State v. Outler, 3D07-1490.

• Decision Date: 14 October 2009
• Docket Number: No. 3D07-1490.,3D07-1490.
• Citation: 20 So.3d 421
• Parties: The STATE of Florida, Appellant, v. Kenneth James OUTLER, Appellee.
• Court: Florida District Court of Appeals

20 So.3d 421

The STATE of Florida, Appellant, v. Kenneth James OUTLER, Appellee.

No. 3D07-1490.

District Court of Appeal of Florida, Third District.

October 14, 2009.

Bill McCollum, Attorney General, and Jerome Smiley, Jr. and Maria T. Armas, Assistant Attorneys General, for appellant.

Carlos J. Martinez, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellee.

Before RAMIREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.

SHEPHERD, J.

This is an appeal from an order suppressing marijuana found in the defendant's, Kenneth James Outler, automobile after a stop, on the ground law enforcement lacked reasonable articulable suspicion to make the stop under the Fourth Amendment to the United States Constitution and its Florida counterpart, Article I, section 12 of the Florida Constitution.¹ Upon de novo review, we conclude the trial court erred in reaching its judgment and, therefore, reverse the order on appeal.

This case arises out of an investigatory stop. In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. State v. Taylor, 826 So.2d 399, 402 (Fla. 3d DCA 2002). Neither speculation nor a mere "hunch" is acceptable. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the quantum of suspicion required is less than that for probable cause and "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); State v. Lennon, 963 So.2d 765, 768 (Fla. 3d DCA 2007); State v. Gonzalez, 682 So.2d 1168, 1170 (Fla. 3d DCA 1996). The trial court determination is made upon a consideration of the totality of the circumstances. Taylor, 826 So.2d at 402. On review of a trial court ruling, the appellate court is required to accord a presumption of correctness to the trial court's determination of the historical facts, but independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment. State v. Bagley, 844 So.2d 688, 690 (Fla. 3d DCA 2003). Thus, the trial court's ultimate determination is reviewed de novo on appeal. Id.

This case originated out of a telephone call made on April 11, 2006, by Michael Martinez, a detective with the Los Angeles Impact Task Force, to United States Drug Enforcement Administration (DEA) Special Agent Matthew Roberts.² Martinez told Roberts the Los Angeles police had seized several crates of marijuana from a Los Angeles trucking company, and the trucking company was carrying a similar crate to Tiffany Transport in Miami-Dade County. He described the crate to Roberts and advised him the shipping name and address were fictitious.

That afternoon, Roberts, accompanied by five other federal agents and two local law enforcement officers — Miami-Dade Detective Guillermo Cuba and Coral Gables K-9 Officer Bill Swikehardt — visited Tiffany Transport and inspected the crate. One agent diverted to check the delivery information on the accompanying crate and found that, like the shipping information, the delivery name and address also were fictitious. Officer Swikehardt exposed his drug-trained canine to the crate, but the dog did not alert. Special Agent Scott Rosenfeld, one of the six agents on the site, was not surprised. He told the assembled officers the crate was similar in size, weight, and packaging to crates being used in another marijuana trafficking scheme he was investigating. His investigation in that case had revealed the drug smugglers there had a practice of pre-packing the contraband in cardboard boxes before laying them into the crate, then baffling the interior of the crate with oily paper towels and dryer sheets to mask the telltale marijuana odor, and finally securing the crate "excessively," using a combination of nails, screws, glue, and metal banding.

Because the canine failed to alert, the assembled officers were unable to obtain a search warrant. On the other hand, a Tiffany Transport representative told the group that Kenneth Outler, an individual who recently had picked up two other similar crates, was on his way to Tiffany Transport to pick up this one. The officers and agents took positions to observe.

Outler arrived at Tiffany Transport as expected, at approximately four o'clock in the afternoon. A Tiffany forklift operator transported the crate to Outler's car, where it was opened, and the boxes removed and placed in the trunk and on the back seat of Outler's car. Outler then departed to the Palmetto Expressway and traveled north, then east. The DEA agents and local law enforcement officers sought to trail him surreptitiously in six or seven separate vehicles, in what one pursuing officer described as a "rolling tail." After getting beyond rush-hour traffic on the expressway, Outler increased his speed to between sixty and eighty-five miles per hour, as conditions would permit, in what was a fifty-five-mile-per-hour zone. He also weaved back and forth between lanes frequently and, according to Special Agent Roberts, checked his rearview mirrors "excessively." Roberts testified he was left with the impression Outler suspected he was being tailed. Although one of the local law enforcement officers testified he could have pulled Outler over for excessive speed — apparently, federal agents do not have the authority to make traffic stops — he elected not to do so because he was traveling in an unmarked car. Instead, the agents and officers called for another Miami-Dade officer in a marked car to join them to make the stop.

Before that officer could arrive, Outler left the expressway at Northwest 27th Avenue and proceeded south into a residential area. Both the federal and local law enforcement officers followed. Outler drove hastily through the neighborhood, utilizing the middle of the two-lane residential streets on which he traveled, made frequent right and left turns from block to block, and did not honor stop signs. For community safety reasons, local law enforcement officers elected to stop him, even though the marked car had not arrived. The two local law enforcement officers, together with one other local law enforcement officer in an unmarked car who had joined the chase, blocked Outler's vehicle in the front. Federal officers came up behind. Federal officers then approached Outler's vehicle, guns drawn. As Outler rolled down his car window, the agents detected the unmistakable odor of marijuana wafting from the vehicle's backseat and ordered Outler out of the car. A canine that accompanied the joining law enforcement officer quickly and unambiguously alerted to the marijuana in the vehicle. Outler was Mirandized,³ consented to...