Solino v. State

• Decision Date: 21 June 2000
• Docket Number: No. 4D99-2452.,4D99-2452.
• Citation: 763 So.2d 1249
• Parties: Barry SOLINO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

763 So.2d 1249

Barry SOLINO, Appellant, v. STATE of Florida, Appellee.

No. 4D99-2452.

District Court of Appeal of Florida, Fourth District.

June 21, 2000.

Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Barry Solino appeals his conviction and sentence for escape. Solino was charged by information with one count of escape in violation of sections 944.40 and 951.24(4), Florida Statutes (1997). Solino filed two separate motions to suppress the traffic stop which led to the escape charge; both were denied by the trial court. Solino was then tried in a non-jury trial and was convicted. The trial court erred in denying the first motion to suppress in which Solino alleged that there was no founded suspicion to make a stop. We reverse the conviction and sentence.

On January 23, 1999, Solino was driving with three friends when he was stopped by Palm Beach County Deputy Sheriff Milton Jacobs. Jacobs stopped Solino's vehicle, a green Nissan, after receiving information from an anonymous motorist driving a white SUV (sport utility vehicle), that a bottle had been tossed out the window of the green Nissan proceeding down the highway in front of the SUV. The driver of the SUV had flagged Jacobs down in order to relay this information. Deputy Jacobs did not obtain the name of the SUV driver nor did he record the license tag number of the SUV. Jacobs did not see the bottle thrown from Solino's car nor did he attempt to locate the bottle. He did not see Solino commit any traffic violation and he made the stop based solely upon the statement of the unidentified motorist.

Deputy Jacobs stated that upon stopping the Nissan, Solino, who was the driver, gave his name as "Barry Jervis" and stated that he did not have a driver's license. Deputy Jacobs conducted a pat down search and had Solino sit in his patrol car while he investigated the status of Solino's driver's license. Jacobs was unable to locate any information for "Barry Jervis" based on the stated date of birth. One of the passengers in Solino's car advised Jacobs of Solino's identity. Upon making a computer check, Jacobs found that Solino's license had been suspended and he was in violation of probation for a prior conviction of burglary. When questioned further, Solino admitted his identity. Deputy Jacobs told Solino he was under arrest for driving under a suspended license and for violation of probation. He ordered Solino out of the patrol car so that he could be placed in handcuffs at which time Solino ran from the scene and disappeared into a housing development. Solino argues that the stop was not based on a reasonable suspicion because the only indication of criminal activity was the unconfirmed report of an anonymous tipster. The state counters that the SUV driver was a citizen-informant and, therefore, independent confirmation of criminal activity was unnecessary.

In State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997), this court discussed the law with respect to investigatory stops and informants' tips. We stated:

An investigatory stop, like the one in this case, must be based upon "reasonable suspicion." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Among the definitions of "reasonable suspicion" is such suspicion as would "warrant a man of reasonable caution in the belief that [a stop] was appropriate." Id. at 22, 88 S.Ct. at 1880.

Not all tips are of equal value in establishing reasonable suspicion; they "may vary greatly in their value and reliability." ... Anonymous tips are at the low-end of the reliability scale:

The opinion in [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)] recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." Id. at 237, 103 S.Ct. at 2332.

Alabama v. White, 496 U.S. [325]at 329, 110 S.Ct. [2412] at 2415, 110 L.Ed.2d 301 [(1990)].

Because an anonymous caller's basis of knowledge and veracity are typically unknown, these tips justify a stop only once they are "sufficiently corroborated" by police. Id. at 330, 110 S.Ct. at 2416. Accord Pinkney v. State, 666 So.2d 590 (Fla. 4th DCA 1996)

(anonymous tip requires "detailed and specific information corroborated by police investigation" since the informant's veracity, reliability, and basis of knowledge are unknown).

Evans, 692 So.2d at 218 [Citations omitted]. However, an informant may not be deemed anonymous if his or her identity is readily ascertainable. "The cases support the proposition that an informant's actual name need not be known so long as her identity is readily discoverable." Id. at 219. This court in Evans went on to define a "citizen-informant."

Not only was [the informant] an identified informant, rather than an anonymous one, but she qualifies as a "citizen-informant," whose information is at the high end of the tip-reliability scale. "A citizen-informant is one who is `motivated not by pecuniary gain, but by the desire to further justice.'" As one commentator has explained:

[T]he courts have quite properly drawn a distinction between [informers likely to have been involved in the criminal activity] and the average citizen who by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty. One who qualifies as the latter type of individual, sometimes referred to as a "citizen-informer," is more deserving of a presumption of reliability than the informant from the criminal milieu.

Evans, 692 So.2d at 219 [Citations omitted].

The trial court in Evans granted a motion to suppress because the information which the police used to justify the stop was based on an uncorroborated, anonymous tip. Our court reversed the trial court's order to suppress and found that the tip which the police used to justify the stop provided a sufficient factual basis to establish that the informant was not anonymous and that the information conveyed was corroborated. Our court also concluded that the informant was a "citizen informant" which added to the reliability of the information justifying the investigatory stop.

The facts in Evans are distinctly different from those in the instant case. In Evans the information came from Drema Steel, a manager at McDonald's on U.S. Highway 1 in Vero Beach, who was working at the drive-thru...