County Case No.: MM98-02580A-LD

Appeal No.: BB-57
August 14, 2000

DANNY DAVIS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

__________________________

This is an appeal from the county court of Polk County, Judge Mary C. Green presiding. Appellant Danny Davis argues that the trial court erred by failing to grant his motion to suppress. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is reversed.

I.

A citizen informant contacted the Lakeland Police Department with information regarding a Black male, about 6'3" wearing a green hat, brown shorts and a light colored shirt standing at Second and Roselle. The informant stated that the man had marijuana. The officers had received information from the informant some thirty times in the past and had reason to believe the information was reliable.

An officer was dispatched to the location. He observed an individual matching the description standing at Second and Jewel. The officer observed a bulge in Appellant’s front pants pocket. The officer approached Appellant and placed him in an "arm bar," a maneuver described by the officer as putting a suspect’s arm behind his back to subdue him. (R. 35) The substance retrieved from Appellant’s pocket tested positive for marijuana and Appellant was arrested.

The trial court denied Appellant’s motion to suppress. Appellant plead no contest and reserved his right to appeal.

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.

Under Terry v. Ohio, an officer ‘seizes’ a person when he accosts or restrains his freedom to walk away. 392 U.S. 1, 16 (1968). To justify an intrusion upon the interests of a private citizen, the officer must point to specific, and articulable facts which, when taken together, reasonably warrant the intrusion. See id. at 21. See also Popple v. State, 626 So. 2d 185 (Fla. 1993).

Founded suspicion

A police officer can stop and detain a person for investigation if the officer has a founded suspicion of the existence of criminal activity. See Grant v. State,718 So. 2d 238, 239 (Fla. 2d DCA 1998). The officer must consider, given the totality of the circumstances, whether objective, reliable facts justify the stop. See id. 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 Grant, a resident telephoned the police at 4 a.m. and described a car driving down her street with its lights off. Within minutes, an officer responded. The officer was aware that there had been several burglaries reported on that street within the preceding ten hours. He spotted a car matching the description with it lights on. When he stopped the car, he observed a television, a VCR and a large stuffed animal in the car. The district court concluded that the motion to suppress was properly denied.

Innocent details

Police informants can provide information which is the basis for a reasonable suspicion when the information concerns presently occurring criminal conduct or predicts future conduct. See J.L. v. State, 727 So. 2d 204, 206 (Fla. 1999), aff’d, 120 S. Ct. 1375 (2000). The reliability of a tip is measured by its specificity, and the existence of other objective facts which provide independent corroboration of the informant’s predictions. See id. Once verified, these tips can be the basis of an investigatory stop. Id. Such information is to be distinguished from innocuous information. Id. Certain kinds of tips provide "innocent details" which do not predict future criminal behavior. Id. Although verified, "innocent details" cannot of themselves provide reasonable suspicion. Id.

In J.L, an anonymous caller told police that a man in a plaid shirt standing at a certain bus stop had a gun. Id. at 208. Officers responded to the call and observed three males at the bus stop including one wearing a plaid shirt. The officers detained and frisked all three males. The trial court granted a motion to suppress and the district court held that the tip did not give the officers a reasonable suspicion sufficient to justify temporary detention. J.L. v. State, 694 So. 2d 118, 120 (Fla. 3d DCA 1997). The Supreme Court of Florida held that the officers did not have reasonable suspicion to stop, detain, and frisk the three people at the bus stop because the officers did not observe any objective facts corroborating the caller’s tip. J.L., 727 So. 2d at 208. Further, all the information provided by the informant was "innocent" in nature. Id. While the officers could have engaged the three in a consensual encounter, the circumstances did not warrant active intervention into an otherwise peaceful situation. Id.

Consensual encounters and Investigative stops

An officer does not need a founded suspicion to conduct a citizen or consensual encounter. Horton v. State, 660 So. 2d 755 (Fla. 2d DCA 1995). The individual may comply, or ignore the officer’s request and walk away. See id. If an officer has a founded suspicion based on articulable facts that the individual may be involved in criminal activity, he may conduct a brief investigatory stop. See Grant v. State, 718 So. 2d 238, 239 (Fla. 2d DCA 1998). The circumstances purporting to support an investigatory stop are to be interpreted in light of the officer’s knowledge. See Peabody v. State, 556 So. 2d 826, 827 (Fla. 2d DCA 1990).

If, during a consensual encounter, an officer makes a show of official authority from which a reasonable person would conclude that he is not free to leave, Constitutional protections are implicated. See Popple, 626 So. 2d at 188. The show of official authority initiates detention. See Horton, 660 So. 2d at 756. If the officer asserts his or her authority based upon articulable facts that suspect may be involved in criminal activity, the consensual encounter becomes investigatory and a brief detention is lawful. See id. Conversely, if the assertion is not based upon a founded suspicion, any detention, however brief, is unlawful and a subsequent search is tainted. See id.

In Horton v. State, officers approached three men sitting in a car which was legally parked in front of a burned-out house in the middle of the day. 660 So. 2d at 756. One officer observed Horton, who was sitting in the back seat, drop several objects onto the floorboard. The officer attempted to open the door then ordered the driver to unlock the doors. He pulled Horton from the car and placed him in the patrol car. The officer searched the area where Horton had been sitting and found a pipe. On appeal, the district court held that Horton’s motion to suppress should have been granted because the officers had no founded suspicion to detain him. The court reasoned that the officer’s attempt to open the door was a show of authority which signaled the beginning of Horton’s detention. It was reasonable for Horton to conclude that he was not free to leave at that point. The contraband seized was the fruit of an illegal search.

IV.

In the matter on appeal, the officer testified that he approached a man matching the description at Second and Jewel, a location different than the location given by the informant. The officer observed a bulge in the front pants pocket. The officer testified that he observed no criminal activity before initiating the encounter with Appellant. As in J.L., the informant provided, and the officer verified innocent details of identification. 727 So.2d at 206_727. The physical description of Appellant did not suggest any presently occurring or future criminal behavior. See id. The officer’s show of official force, placing Appellant in an "arm bar" initiated an unlawful detention. The subsequent search was illegal and the contraband seized must be suppressed.

Accordingly, it is ORDERED that the ruling of the county court is REVERSED and this cause is REMANDED.

Charles B. Curry
Chief Judge