State v. T.S.

• Decision Date: 15 May 2013
• Docket Number: No. 3D12–2373.,3D12–2373.
• Citation: 114 So.3d 343
• Parties: The STATE of Florida, Appellant, v. T.S., a juvenile, Appellee.
• Court: Florida District Court of Appeals

114 So.3d 343

The STATE of Florida, Appellant,

v.T.S., a juvenile, Appellee.

No. 3D12–2373.

District Court of Appeal of Florida,

Third District.

May 15, 2013.

Pamela Jo Bondi, Attorney General, Tallahassee, and Brent J. Kelleher, Assistant Attorney General, Miami, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Stephanie Michel and Daniella Piñeros, Certified Legal Interns, Miami, for appellee.

Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.

WELLS, Chief Judge.

The State of Florida appeals from an order suppressing physical evidence obtained during an investigatory stop. Because we find reasonable suspicion existed to support the stop, we reverse.

Officer Timothy Jackson, the arresting officer, was the sole witness to testify at the suppression hearing below. According to Officer Jackson, he was off duty and out of uniform when, on February 12, 2012, he pulled his marked police car into a McDonald's parking lot. As he neared the restaurant, he was approached by an individual, described as a Latin male, who stepped in front of Officer Jackson's moving car forcing Officer Jackson to stop. This individual, who was talking on a cell phone when he stepped before Officer Jackson's police car, appeared to Officer Jackson to be “agitated and excited.” As soon as Jackson stopped his car, the man told Jackson that “somebody [had] pulled a gun on [him] in the bathroom at McDonald's.”

Fearing a hoax, Officer Jackson demanded to know to whom this individual was speaking and upon being told that it was “the [911] dispatcher,” Officer Jackson took possession of the phone and confirmed that dispatch was on the line taking a robbery report. At this juncture, Officer Jackson took over the investigation and was told by the individual who flagged him down, that a black man wearing a black hoodie and red shorts, accompanied by another black man wearing a white t-shirt and blue jeans, had pulled a gun on him in the McDonald's restaurant. The entire conversation between the officer and the individual lasted “at least two minutes.”

Upon learning that these events had occurred only a few minutes before, and finding the individual to be credible, Officer Jackson decided to leave at once in an attempt to locate the assailants. Officer Jackson made no attempt to obtain the name and address of the man making the report, asking only that he remain at the McDonald's while Officer Jackson went in pursuit.

After searching for only a few minutes, Officer Jackson spotted two individuals just a few hundred yards from the McDonald's who matched the descriptions given to him. Jackson parked and got out of his vehicle, and based on the report that at least one of the assailants was armed, approached with his gun drawn. On reaching the two, Officer Jackson told one of them (T.S.), that he did not “know whether or not you're the actual person or not, but someone just claimed that somebody pulled a gun and you meet the description. For your safety and for my safety let me see your hands.” T.S. did not respond. Officer Jackson then asked T.S. at least three more times to show his hands and received no response. Officer Jackson finally asked, “Do you speak English, do you speak Spanish, do you speak Creole, are you deaf, are you dumb[?]” Other than “swaying his body and walk[ing] back and forth,” T.S. made no response to any of these demands. Finally, Officer Jackson told T.S., “I'm going to tell you one more time if you do not comply I'm going to blow your head off.” This time T.S. took his hands out of his pockets and put them in the air. T.S. then acknowledged that he spoke English and stated that he had a handgun in his pocket. At this point, Officer Jackson retrieved a .38 snub nose pistol with the hammer cocked from T.S.'s pocket and called for backup.

Officer Jackson estimated that approximately thirty to thirty-five minutes had elapsed from the time he first interacted with the informant and when he returned to the McDonald's restaurant. But, by the time he returned, the individual who had reported the attempted robbery had left.

The State charged T.S. with carrying a concealed firearm and with possession of a firearm by a minor. Relying primarily on Baptiste v. State, 995 So.2d 285 (Fla.2008), T.S. moved to suppress the firearm claiming that the stop during which the gun was seized was illegal because it was based solely on an unreliable anonymous tip. The trial court agreed and ordered the evidence suppressed. Because the individual who flagged Officer Jackson down at the McDonald's restaurant was a citizen informant whose information was sufficiently reliable to support the investigatory stop conducted by Officer Jackson, we reverse. See Williams v. State, 721 So.2d 1192, 1193 (Fla. 1st DCA 1998) (confirming that review of a trial court's application of the law to the facts is de novo).

“Generally, ‘the Fourth Amendment to the United States Constitution prohibits state actors from making searches or seizures of the person in the absence of probable cause.’ ” United States v. Heard, 367 F.3d 1275, 1278 (11th Cir.2004) (quoting United States v. Dunn, 345 F.3d 1285, 1288 (11th Cir.2003), cert. denied,542 U.S. 906, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004)). However, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized an exception to the probable cause requirement where a minimally intrusive search and seizure—an investigatory stop—is involved. These minimally intrusive searches and seizures need not be based on probable cause, but may be based instead only on an officer's reasonable, articulable suspicion that criminal activityis afoot. Id. at 30, 88 S.Ct. 1868;United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (stating that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause”); see also Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (confirming that under Terry, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot”).

Reasonable suspicion, a less demanding standard than probable cause, may “be established with information that is different in quantity or content than that required to establish probable cause, [and] ... can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In Baptiste, the Florida Supreme Court addressed whether an anonymous report, a tip, of criminal activity, uncorroborated by any evidence of illegal activity, was legally sufficient (that is reliable enough to give rise to the reasonable suspicion necessary) to support an investigatory stop. In determining that it was not, the court acknowledged that while information provided to law enforcement from some sources about criminal activity may be sufficiently reliable to establish the quantum of suspicion necessary to support an...