State v. Johnson

• Decision Date: 10 May 1990
• Docket Number: No. 71631,71631
• Citation: 561 So.2d 1139
• Parties: , 15 Fla. L. Weekly S289, 37 A.L.R.5th 743 STATE of Florida, Petitioner, v. Paul Clive JOHNSON, Respondent.
• Court: Florida Supreme Court

Page 1139

561 So.2d 1139

58 USLW 2719, 15 Fla. L. Weekly S289, 37 A.L.R.5th 743

STATE of Florida, Petitioner, v. Paul Clive JOHNSON, Respondent.

No. 71631.

Supreme Court of Florida.

May 10, 1990.

Robert A. Butterworth, Atty. Gen., Ellen D. Phillips and Walter M. Meginniss, Asst. Attys. Gen., Tallahassee, for petitioner.

Carl H. Lida of the Law Offices of Carl H. Lida, P.A., Miami, for respondent.

Enoch J. Whitney, General Counsel, and R.W. Evans, Asst. General Counsel, Tallahassee, amicus curiae for Dept. of Highway Safety and Motor Vehicles.

Richard Lubin, West Palm Beach, and Nancy Hollander of Freedman, Boyd & Daniels, P.A., Albuquerque, N.M., amicus curiae for Nat. Ass'n of Criminal Defense Lawyers.

Arthur Joel Berger, Miami, amicus curiae for Florida Ass'n of Criminal Defense Lawyers, Miami Chapter.

BARKETT, Justice.

We have for review State v. Johnson, 516 So.2d 1015 (Fla. 5th DCA 1987), which certified the following question of great public importance:

May a profile of similarities of drug couriers, which is developed by a law enforcement officer and which, in light of his experience, suggests the likelihood of drug trafficking, be relied upon by him to form an articulable or founded suspicion which will justify a brief investigatory traffic stop on highways known to the officer to be frequently used for the transport of drugs?

Id. at 1021. ¹ As it relates to the facts here, we answer the question in the negative.

On June 4, 1985, Florida Highway Patrol Trooper Robert Vogel was assigned to a special drug detail working on Interstate 95 in Volusia County. At about 4:15 a.m., he spotted a large luxury car driving north, bearing Maryland license plates and traveling at exactly 55 m.p.h., the legal speed limit.

Vogel decided to make an "investigatory" stop because the following facts fit a personal drug courier profile Vogel had developed: (1) the car was driving at 4:15 a.m.; (2) the driver was alone; (3) the driver was about thirty years of age; (4) the car had out-of-state tags; (5) the car was of a large model type; (6) the driver was male; (7) the driver was wearing casual clothes; (8) the driver was being "overly cautious" by driving at precisely the speed limit; (9) the car was driving on a known drug corridor, Interstate 95. Based solely on these factors, Vogel stopped and detained Johnson. After making the stop, Vogel discovered marijuana in the trunk of the vehicle, seized it, and arrested Johnson.

At trial, Vogel testified that he had thirteen and one-half years' experience in identifying and arresting persons transporting illegal drugs. Between March 5, 1984, and April 18, 1985, Vogel compiled his own drug courier profile based on elements common to each of thirty arrests made during this period. ² However, he testified that he does not keep records of all the vehicles that fit the "profile" which he stops and does not search, or stops and searches but finds no contraband. Testimony at trial indicated that the Florida Highway Patrol had its own drug courier profile, which included the presence of air shocks on a car, blacked-out glass and evidence the vehicle was heavily loaded. However, Vogel testified he did not rely on the Patrol's profile.

Based on these facts, the trial court suppressed the evidence seized from the vehicle. The trial judge concluded that the factors given by Vogel did not constitute founded suspicion that Johnson had engaged in criminal conduct.

On appeal, the Fifth District agreed based partly on its prior rejection of Vogel's profile in In re Forfeiture of $6,003.00, 505 So.2d 668 (Fla. 5th DCA), review denied, 511 So.2d 998 (Fla.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). It found that the factors given by Vogel in their totality did not create founded suspicion of criminal activity.

The state's sole basis for supporting the validity of the stop is Vogel's personal profile. Thus, the question presented is whether a late model out-of-state car driven by a thirty-year-old male at 4:15 in the morning, in accordance with all traffic laws and regulations, gives rise to founded suspicion of criminal conduct. We find that it does not.

Indeed, this conclusion is supported by at least three other cases that have considered similar "profiles" used by this same officer, Trooper Vogel, in other similar automobile stops. In the case of In re Forfeiture of $6,003.00, 505 So.2d at 669, the Fifth District concluded that Trooper Vogel's profile was "too general and unparticularized." It reached this conclusion based on a profile consisting of factors similar to those at bar, which differed only in that the stopped automobile bore Florida rental tags and had two occupants.

Previously, the Eleventh Circuit Court of Appeals had occasion to review Trooper Vogel's profile. In United States v. Smith, 799 F.2d 704, 707 (11th Cir.1986), the court condemned Vogel's profile as "a classic example of those 'inarticulate hunches' that are insufficient to justify a seizure under the fourth amendment." Indeed, the Eleventh Circuit termed Trooper Vogel's list of factors as nothing but "nondistinguishing characteristics." Id. In the context of Smith, these characteristics consisted of out-of-state car tags on a car traveling fifty miles per hour, containing two occupants, with a driver about thirty years of age who appeared to be overly cautious.

Trooper Vogel's profile again came before the federal bench in United States v. Miller, 821 F.2d 546 (11th Cir.1987), and again was rejected. In Miller, the Eleventh Circuit made a telling comment:

In this case, Trooper Vogel pulled over at 9:40 at night a car that was obeying the speed limit, that was being driven cautiously, and that was from out-of-state. During the Florida tourist season, that description likely describes a high percentage of cars on Interstate 95.... The record does not reveal how many unsuccessful searches Trooper Vogel has conducted or how many innocent travelers the officer has detained. Common sense suggests that those numbers may be significant.

Id. at 550.

We agree with these observations, and find that they apply equally to the instant case. Accordingly, we conclude that article I, section 12 of the Florida Constitution, ³ prohibits the police conduct that occurred in this instance.

We have little doubt that individual police officers may exercise a degree of discretion in choosing to make a stop after observing a situation indicating a likelihood of criminal wrongdoing. A "profile" thus is permissible precisely to the degree that it reasonably describes behavior likely to indicate crime. That is, the officer, prior to the stop, must observe some activity that links a particular person to some specific, articulable evidence of criminal wrongdoing. See Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 342-43, 62 L.Ed.2d 238 (1979). However, Florida law does not permit a profile based on factors that are little more than mundane or unremarkable descriptions of everyday law-abiding activities.

We are mindful of the concerns raised in Chief Justice Ehrlich's dissent. However, we find that the authority on which he relies, even if applied to this case, would fully support our views. For instance, in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that founded suspicion of an immigration law violation cannot be based solely on the fact that the occupants of a car appear to be Mexican. Id. at 876, 95 S.Ct. at 2577. In that context, the Court went on to say that it was unwilling to "dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops" even in the context of a search for illegal aliens. Id. at 882, 95 S.Ct. at 2580. The Court stated:

Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

Id. at 884, 95 S.Ct. at 2581 (emphasis added). The fact that a person appears to be Mexican does not support a rational inference that the person is an illegal alien. Id. at 876, 95 S.Ct. at 2577.

If this standard applies to federal efforts to detect illegal aliens, then the same standard at the very least applies to roving stops of state citizens by state police, such as occurred in the present case. And in that regard, we cannot agree that the characteristics constituting Trooper Vogel's profile support a "rational inference" of criminal wrongdoing. Indeed, we find that the United States Supreme Court's recent decision in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), upon which the dissent relies, would support the same conclusion even if the instant case did not implicate state constitutional concerns. Unlike the inadequate "profile" in Brignoni-Ponce and the present case, the facts in Sokolow unmistakably support a rational inference of wrongdoing.

In Sokolow, the United States Supreme Court upheld an airport search based on a profile when the defendant (1) had bought two airline tickets totalling $2,100 using twenty-dollar bills that he peeled from a much larger roll of cash; (2) had traveled under an assumed name; (3) had traveled to Miami, a city that is a common source of illicit drugs; (4) had planned to stay in Miami only about twenty-eight hours; (5) had appeared nervous throughout his trip; and (6) had checked no luggage. Id. 109 S.Ct. at 1583. Thus, the profile in Sokolow justified a stop precisely because it described unusual conduct that set the defendant apart from other travelers and that strongly suggested concealed criminal conduct. See id. at 1586 (defendant's behavior was "out of the ordinary").

In the present case, there was nothing at all unusual or out of the ordinary about the ...