State v. Kehoe

• Citation: 498 So.2d 560,11 Fla. L. Weekly 2488
• Decision Date: 26 November 1986
• Docket Number: No. 4-86-0279,4-86-0279
• Parties: 11 Fla. L. Weekly 2488 STATE of Florida, Appellant, v. James KEHOE and Mickey De Vivo, Appellees.
• Court: Florida District Court of Appeals

Page 560

498 So.2d 560

11 Fla. L. Weekly 2488

STATE of Florida, Appellant, v. James KEHOE and Mickey De Vivo, Appellees.

No. 4-86-0279.

District Court of Appeal of Florida,

Fourth District.

Nov. 26, 1986.

Jim Smith, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellant.

Harry Gulkin of Harry Gulkin, P.A., Fort Lauderdale, for appellees.

HERSEY, Chief Judge.

The state appeals the suppression of physical evidence. We reverse on findings that the stop which resulted in discovery of the cannabis at issue here was justified by a founded suspicion of criminal activity, and in any event was a valid traffic stop.

At 3:00 o'clock in the morning of the day in question, Lamar Williams, a Deerfield Beach police officer, observed a pickup truck, with a large boat trailer attached, parked at an intersection near a motel. He thought the presence of a truck and empty trailer at that location and hour unusual. He also observed that the license tag on the trailer was bent, making the number difficult to read.

At 5:45 a.m. Williams saw the same truck and trailer at the boat ramp in Pioneer Park, a Deerfield Beach city park which is open 24 hours a day. The truck was parked in a "no parking" zone as though ready to load an incoming boat. Williams saw a white male (later identified as De Vivo) standing next to the truck. Williams was suspicious because boats seldom pull into the park so early in the morning. He observed no further activity during the next hour.

At 6:45 a.m. Williams asked police dispatch to contact the department's vice officers to find out whether they wished to continue the surveillance. Vice officers Gary Null and Jeff Hurt arrived at about 7:00 a.m., and Williams reported his observations.

At 7:55 Null saw a boat approaching. De Vivo backed the trailer into the water. The boat was a 30-foot Scarab driven by Kehoe. As it entered the park it was creating a wake in a nowake zone. Also, Null noticed that Kehoe was looking all around as he approached the loading area and that the boat did not have any registration numbers on its side. Null was aware that on other occasions illegal drugs had been brought into Pioneer Park by boat.

Kehoe drove the boat directly onto the trailer and remained on board while De Vivo pulled it about 75 to 100 yards from the dock. Kehoe then climbed into the driver's seat of the truck and proceeded out of the park. Null thought it was unusual that Kehoe did not get out of the boat on the ramp and pull the plug to allow water to drain and that he failed to secure the boat before driving away. From his observations Null concluded that the boat was being used for drug trafficking. Also, he observed that the tag on the trailer was bent so that the last digit could not be read, which is a traffic violation.

Hurt's observations were consistent with Null's. In addition, Hurt stated that he observed three large containers of water, some large rocks, and several large bags of fertilizer in the back of the truck, which, in his opinion, were used to provide additional weight in the back to assist the truck in pulling a heavy load up the ramp.

As the truck and boat left the park, Null contacted Officer James Dusenbery, who was standing by, and asked him to stop the truck. As Dusenbery came up behind the trailer he could not read all of the numbers on the bent license tag. Dusenbery later testified that, although he stopped the vehicle primarily because of Null's instruction, he would have stopped it for the tag violation alone.

Kehoe gave Dusenbery a false name and was unable to produce a driver's license or registration. Null and Hurt arrived on the scene a short time later and discovered over 1,000 pounds of cannabis in the boat.

The Florida Stop and Frisk law, section 901.151, Florida Statutes (1985), provides in relevant part:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

As this court explained in State v. Stevens, 354 So.2d 1244, 1247 (Fla.4th DCA 1978):

Circumstances can "reasonably indicate" that a person "has committed, is committing, or is about to commit" a violation of criminal laws or ordinances without necessarily indicating that high probability of guilt which is implied by the term "probable cause." State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). To justify temporary detention, only "founded suspicion" in the mind of the detaining officer is required. Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974); State v. Ebert, 251 So.2d 38 (Fla.2d DCA 1971). A "founded suspicion" is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. "Mere" or "bare" suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla.4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.

A stop by a police officer (Dusenbery) who is acting at the direction of another officer (Null) is valid so long as the officer giving the direction has observed sufficient activity to form the basis for a founded suspicion. See McClendon v. State, 440 So.2d 52 (Fla.1st DCA 1983); Crawford v. State, 334 So.2d 141 (Fla.3d DCA 1976). The relevant "founded suspicion" here is that of the officers who actually observed the activities of Kehoe and De Vivo--Null, Hurt, and Williams.

It is clear from applicable case law that mere presence of an individual at an unusual hour in an area where previous crimes had been committed is not enough to support a founded suspicion of criminal activity. See Mullins v. State, 366 So.2d 1162 (Fla.1978) (officer saw defendant riding bicycle in early morning hours in residential area), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979); State v. Beja, 451 So.2d 882 (Fla.4th DCA 1984) (vehicle parked near restaurant after 11:00 p.m. where there had been previous problems, and vehicle moved when officers approached), appeal dismissed, 469 So.2d 750 (Fla.1985); Levin v. State, 449 So.2d 288 (Fla.3d DCA 1983) (defendant was observed walking along street at 3:00 a.m. in "high class" residential area that had experienced prior burglaries), aff'd, 452 So.2d 562 (Fla.1984); Freeman v. State, 433 So.2d 9 (Fla.2d DCA 1983) (police saw defendant walk through parking lot where there had been recent auto break-ins carrying flashlight at 2:20 a.m.). The present case involves much more than the mere presence of Kehoe and De Vivo at an unusual, early morning hour in a location where illegal drug trafficking had previously occurred. It is therefore necessary to determine the extent to which these additional observations constitute "founded suspicion."

In Carter v. State, 454 So.2d 739 (Fla.2d DCA 1984), two police officers observed the defendant and others sitting in a parked vehicle outside a lounge at 9:00 p.m., during the lounge's regular business hours. The occupants of the car were looking all around, and the officers saw the defendant bend down towards the seat. The officers believed defendant's movements to be consistent with ingesting cocaine. The appellate court reversed the trial court's denial of the defendant's motion to suppress, concluding that the stop was based on nothing more than a "hunch", which constitutes only "mere" or "bare" suspicion.

Denial of a defendant's motion to suppress was also reversed in Kayes v. State, 409 So.2d 1075 (Fla.2d DCA 1981), rev. denied, 424 So.2d 762 (Fla.1982), a case cited in the order under review here. In Kayes the police observed boats and vehicles similar to the type used in drug smuggling operations at a dock, and similar vehicles were observed at a stained glass company's warehouse nine miles away. The warehouse was placed under surveillance. A car driven by appellant entered the warehouse at 4:00 p.m. and later exited, appearing to be weighted down. The officers followed and later stopped the car, discovering marijuana in the trunk. The appellate court concluded that the officers lacked a founded suspicion to make the stop because no actual connection had been made between the suspicious activity on the dock and the warehouse, and "from all appearances, the warehouse was part of a legitimate business operation." 409 So.2d at 1078. The mere similarity between the boats and vehicles at the warehouse to those typically used by drug smugglers was not sufficient to create a founded suspicion.

On the other hand, trial court orders granting motions to suppress were reversed in State v. Gray, 366 So.2d 137 (Fla.2d DCA 1979), and State v. Stevens, 354 So.2d 1244 (...