State v. Taylor, 3D01-398.

• Decision Date: 24 July 2002
• Docket Number: No. 3D01-398.,3D01-398.
• Citation: 826 So.2d 399
• Parties: The STATE of Florida, Appellant, v. Leonard TAYLOR, Appellee.
• Court: Florida District Court of Appeals

826 So.2d 399

The STATE of Florida, Appellant, v. Leonard TAYLOR, Appellee.

No. 3D01-398.

District Court of Appeal of Florida, Third District.

July 24, 2002.

Robert A. Butterworth, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellant.

James Newton (Georgia), Special Assistant Public Defender, for appellee.

Before GODERICH and SHEVIN, JJ., and NESBITT, Senior Judge.

SHEVIN, Judge.

The State of Florida appeals an order granting defendant Leonard Taylor's motion to suppress statements and evidence. We affirm.

Taylor was charged with burglary of an occupied dwelling and grand theft. Defense counsel filed a motion to suppress evidence seized and statements made following Taylor's arrest. The motion asserted that the arrest was illegal as the officer lacked reasonable suspicion for the initial stop of defendant. After a hearing, the court granted the motion.

The following facts were developed at the suppression hearing.

Officer Patricia Malone was on routine patrol at 4:30 a.m. in Miami Lakes, an affluent, predominately white area, of northern Miami-Dade County. Officer Malone drove by a car that was legally parked on the swale. Officer Malone turned around to check out the vehicle. Upon passing the vehicle a second time, Officer Malone noticed a gentleman in the vehicle.

Officer Malone parked her patrol car and approached the gentleman. Officer Malone asked him to get out of the vehicle and step away from the car. She asked the gentleman what he was doing there. He responded that he used to live in the area. Officer Malone inquired nothing further. She asked him for identification; he produced a valid Florida driver's license.¹ The officer took the license back to the patrol car to run a check on the gentleman.²

Officer Malone testified that the check returned a possible want and that the dispatcher was going to conduct additional investigation. At that point, the officer handcuffed the defendant and placed him in the back of the patrol car. Thereafter, Officer Malone testified that she was told there were no wants on the defendant. The defendant was not released, however. When the backup officers arrived on the scene, Officer Malone told them that she had stopped the defendant because it was unusual for him to be in the area at that hour of the morning.³

In direct contradiction to Officer Malone's testimony, the defense introduced the testimony of Miami-Dade Police Dispatcher Janet Bacon. Bacon has been a dispatcher for twenty years. The dispatcher testified that when an officer asks that a check be run on an individual, the dispatcher runs the check, and reports any information to the officer. If there are any possible wants, the officer is responsible for calling wants or records to verify the information.⁴

Miami-Dade Police Department Communications Bureau Records Custodian Richard Walsh testified regarding the signals Officer Malone used to call in her activities. When Officer Malone stopped to question the defendant, she called in a "signal 13" at 4:30 a.m. Walsh testified this means the officer is checking something out. Officer Rodriguez's arrival time on the scene was also 4:30 a.m., moments after Officer Malone called in the signal 13. The defendant was already handcuffed in the back of the police car. It wasn't until some time later, during the two and a half hours the call lasted, that Officer Malone called in a "signal 26," which meant that a burglary had occurred.

At the conclusion of the suppression hearing, the trial court announced:

She had one of the worst memories as a police officer. The court finds that her memory was not very good in this case, and the State has the burden of proving what happened, and she guessed, because she was contradicted by some of the other officers.

Her initial testimony to the Court is she was waiting for dispatch to get back to her for ten, fifteen minutes on a possible want, and it later came out that Officer Bacon said there was a "possible want," and it would be up to the officer, and when she was called back in and I asked her, after she came back on rebuttal, whether or not she had called the dispatcher she said, "Well, maybe I did. I just don't remember."

And now she has got the information that, within the next ten, fifteen minutes, she also was very unclear as to—at what point did she even suspect there was anything with the garage door?

Quite honestly, the other officers made the scene, that she didn't notice the garage door was open or anything unusual until a later time, and that they came on their own, when the officers came on their own, wanted to know whether the garage door was open.

. . .

I think it is clear that her recollection of events were such that the Court was not confident of any testimony that she gave ....

The trial court granted the suppression motion.

In reviewing an order granting a suppression motion, the trial court's factual findings will be upheld if they are supported by competent substantial evidence. Connor v. State, 803 So.2d 598, 608 (Fla. 2001), certiorari denied, ___ U.S. ___, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002). As the foregoing recitation of facts demonstrates, the court's findings, including the finding that the arresting officer was not credible, are supported by competent substantial evidence. The evidence, and all reasonable inferences therefrom, must be construed in the light most favorable to upholding the trial court's decision. Young. In determining whether the seizure was illegal, this court must make a de novo determination. Connor; Young.

There are three levels of police encounters with citizens. Each level is scrutinized under a different standard. This case presents a second-level encounter.

The second level of police-citizen encounter involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

Popple v. State, 626 So.2d 185, 186 (Fla. 1993) (citations omitted). We look at the totality of the circumstances to determine whether a reasonable well-founded suspicion exists to justify the investigatory stop. Saturnino-Boudet v. State, 682 So.2d 188, 191 (Fla. 3d DCA 1996).

In this case, Taylor was detained, and the consensual encounter between Malone and Taylor became a Terry stop, when the officer asked Taylor to get out of and step away from the car.⁵Popple; Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA 2001); Alvarez v. State, 695 So.2d 1263 (Fla. 2d DCA 1997); Bowen v. State, 685 So.2d 942 (Fla. 5th DCA 1996). However, that seizure was not supported by the requisite "well-founded, articulable suspicion of criminal activity." Popple, at 186.

This case is controlled by the holding in Popple. It is well-settled that merely observing an individual in a legally parked car is insufficient to raise a well-founded suspicion of criminal activity sufficient to support a stop.⁶Popple held that a legally parked car, even one in a desolate area, does not create reasonable suspicion to justify a detention. In Popple, the police only observed the defendant sitting in a legally parked car making furtive movements at 12:55 p.m. prior to the detention. The supreme court found that Popple's suppression motion should have been granted. Under that holding, Taylor's suppression motion was properly granted.

This case is virtually indistinguishable from Miranda v. State, 816 So.2d 132 (Fla. 4th DCA 2002), Alvarez v. State, 695 So.2d 1263 (Fla. 2d DCA 1997), and the cases cited therein. In Miranda, the arresting officer observed a legally parked car in the back of an apartment complex parking lot at 5:00 a.m. in an area of prior criminal activity. The court held that this observation was insufficient to create reasonable suspicion that a crime had, or was about, to occur, and reversed the denial of a suppression motion. Here, Malone observed nothing more than the officer in Miranda.

In Alvarez, police observed the defendant seated in a legally parked car adjacent to an apartment complex at 4:00 a.m. The officers asked the defendant to exit his car based on their general suspicion that he might be committing a crime. There had been no reports of burglaries, thefts, or other criminal activity in the area that evening. In reversing the denial of Alvarez's suppression motion, the court concluded that the officers did not have reasonable suspicion to believe the defendant was committing a crime. The Alvarez scenario mirrors the events leading to Taylor's detention.

The state urges that the stop here was not infirm because Officer Malone had reasonable articulable suspicion that Taylor was involved in a robbery. However, this theory is not borne out by the record. The record unequivocally demonstrates that when Officer Malone asked the defendant to step out of his car she had only observed a legally parked car. Nothing more. This observation does not rise to the level of well-founded suspicion of criminal activity necessary to justify the stop.

The state's argument that Malone was aware of the open garage door, and that she stopped Taylor in connection with that discovery, is belied by the evidence. As a threshold matter, as we noted earlier, supra note 2, at her deposition, Malone did not testify to noticing the open garage door before stopping to investigate Taylor. This testimony was used to impeach Malone's contrary testimony at the hearing; Malone was not rehabilitated on this point. Moreover, the trial court, in its discretion, made a credibility determination and found that Malone was...