued he was not stopped for any infractions, but rather for “driving while black.”

Based on the totality of the circumstances, the trial court denied the motion to suppress finding the stop to be reasonable.

Analysis

“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Id. at 123–24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868 ). There must be “at least a minimal level of objective justification for making the stop.” Id. at 123, 120 S.Ct. 673.

When deciding if there is sufficient reasonable suspicion to conduct a stop pursuant to a BOLO, factors to consider include “the length of time and distance from the offense, route of flight, specificity of the description of the vehicle and its occupants, and the source of the BOLO information.” Sapp v. State, 763 So.2d 1257, 1258–59 (Fla. 4th DCA 2000). Moreover, “the time of day, the absence of other persons or vehicles in the vicinity of the sighting, any other suspicious conduct, and other activity consistent with guilt” may weigh into the analysis. Id. at 1259. “Whether an officer's suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop. ” Exantus–Barr v. State, 193 So.3d 936, 939 (Fla. 4th DCA 2016) (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001) ) (emphasis added).

When considering these factors, courts evaluate the number of connections between the BOLO and the stopped suspects, the degree of specificity of those connections, and additional suspicious conduct. For example, Exantus–Barr included a BOLO for a “black male, approximately six foot tall, thin build, short-cropped hair, wearing a black shirt, blue jeans, prescription glasses and a black bandana covering his face from the nose down” who had fled south from the crime scene with a stolen iPhone. Id. at 938. This court upheld the traffic stop because the suspects were detained south of the crime scene, an iPhone app was pinpointing the phone's location, and the stopped individuals were “consistent with the victim's description.” Id. at 939.

Similarly, State v. Jemison involved significant connections between a BOLO and a traffic stop. 171 So.3d 808, 809–10 (Fla. 4th DCA 2015). The BOLO was for a “white Tacoma pick-up truck, newer model, with dark tinted windows, heading in an unknown direction.” Id. at 809. This court found the traffic stop reasonable because the defendant was stopped in a car that matched the BOLO and the officer

199 So.3d 476

who conducted the stop was positioned on the only route of escape from the scene. Id. at 811–12. Furthermore, the officer noticed the defendant circle the neighborhood and cut in front of a car to make a turn, suspicious conduct that added to the totality of the circumstances. Id. at 810.

On the other hand, reasonable suspicion does not arise from a vague BOLO with minimal connections to the person stopped and no other overtly suspicious conduct.

For example, the BOLO in M.M. v. State described “two white males [who] had just robbed the victim at gunpoint and fled the area on foot.” 80 So.3d 1125, 1126 (Fla. 4th DCA 2012). This court held that the description lacked specificity, such as height, weight, age, clothing, and speed or direction of travel, and therefore provided insufficient grounds to stop the defendant. Id. at 1127. Moreover, the officer did not see the defendant engage in suspicious conduct suggesting involvement in the crime. Id.

Likewise, in Rodriguez v. State, this court held that the minimal connections between a BOLO and the defendant did not justify the stop. 948 So.2d 912, 914–15 (Fla. 4th DCA 2007). The BOLO in Rodriguez described a robbery suspect's race, sex, height, and clothing, and did not...