State v. Russell

• Decision Date: 23 August 1995
• Docket Number: No. 94-2446,94-2446
• Citation: 659 So.2d 465
• Parties: 20 Fla. L. Weekly D1887 The STATE of Florida, Appellant, v. Shawn RUSSELL, Appellee.
• Court: Florida District Court of Appeals

Page 465

659 So.2d 465

20 Fla. L. Weekly D1887

The STATE of Florida, Appellant, v. Shawn RUSSELL, Appellee.

No. 94-2446.

District Court of Appeal of Florida,

Third District.

Aug. 23, 1995.

Robert A. Butterworth, Atty. Gen., and Paulette R. Taylor, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Melodee Smith, Sp. Asst. Public Defender, for appellee.

Before SCHWARTZ, C.J., and BASKIN and COPE, JJ.

COPE, Judge.

The State appeals an order granting suppression of evidence. We reverse.

The defendant was charged with burglary of an unoccupied structure and grand theft. He filed a motion to suppress evidence, arguing that the officer lacked reasonable suspicion to make an investigatory stop or probable cause to make an arrest.

At the hearing on the motion to suppress, an officer of the Miami Beach Police Department testified that he was on burglary surveillance in a "very sensitive high burglary area" ¹ of Miami Beach. At approximately 6:00 a.m., while it was still dark, the officer observed defendant riding a bicycle in an alleyway behind some stores. This was in an exclusively commercial area, at a time when no stores were open. The officer observed that the defendant had over his shoulder what appeared to be a sack containing some squared-off items. The squared-off objects looked like appliances of some sort. The defendant was having problems steering the bicycle, apparently because of the weight of the sack. The officer drove alongside the bicycle and asked the defendant if he lived in the area and the defendant responded with a head motion. When the officer asked him to be more specific, the defendant then gave an address which was outside of Dade County. When the officer asked him where he was going, he gave an address in the city. The officer then asked the defendant to stop the bicycle and talk to him.

The defendant stopped, dismounted from the bicycle and placed the sack with the squared off objects on the trunk of the officer's vehicle. The officer then noticed that the sack was in fact a shirt and that a small compact disc player was sticking out of the sleeve of the shirt. The officer twice asked the defendant what was in the shirt and the defendant twice responded that it was a VCR. The officer picked up the compact disc player and pulled it out of the sleeve of the shirt. As soon as he did so, the defendant immediately said, "Oh, and the compact disc player." The officer asked the defendant to identify the name brand of the compact disc player and the defendant was unable to do so.

At this point, the officer asked the defendant to place his hands on the vehicle and called for assistance. While he was waiting for the units to assist, he searched the shirt and found two VCR's. He asked the defendant to name the brands of the VCR's and the defendant was able to name one brand, but not the other. The officer then found a repair bill for one of the VCR's. The repair shop was close by. The officer asked a police unit to go check the address. The officer was advised by radio that there had been a break-in at that address. After transporting the defendant to the burglarized store and receiving verification from the owner that the defendant had not been given permission to enter the premises, the officer formally arrested the defendant.

The defendant moved to suppress the stolen property contained in the bag. ² After an evidentiary hearing in which only the officer testified, the trial court granted the motion. The trial court's written order stated that the officer did not have a founded suspicion to make an investigatory stop. ³ The State has appealed.

We respectfully disagree with the trial court that the officer lacked a founded suspicion to detain the defendant for an investigatory stop. An investigatory stop is authorized when a law enforcement officer "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[.]" Sec. 901.151(2), Fla.Stat. (1993). There must be a reasonable, or founded, suspicion that criminal activity may be afoot. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989); Popple v. State, 626 So.2d 185, 186 (Fla.1993).

To justify a stop, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably justify the stop. The [Supreme] Court announced the following objective standard by which a reviewing court should judge the reasonableness of the intrusion: "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. [1868] at 1880 .

State v. Webb, 398 So.2d 820, 822 (Fla.1981). Among the factors that may be considered are:

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 any operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge.

State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978); see generally 3 Wayne R. LaFave, Search & Seizure Sec. 9.3. However, the Supreme Court has cautioned that "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules,' " United States v. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (citation omitted), and that the totality of the circumstances must be considered. Id.

Here the defendant was in an alleyway behind closed businesses in the dark at 6 a.m., in an exclusively commercial district which had recent burglaries, and was carrying a heavy bag containing squared-off objects which appeared to be appliances. There were more than enough facts to create a reasonable suspicion. See State v. Jenkins, 566 So.2d 926 (Fla. 2d DCA 1990); State v. Jones, 454 So.2d 774 (Fla. 3d DCA 1984); see also 3 Wayne R. LaFave, Search & Seizure Sec. 9.3(c), at 440-41. The investigatory stop was proper.

Defendant argues alternatively that even if the officer had a founded suspicion for an investigatory detention, there was no probable cause to arrest him prior to the officer's search of the "shirt-sack" and that therefore the search was illegal. ⁴ We disagree.

Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. See Shriner v. State, 386 So.2d 525, 528 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); State v. McCormack, 517 So.2d 73, 74 (Fla. 3d DCA 1987); Cross v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983).

"The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based." Shriner v. State, 386 So.2d at 528. " 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 544 (1983) (citation omitted). "The officer need not actually see the law being violated nor must he satisfy himself beyond any question that a felony has been committed." Russell v. State, 266 So.2d 92, 93 (Fla. 3d DCA), cert. denied, 271 So.2d 140 (Fla.1972). An officer is permitted to take a realistic view of the facts in making a probable cause determination, see State v. Maya, 529 So.2d 1282, 1287 n. 7 (Fla. 3d DCA 1988), "for [p]robable cause is a matter of practicalities, not technicalities." McNeil v. State, 512 So.2d 1062, 1064 (Fla. 4th DCA 1987) (citation omitted), review denied, 519 So.2d 987 (Fla.1988).

In the present case the officer stopped the defendant in an alleyway behind closed businesses in the dark at six o'clock in the morning. This was in a deserted commercial area where no businesses were open. Defendant was carrying what appeared to be a sack containing squared-off objects that looked like appliances. When the defendant dismounted from his bicycle, he put the bag on the trunk of...