Smith v. State

• Decision Date: 04 November 1998
• Docket Number: No. 97-339,97-339
• Parties: 23 Fla. L. Weekly D2444 Winston SMITH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1018

719 So.2d 1018

23 Fla. L. Weekly D2444

Winston SMITH, Appellant, v. The STATE of Florida, Appellee.

No. 97-339.

District Court of Appeal of Florida Third District.

Nov. 4, 1998.

Bennett H. Brummer, Public Defender, and Kirk A. Barrow, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, Christine E. Zahralban, Assistant Attorney General, for appellee.

Before COPE, FLETCHER and SORONDO, JJ.

SORONDO, Judge.

Appellant Winston Smith appeals the lower court's denial of his motion to suppress, following a plea of nolo contendere to charges of carrying a concealed firearm and unlawful possession of a firearm or weapon by a violent career criminal, where he specifically reserved his right to appeal. We affirm.

The State and Smith stipulated that the facts contained in the information and other charging documents, as well as the facts testified to at the suppression hearing, if proven, would have established a prima facie case. At the suppression hearing, the State called Curtis Clark, Senior Special Agent for the United States Immigration and Naturalization Service (INS), on the question of whether Clark's January 1, 1996 request of Metro-Dade Police Officers to stop Smith exceeded his legal authority.

The record reflects that Clark testified to the following: On January 1, 1996, Smith was stopped by Metro-Dade Police Department Detective John Colangelo, on instructions of Clark. On the date in question, Clark had information, obtained from Smith's INS file and an INS computer printout, that Smith was involved in a pending deportation proceeding, was always armed, and had been previously apprehended by INS. Clark suspected Smith was in violation of his immigration status based on the information that he received from the INS computer printout, and thus believed Smith was a criminal alien. Clark, who had been with the INS for approximately 23 years, explained that he was looking for another young man known to be illegally in the country after having been deported as a criminal alien, and the information was that he would be at a certain address at a certain time and that Smith would probably be with him. While en route to the house, Clark called Metro-Dade police and asked for their assistance.

Smith drove up to the address as Clark was preparing to leave. Smith was a passenger in the car. Clark had a photograph and a description of Smith and immediately recognized him. The purpose for stopping Smith was to determine what his exact deportation status was and whether he was carrying a weapon. As an INS agent, it is Clark's responsibility to stop and ask for proof of I.D. and immigration status from those believed to be illegally in the country. Upon recognizing Smith, Clark requested that Colangelo stop the car. After stopping the car, Colangelo removed Smith from the car and patted him down. Clark was standing right next to Colangelo when Colangelo conducted the pat down and discovered a semi-automatic pistol Smith was carrying. There were other Metro-Dade officers and FBI agents present, acting under Clark's direction. He had worked with this same team of officers on four or five prior occasions.

Smith presented the testimony of Janice Wilson, who was driving the car in which Smith was a passenger. According to Wilson, she and Smith were going to meet a friend, and they were stopped by police for running a red light. Wilson was not given a citation for any traffic violation.

Smith also presented Colangelo's testimony, who testified to the following: He was assigned to assist Clark in looking for illegal or wanted aliens and to assist him in a police function as a Metro-Dade police officer. He stopped Smith's car at Clark's request. This was not a traffic stop. On stopping the car, Colangelo approached the stopped vehicle with his gun drawn and requested that Smith put his hands up in the air. Colangelo then opened the passenger door and requested that Smith put his hand on the roof of the car. Assisted by Detective Ruesga, Colangelo held Smith's arms and patted him down for weapons. Colangelo stated that although he stopped the car on Clark's request, he did the rest for officer safety. Colangelo stated that at the time he requested Smith to exit from the car, Colangelo had no idea who Smith was and had no idea whether he was armed or not. Not knowing these things, he had to assume the worst, so he patted Smith down. Colangelo stated that Smith was arrested after the weapon was found in his waistband and that he was not free to leave after exiting the car.

The trial court denied Smith's motion to suppress, finding that in this particular situation, based on Clark's request to stop the car and based on Colangelo's testimony, Colangelo was allowed, for officer safety, to determine whether or not any of the individuals in the car were armed. Thus, the pat down was permissible because the Court was satisfied that the actions were not in violation of Smith's Fourth Amendment rights.

We note that decisions of a trial court in considering a motion to suppress come to an appellate court clothed with a presumption of correctness, McNamara v. State, 357 So.2d 410 (Fla.1978), and a reviewing court will interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to such a ruling. See Glas v. State, 329 So.2d 341 (Fla. 3d DCA 1976); State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989).

I.

We begin with Smith's first point on appeal. Smith argues that in order to lawfully stop the car in which he was traveling, the officers must have had a well-founded suspicion of criminal activity or cause to believe that there was a traffic violation. See Payne v. State, 654 So.2d 1252 (Fla. 2d DCA 1995). In support of this contention, Smith states that Colangelo testified at the suppression hearing that he was instructed to stop the car by Clark, he was not told why to stop the car or whether the occupants were believed to be wanted or armed. Thus, there was no evidence to establish a founded suspicion of criminal activity, or that a traffic violation had occurred.

The State responds that Clark acted within his legal authority in requesting that the car in which Smith was a passenger be stopped because Clark's main purpose was to check Smith's immigration status. We agree with the State's contention.

When an officer of the INS is able to articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country, he is allowed to investigate a person's immigration status. Title 8 U.S.C. § 1357(a)(1) (1996) authorizes any officer or employee of the INS, without a warrant, to interrogate any alien or person known to be an alien as to his right to be or remain in the United States. See United States v. Alvarez-Sanchez, 774 F.2d 1036, 1041 (11th Cir.1985). In order to justify a seizure, however, the agent must articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Benitez-Mendez v. Immigration and Naturalization Serv., 760 F.2d 907, 909 (9th Cir.1983), as amended (1985).

In order to justify the stop in this case, Clark must have had a reasonable suspicion that Smith was an illegal alien in this country. Clark testified that he requested that police stop Smith and inquire into Smith's immigration status because Smith was previously apprehended by INS, was involved in a pending deportation proceeding, and was known to be always armed. These facts were sufficient to establish the reasonable suspicion necessary to justify Smith's detention.

However, because Colangelo, not Clark, was the officer who actually stopped Smith, the facts here necessitate the application of the "fellow officer" or Whiteley rule. The "fellow officer" rule, first adopted in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), allows an arresting officer to rely upon the strength of a directive or bulletin on a suspect and assume probable cause exists to arrest the particular person identified in the bulletin; thus, the arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. See Carroll v. State, 497 So.2d 253 (Fla. 3d DCA 1985). It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received his information from some person, usually the victim, official source, or eye witness, who it seems reasonable to believe is telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The "fellow officer" rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, and between federal and state or local authorities. See generally 3 Wayne R. LaFave, Search and Seizure, § 3.5(b), at 257-58 (1996). Thus, when a law enforcement officer with information amounting to probable cause directs an officer who lacks the knowledge to make the arrest, the directing officer's knowledge is imputed to the arresting officer. See Illinois v. Andreas, 463 U.S. 765, 771-72 n. 5, 103 S.Ct. 3319 n. 5, 77 L.Ed.2d 1003 (1983) (explaining that the knowledge of one official is "presumed shared" by others cooperating in an investigation). The "fellow officer" rule has been applied in cases where only a reasonable suspicion, and not probable cause, was required. See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir.1976)(noting that although Whiteley involved probable cause rather than founded suspicion, "we perceive no substantive difference between the two doctrines that would warrant a different result")...