County Case No.: TT00-001680-XX
Appeal No.: CC-49
HEWITT JACKSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Ellen Masters presiding. Appellant, Hewitt Jackson, argues that the trial court erred by failing to grant his motion to suppress. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is REVERSED.
I.
On March 25, 2000, at approximately midnight, Deputy Martin Friar responded to the vicinity of 2405 East Main Street, Lakeland, in regard to a reported disturbance. Upon arrival, he observed a woman, wearing only a t-shirt, banging on the door of a vacant house and demanding that her children be released. Prior to having contact with the woman, the deputy spoke with Mr. Ralph Spur. Spur lived in the area and allegedly witnessed a man and a woman in a verbal disagreement in a vacant lot near his home. Spur told the deputy that the woman in the t-shirt was the same woman who was having an argument with a gentleman outside. He stated that he had called the police but the gentleman left before the police arrived. During Friar and Spur=s conversation, a man on a Harley Davidson Motorcycle drove past the scene very slowly. Spur identified the motorcyclist as the man who he had seen arguing with the woman. The woman did not show any reaction to the passing motorcyclist. Friar testified that he did not attempt to detain the motorcyclist at that time since he had no reason to stop him. Friar continued to investigate and made contact with the woman, who was identified as Paulette Gerrardo. She told Friar that she had been drinking with friends at the Sterling Lounge and had gone for a ride with one of them on a motorcycle. She did not provide a name nor did she describe the motorcycle or the motorcycle driver. She only stated that she had an argument with the driver of the motorcycle and that he made her get off of the motorcycle at the scene. Friar observed that Gerrardo had the odor of alcoholic beverages on her breath and that she acted in a strange manner. Friar testified that he had a female deputy, Deputy Jennifer Sanderson, called to the scene because of Gerrardo=s state of dress. Sanderson was to return Gerrardo to her home. After Sanderson arrived, Friar returned to patrol because, he testified, Awe had nothing to think otherwise.@ (R12). Shortly thereafter, Friar received a call from Sanderson. Sanderson advised Friar that she was taking Gerrardo to the hospital because of Gerrardo=s statement that the man she was with forced her to have sex. Friar returned to the area in an effort to locate the motorcyclist. As Friar drove northbound towards the scene, he observed the same motorcyclist previously observed at the incident location drive southbound. Friar turned around and conducted a traffic stop of the motorcyclist, who was identified as Appellant, Hewitt Jackson. Jackson was issued a citation for violation of driver=s license restrictions. Nothing else ever became of the alleged sexual assault.
Appellant filed a motion to suppress evidence in which he sought to suppress all evidence attendant to his identity and driver=s license restrictions based on an illegal detention. A hearing was conducted before the Honorable Ellen S. Master on August 31, 2000. The court entered an order denying the appellant=s motion to suppress. On October 24, 2000, the appellant entered a plea of no contest to the offense of violation of driver=s license restrictions and reserved the right to appeal the trial court=s ruling, which was dispositive of the case.
II.
A trial judge=s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. See Escobar v. State, 699 So. 2d 984, 987 (Fla. 1999); c.f., Ramirez v. State, 739 So. 2d 568 (Fla. 1999). To succeed on appeal, Appellant must show that the ruling of the trial court is not supported by competent evidence. Id.
III.
In order for an officer to stop and detain a person for an investigation, the officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So. 2d 185 (Fla. 1993); '901.151(2), Fla. Stat. (2000). Whether an officer=s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop. Travers v. State, 739 So.2d 1262 (Fla. 2d DCA 1999); McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). A mere hunch or bare suspicion is not sufficient for an investigatory stop and detention. McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). The officer must consider, given the totality of the circumstances, whether objective, reliable facts justify the stop. Grant v. State,718 So.2d 238, 239 (Fla. 2d DCA 1998). The officer may consider the time of day, the appearance and behavior of a suspect, the appearance or operation of a vehicle, or anything which is unusual for the circumstances given the officer=s knowledge. See id.
In the present case, Friar was called to a disturbance. Upon arriving, Friar spoke with Spur, who informed him that he had witnessed a verbal disagreement in the vacant lot near his house. During their conversation, a motorcyclist passed by the scene and Spur identified him as one of the participants in the disturbance he had witnessed. The other participant and alleged victim, Gerrardo, did not react at the time the motorcycle passed. During the investigation, Gerrardo told Friar that she had been drinking with friends at a lounge when she went for a ride on a motorcycle. She never described the motorcycle or the motorcycle driver to Friar. She stated that she had an argument with the driver of the motorcycle and that he made her get off the vehicle at the scene. After Friar returned to patrol, he was advised that the woman alleged the man she was with earlier had sexually assaulted her. Based on these facts, Friar conducted a stop of the appellant. This court finds that Friar did not have the requisite reasonable suspicion necessary to authorize an investigatory stop. Popple v. State, 626 So.2d 185 (Fla. 1993); McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). AA [reasonable or] `founded suspicion= is that 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.@ State v. Spurling, 385 So.2d 672, 675 (Fla. 2d DCA 1980). When Deputy Friar stopped the appellant, he had only a bare suspicion that a crime may have been committed and a hunch that the appellant was the perpetrator. A bare suspicion or Ahunch@ that criminal activity has occurred is not sufficient to warrant a stop. LaFontaine v. State, 749 So.2d 558 (Fla. 2d DCA 2000). Here, as correctly noted by the appellant, the facts do not provide a sufficient basis to believe that a crime had occurred let alone that the motorcyclist seen by Friar earlier in the evening had committed the crime.
Accordingly, it is ORDERED that the ruling of the county court is REVERSED.
ORDERED September 2001.
Charles B. Curry, Chief Judge