County Case No. MM98-04990A-XX
Appeal No. BB-52
May 16, 2000

RODNEY ELINOR,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

______________________

This is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant, Rodney Elinor, argues that the trial court erred by failing to grant his motion to suppress certain evidence. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is affirmed.

Officer Wilson, of the Florida Game and Fresh Water Fish Commission, responded to an anonymous complaint of reckless operation of an airboat on Lake Lowery on the evening of June 7, 1998. The caller gave directions, but no address, to a residence. Officer Wilson drove onto the property. From his truck, Officer Wilson observed a truck with an airboat trailer positioned in a manner which suggested that an airboat had been launched onto the canal behind the residence. Officer Wilson also heard an airboat operating on the lake, but neither the lake nor the airboat were visible from the backyard of the residence. Officer Wilson parked his truck, walked to the canal and waited 45 minutes to an hour for the boater to return.

Officer Wilson hid behind a shed in the yard as the boat approached. He could see that the boat was being operated without the required navigational lights. When the boat landed, he walked down to talk to the two men onboard. Officer Wilson determined that Appellant had been operating the boat. He conducted a safety inspection and discovered a second safety equipment violation. He asked Appellant, to accompany him to his truck so he could issue a written warning for the navigational light violation.

From the initial encounter, Officer Wilson noticed signs of alcohol intoxication. He noticed the odor of alcoholic beverage as Appellant spoke. Appellant also had watery, bloodshot eyes, slurred speech, and he "fumbled" things during the safety inspection. Also, while signing the citation, Appellant wrinkled the page. After Appellant signed the warning, Officer Wilson asked Appellant how much he had had to drink to which Appellant replied "five beers." Officer Wilson then asked Appellant to perform field sobriety tests. Appellant failed to successfully perform most of the tests, and Officer Wilson advised Appellant of his rights, and placed him under arrest for operating a vessel while intoxicated. Appellant made no other statements.

A trial judge’s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. 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. Id. at 21. The Court stated the standard as follows: "would the facts available to a reasonable 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?" Id.

A. Fourth Amendment protections under Terry v. Ohio.

Since Terry, Florida courts have articulated three levels of police/citizen contact: voluntary compliance during which the citizen is free to leave; an investigative stop based upon reasonable suspicion; and, arrest. State v. Roux, 702 So. 2d 240, 241 (Fla. 4^th DCA 1997), reh. den., and (citing Popple v. State, 626 So. 2d 185 (Fla. 1993)). To effectuate an investigative stop, an officer must have "a founded suspicion of criminal activity" as established by the "cumulative impact of the circumstances." Kehoe v. State, 521 So. 2d 1094, 1096 (Fla. 1988). "The existence of a fourth amendment violation ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time’." 521 So. 2d 1096 (approving test in Scott v. U.S., 436 U.S. 128, 136 (1978)).

Information in an anonymous tip is insufficient on its own to establish reasonable suspicion for purposes of an investigative stop. J.L. v. State, 727 So. 2d 204, 206 (Fla. 1999), aff’d, 120 S. Ct. 1375 (2000). Reasonable suspicion can be established by verification of information from the informant coupled with independent police investigation. Id. Information from a tip is measured by its specificity, and the existence of other objective facts which provide independent corroboration of the informant’s predictions. Id. The officer must consider, given the totality of the circumstances, whether objective, reliable facts justify the stop. Id. (citing Alabama v. White, 496 U.S. 325 (1990)).

In J.L, an anonymous caller told police that a man in a plaid shirt standing at a certain bus stop had a gun. 727 So. 2d 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 Florida Supreme Court 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. v. State, 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.

In Roux v. State, agents of a drug and vice task force observed Roux parked in the lot of a closed fast food restaurant. 702 So. 2d 240 (Fla. 5^th DCA 1997). Another man approached the car and the two appeared to be passing something between themselves. An agent walked toward the car and Roux pushed the other man into the agent and tried to run. The agent arrested Roux. A pat-down search revealed cannabis and cocain. The state charged Roux with resisting without violence and possession of cannabis and cocain. The trial court granted Roux’s suppression motion reasoning that the agent lacked probable cause to arrest Roux when he approached the car. In a decision reversing the trial court, the district court ruled that the agent could not establish probable cause to arrest based on a suspicion of a drug deal. Id. (citing Burnette v. State, 658 So. 2d 1170 (Fla. 2d DCA 1995). However, the agent could have engaged Roux in conversation and could have asked him, without any threat of force, to consent to a search. Id. Probable cause was established when Roux battered the agent. Id. (citing Whren for proposition that officer’s subjective intent is immaterial when objective facts justify officer’s action).

In Kehoe v. State, officers observed a pickup loaded with rocks and bags of fertilizer with an empty boat trailer attached for several hours from 3:00 a.m. until 7:55 a.m.. 521 So. 2d 1094, 1095 (Fla. 1988). The trailer had a bent but readable license tag. At 7:55 a.m., a boat with no registration number drove onto the trailer. Kehoe, who was operating the boat, neither drained nor secured the boat to the trailer before driving off. Officers stopped Kehoe and discovered cannabis in the boat. The district court reversed the ruling of the trial court and denied the motion to suppress. The district court held that the circumstances created a founded suspicion of criminal activity, and that stop would still have been justified as a valid traffic stop. Id. at 1096. The Supreme Court disapproved of the district court’s finding as to the stop. It noted that an officer’s actions must be considered in light of the objective facts of the circumstances, and held that the state must show that an officer would have stopped the vehicle absent an additional valid purpose. Id. at 1097.

Appellant argued that the officer lacked reasonable articulable suspicion to be in Appellant’s yard, and all evidence and statements must be suppressed as the fruit of a poisonous tree. However, the facts do not support this position. Officer Wilson arrived at Appellant’s residence based upon information in an anonymous tip that someone was engaged in reckless airboating. The caller provided directions to Appellant’s residence. The officer observed the airboat trailer, and heard an airboat operating on the lake. He could not see the boat, and had no verification that the operator was in fact reckless. However, he waited near the water for the boar to return. The officer did not attempt to search the shed, the residence, or the yard as he waited. At this point, the officer had merely corroborated "innocent" facts; he had not observed enough to amount to an articulable suspicion of any unlawful act. J.L., 727 So. 2d at 206; Roux, 702 So. 2d at 240; Burnette, 658 So. 2d 1170. However, when he caught sight of the airboat on the canal, the officer noticed that the airboat had no navigational lights in violation of section 327.05(2). Operating a vessel without navigational lights, a violation of state law, provided a lawful basis for an investigative stop. Whren v. United States, 116 U.S. 1769 (1996)(stopping vehicle for traffic infraction does not violate fourth amendment); Kehoe, 521 So. 2d at 1095; Roux, 702 So. 2d at 240.

Miranda v. Arizona established procedural safeguards to ensure that statements given during custodial interrogation are voluntary. 384 U.S. 436 (1966). Police may make an investigative stop to assess the validity of a founded suspicion which has arisen about a specific suspect. Further, the use of restraint is permissible in a Terry stop if such restraint is justifiable under the circumstances. Reynolds v. State, 592 So.2d 1082, 1085 (Fla. 1992). Officer safety is one factor which may justify the use of restraint, and such does not automatically trigger Miranda rights. 526 So. 2d at 173; United States v. Kapperman, 764 F. 2d 786, 790 (11^th Cir. 1985)(holding that neither handcuffs nor other restraints automatically convert Terry stop into arrest requiring probable cause). The totality of the circumstances determine whether there is custody and whether the use of restraint is justified. Reynolds, 592 So.2d at 1084.

In Ruiz v. State, Ruiz drove to a house just as police had begun a drug sting. State v. Ruiz, 526 So. 2d 170, (Fla. 1988), rev. den., 534 So. 2d 401 (Fla. 1988); and 488 U.S. 1044(1989). An officer approached Ruiz’s car, gun drawn, ordered him to lie face down on the ground, and asked whether Ruiz had any weapons. Ruiz answered yes, and the officer charged him with possession of a concealed firearm. The court held that questioning about the gun without prior Miranda warning was constitutional. Id.

Federal agents had observed Kapperman for several days before stopping him in a car on a public street. United States v. Kapperman, 764 F. 2d 786, 790 (1985). The agents had evidence that Kapperman had used the name and credit card of another man, that he fit the physical description of a fugitive wanted for marijuana smuggling and that he had acquired a small plain equipped to drop small bundles and short-wave radio. The federal appeals court rejected Kapperman’s motion to suppress statements made in response to pre-Miranda questions, and unlawful detention. Id. The court found that the information the officers had pertaining to Kapperman was sufficient to establish probable cause for arrest. Id. at 791. The court held that all detentions by law enforcement do not rise to the level of arrest, and they may be based on less than probable cause. Id. It reasoned that an investigative stop must be justified from its inception, and the scope of inquiry must be related to the circumstances that permitted the intrusion. Id. at 172.

While Appellant argues that he was entitled to Miranda warnings prior to questioning because he was not free to leave, the facts do not support his position. During the safety inspection, the officer discovered a second safety violation. The officer also observed signs of alcohol intoxication in Appellant including glassy, bloodshot eyes, the odor of alcoholic beverage, and clumsiness. After completing the written warning, the officer asked Appellant how much he had had to drink as a means of initiating an inquiry into Appellant’s sobriety. The officer’s observations were based on facts related to Appellant’s sobriety as was the question. At some point during this encounter, Appellant asked to go inside his house. The officer denied the request citing officer safety as the reason. The officer was alone in Appellant’s backyard with Appellant and his passenger. Further, testimony established that the officer used no force to coerce a response from Appellant, or restrict his movement. Under the circumstances, denying Appellant’s request to leave the area was the lease restrictive means of preserving the status quo. The facts and circumstances do not establish custodial interrogation; therefore, Miranda warnings were not required.

Appellant makes a constitutional challenge to section 372.07 arguing that the scope of delegated police power is overbroad, in that it allowed the officer to trespass onto Appellant’s land with impunity. This court finds no merit in Appellant’s argument because section 372.07 contains an express condition precedent to any wildlife officer proceeding onto private lands, namely that the officer’s activity must be "in connection with" the laws, rules, and regulations of the state and of the Commission for the "enforcement thereof and in the performance of their duties." Testimony established that Officer Wilson came onto Appellant’s land to investigate an anonymous call that someone was recklessly operating an airboat. The officer did not just happen upon Appellant’s residence. The caller gave directions to the location. This court finds that the officer was present at Appellant’s residence to investigate the circumstances of a complaint of reckless boating.

Appellant next argues that the trial court incorrectly ruled because the constitution cannot delegate authority which is reserved to the people of the state. This argument is also without merit. The courts of this state have held constitutional the scope of police power delegated in section 372.07. State v. Howard, 411 So. 2d 372 (Fla. 2d DCA 1982)(reversing order granting motion to suppress); Bronson v. State, 83 So. 2d 849, 850 (Fla. 1956)(holding that repeated re-enactment of section 372.07 demonstrates its constitutional validity). The district court expressly held that the delegation of expanded powers is consistent with, and not in derogation of the Commission’s purpose. Howard, 411 So. 2d at 375.

On facts similar to the matter before the court, an wildlife officer observed suspicious activity and hid nearby to observe developments. The officer could hear, but not see the landing and unloading of a plane. Suspecting a drug transaction, the officer called for backup. A short time later, officers stopped, searched, and arrested the occupants of the two trucks involved. While a former version of the statute limited the authority of the wildlife officers to enforcement of wildlife laws, the Legislature expanded the scope of authority to include violations of all laws committed in their presence, or on lands under their supervision. Id.

During the safety inspection, the officer observed signs of alcohol intoxication and asked Appellant whether he had been drinking. Appellant was not under arrest, and the officer had not established probable cause to effect lawful arrest for operating a vessel while intoxicated. However, once field sobriety tests confirmed the validity of his suspicions, the officer then had probable cause to lawfully arrest Appellant.

Appellant suffered no violation of his 4^th amendment rights under the federal constitution. The federal constitution requires a founded suspicion for an investigative stop. An observed violation of a state law establishes probable cause for an investigative stop. The officer observed Appellant operate a vessel without navigational lights in a violation of state law. Therefore, the officer had a lawful basis for an investigative stop. The facts and circumstances show that Appellant was not in custody. The law permits restraint which is reasonable under the circumstances to preserve the status quo. When the circumstances require, officer safety justifies the use of reasonable restraint. Use of such restraint does not in itself establish a custodial circumstance. Thus, Appellant was not entitled to protection against self-incrimination. Finally, the officer is authorized to, and did in this instance did, use police power sufficient to carry out the directive of the Commission, and consistently with the state and federal constitutions

Accordingly, it is ORDERED that the ruling of the county court is AFFIRMED.

ORDERED 16 May 2000.

Charles B. Curry

Chief Judge