              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT


MELISSA PETERSON,                          )
                                           )
             Appellant,                    )
                                           )
v.                                         )         Case No. 2D17-1324
                                           )
STATE OF FLORIDA,                          )
                                           )
             Appellee.                     )
                                           )

Opinion filed March 6, 2019.

Appeal from the Circuit Court for DeSoto
County; Kimberly Bonner, Judge.

Howard L. Dimmig, II, Public Defender,
and Tosha Cohen, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Elba Caridad Martin,
Assistant Attorney General, Tampa, for
Appellee.


MORRIS, Judge.

             Melissa Peterson appeals her judgment and sentences for possession of

a controlled substance, possession of marijuana (not more than twenty grams), two

counts of possession of paraphernalia, and one count of conspiracy to introduce
contraband into a detention facility. Because we conclude that there was no valid basis

for law enforcement to conduct a traffic stop and that law enforcement did not have a

reasonable suspicion that she had committed or was about to commit a crime, we

reverse the judgment and sentences.

                                      BACKGROUND

              The charges in this case were based on events that occurred on February

27, 2016. Peterson filed motions to suppress arguing that Desoto County Sheriff's

Deputy Matthew Proudfit lacked probable cause to conduct a traffic stop based solely

on her failure to maintain a single lane of traffic where her conduct did not create a

reasonable safety concern. She also argued that information that a jail visitation clerk

had relayed to Deputy Proudfit about a conversation between Peterson and a jail inmate

did not provide Deputy Proudfit with a reasonable suspicion that Peterson had

committed or was about to commit a crime. Thus Peterson argued that an investigatory

stop was not warranted.1

              At the suppression hearing, the jail visitation clerk testified that as part of

her duties, she listens to phone calls between inmates and their visitors "if it [is]

warrant[ed]" and she "know[s] that something[] . . . needs to be listened to." The clerk

also testified that she handles all money that is deposited into inmate accounts. The

clerk acknowledged that she was not a law enforcement officer and had not had any

type of law enforcement training or certification. Because the clerk had noticed that


              1Peterson also raised the issues of the failure of Deputy Proudfit to
provide a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and the lack of
probable cause to search her or arrest her based on her admission that she had a
weapon because section 790.25(5), Florida Statutes (2015), was applicable and
provided an exception to the prohibition against possession of a concealed firearm
without a permit. However, she does not raise these issues on appeal.

                                             -2-
Peterson was depositing money into several different inmate accounts, she decided she

needed to listen to a phone call between Peterson and her boyfriend, who was an

inmate. During the phone call, the clerk overheard Peterson's boyfriend ask Peterson

whether another woman, nicknamed "Buck Wild," did what the boyfriend had asked her

to do. After further discussion about whether the unnamed act had occurred, the

boyfriend told Peterson, "[Y]ou cannot do it, you know, during the week and in the

daytime. [I]t has to be done at night." When asked whether the boyfriend ever actually

described what "it" was, the clerk responded: "They were going to try to bring in some

contraband . . . . And he said, I want her to bring it and put it at the spot where I told

you."

              The clerk also testified about a visitation call between Peterson and the

boyfriend. During that call, the boyfriend reportedly asked Peterson, "[D]id you bring

something with you?" Peterson responded, "Yeah, me." The boyfriend then asked,

"[D]id you bring your gold?" Peterson responded affirmatively. The clerk testified that

the boyfriend asked Peterson whether she knew how to smoke, while making a gesture

as if he was smoking a cigarette, and he then asked Peterson, "[D]o you know where

the spot is that I told you?" Peterson responded affirmatively. The boyfriend then told

her: "[N]ot in the daytime. Has to be done at night, and not on the weekends."

Peterson responded, "[O]kay, well, I'll have to drop back over here."

              The clerk was able to visually observe Peterson on a video monitor during

the visitation call. The clerk testified that Peterson appeared to be under the influence

of something because Peterson "was laying her head down, and her eyes were going

closed and she would just stop talking." The clerk also testified that she noticed that




                                             -3-
Peterson's eyes were rolling in the back of her head. Based on Peterson's conduct, the

clerk felt that she needed to report her observations to someone because she was

concerned that if Peterson drove away from the jail, she could hurt or kill herself or

someone else. The clerk watched Peterson leave the jail and get back into her vehicle.

As Peterson walked past the clerk, the clerk observed that Peterson's eyes were dilated

and that "she was visibly high." The clerk subsequently observed Peterson slumped

over the steering wheel of the vehicle, and the clerk explained that Peterson sat out in

her car for approximately thirty to thirty-five minutes before driving away. The clerk

testified that she relayed all of the information that she testified to at trial to the narcotics

unit of the Desoto County Sheriff's Office.

               A Desoto County Sheriff's Deputy testified that he was initially alerted to

watch for Peterson's vehicle by his supervisor, a Desoto County Sheriff's Sergeant. The

deputy explained that he and fellow deputies were setting up surveillance of Peterson

because the visitation clerk "overheard some recordings that there was possibly going

to be a drug drop at the jail." The deputy testified that he and the other deputies were

watching to see if Peterson "was going to . . . throw something over the gate." The

deputy further testified that after Peterson failed to do so and began to drive away, the

deputies decided to follow her and "wait for probable cause to stop [her]." The deputy

admitted that he was not aware of the specific details (i.e., "that no drop would occur

that day" and that Peterson "was not going to do anything in the daytime") overheard by

the visitation clerk.

               The deputy came into contact with Peterson after stopping her vehicle

because she failed to maintain a single lane of traffic on two occasions. The deputy




                                              -4-
was asked whether the traffic stop was for "a potential DUI driver," and he responded, "I

did not assume she was under any impairment at that time, no." The deputy admitted

that there was no oncoming traffic, that the stop occurred during the daytime, that

Peterson was traveling on a one-way street, and that there were no bikes in the bike

lanes next to Peterson's lane of travel. The deputy also admitted that he did not

observe Peterson impact traffic in any way when her vehicle crossed over the line and

that he did not see any pedestrians in the area. The deputy was asked whether the

traffic stop was initiated as "a proxy to make contact . . . and conduct a search if

possible." The deputy candidly responded: "We're always looking to get into vehicles,

as I work in narcotics and drug and addiction. My main goal is to enter every vehicle I

pull over to see what's inside that vehicle. So I was not singling her out by any means."

              The sergeant testified that he received the phone call from the visitation

clerk relaying the information about what she had overheard. The sergeant testified that

the clerk believed "there was going to be some contraband dropped off or delivered to

an inmate through Ms. Peterson." More specifically, the clerk relayed that she believed

Peterson was "going to drop off an unknown item, possibly drug related, to a trustee."

Based on that information, the sergeant instructed other deputies to begin surveillance

on Peterson's vehicle. The sergeant acknowledged that neither he nor the other

deputies ever observed Peterson participate in a drug drop or drug activity at the jail.

              The sergeant came into contact with Peterson after she was stopped for

the traffic violation. During the traffic stop, Peterson made a statement indicating that

she had weapons in the vehicle. As a result, Peterson's purse was searched and drugs

were found. At that point, Peterson was arrested.




                                            -5-
              The prosecutor argued to the trial court, in relevant part, that the stop of

Peterson's vehicle was justified because the deputies had received a tip from a citizen

informant and that, therefore, the tip should be considered at the high end of the

reliability scale. While acknowledging that under Florida case law, it was "questionable"

whether or not the traffic stop was valid because Peterson had not interfered with traffic,

the prosecutor argued that the information that had been relayed by the visitation clerk

was sufficient to justify an investigatory stop because "law enforcement had information

that drugs were in the vehicle" and that "there was an intent to actually get them into the

jail."

              In response, the defense argued that based on Crooks v. State, 710 So.

2d 1041 (Fla. 2d DCA 1998), the deputies lacked an objective basis to conduct a traffic

stop because Peterson's failure to maintain a single lane of traffic did not create a

reasonable safety concern. Addressing the investigatory stop, defense counsel argued

that there was no evidence that a crime had occurred because the deputies failed to

observe a drug drop at the jail as they had anticipated.

              The trial court denied Peterson's suppression motions, concluding that the

stop was justified because "the information provided as far as what happened at the jail

visitation was sufficient to justify an investigatory detention." The trial court also

apparently concluded that Peterson committed a traffic violation, finding that "the civil

infractions . . . did occur." But the trial court acknowledged that "Crooks has been

whittled away . . . so many times" and that "it gives you very little teeth to go on in those

kinds of stops."




                                             -6-
              After the suppression motions were denied, Peterson entered into a plea

agreement whereby she agreed to plead no contest to the charges.2 Adjudication was

withheld on the counts for possession of a controlled substance (count I) and

possession of marijuana (not more than twenty grams) (count II), and she was

sentenced to twenty-four months of drug offender probation for count I and to time

served on count II. As to the counts for possession of paraphernalia (counts III and IV),

Peterson was adjudicated guilty and sentenced to time served. And for the count for

conspiracy to introduce contraband into a detention facility (count V), she was

adjudicated guilty and sentenced to twenty-four months' drug offender probation

concurrent with the sentence for count I. The defense reserved its right to appeal the

dispositive motions to suppress.

                                        ANALYSIS

              In reviewing an order denying a motion to suppress, we afford "a

presumption of correctness" to the circuit court's findings of fact, but we review mixed

questions of law and fact de novo. Pasha v. State, 225 So. 3d 688, 703 (Fla. 2017)

(quoting Wyche v. State, 987 So. 2d 23, 25 (Fla. 2008)).

              Generally, traffic stops are deemed reasonable "where the police have

probable cause to believe that a traffic violation has occurred." Langello v. State, 970

So. 2d 491, 492 (Fla. 2d DCA 2007) (quoting Whren v. United States, 517 U.S. 806,

810 (1996)). The validity of a traffic stop is judged on an objective basis, and therefore,

"the subjective knowledge, motivation, or intention of the individual officer involved [is]



              2Peterson  had initially been charged with possession of a controlled
substance with intent to sell or deliver, but the State amended the information to reduce
the charge to possession of a controlled substance.

                                            -7-
wholly irrelevant." Hurd v. State, 958 So. 2d 600, 602 (Fla. 4th DCA 2007) (citing

Holland v. State, 696 So. 2d 757, 759 (Fla. 1997)). Here, the transcript reflects that no

traffic violation occurred.

              Section 316.089(1), Florida Statutes (2015), provides in relevant part that

              [w]henever any roadway has been divided into two or more
              clearly marked lanes for traffic . . . [a] vehicle shall be driven
              as nearly as practicable entirely within a single lane and
              shall not be moved from such lane until the driver has first
              ascertained that such movement can be made with safety.

This court, along with other Florida appellate courts, has refused to find a violation of

this statute where a driver's failure to maintain a single lane did not endanger himself or

herself or anyone else. See, e.g., Crooks, 710 So. 2d at 1043 (explaining that a

violation of section 316.089 "does not occur in isolation, but requires evidence that the

driver's conduct created a reasonable safety concern" and thus reversing appellant's

conviction where there was no evidence how far into the right-hand emergency lane

appellant drove on three occasions and where there was no objective evidence that

appellant failed to ascertain that his movements could be made with safety)3; Hurd, 958

So. 2d at 603 ("[T]he failure to maintain a single lane alone cannot establish probable

cause when the action is done safely."). And while a driver's failure to maintain a single

lane, coupled with a suspicion of impairment, unfitness, or vehicle defects, can give rise




              3We   acknowledge that, in application, Crooks presents challenges to law
enforcement officers who are asked to make split-second decisions as to whether a
driver's conduct creates a reasonable safety concern. What may be a reasonable
safety concern under one set of facts may not rise to that level under a slightly different
set of facts. For that reason, the legislature may want to consider whether section
316.089(1) should be clarified to provide law enforcement with better guidance as to the
scope of what constitutes a reasonable safety concern.

                                             -8-
to probable cause for purposes of a traffic stop,4 there was no testimony that such

circumstances existed in this case. Compare Jordan v. State, 831 So. 2d 1241, 1243

(Fla. 5th DCA 2002) (holding that traffic stop was unlawful where officer's testimony

established that no other vehicles were in danger due to appellant's failure to maintain

single lane and where there was no testimony that appellant was intoxicated or

otherwise impaired or that he had been driving erratically); with State v. Davidson, 744

So. 2d 1180, 1181 (Fla. 2d DCA 1999) (concluding that deputy's observations of

appellant maintaining low speeds and continually drifting across the line and jerking

vehicle in opposite direction provided deputy with founded suspicion to conduct traffic

stop where actions were consistent with those of an impaired driver), and Dep't of

Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA

1992) (recognizing that "a legitimate concern for the safety of the motoring public can

warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving

under the influence in situations less suspicious than that required for other types of

criminal behavior").

              Here, the deputy testified that he observed Peterson's vehicle cross the

solid white line twice within a mile-and-a-half distance. However, the deputy

acknowledged: (1) this occurred on a one-way street with a bike lane on each side, (2)

there was no oncoming traffic, (3) he did not see any bicycles on the street at the time,

(4) he did not see any pedestrians affected, (5) Peterson's conduct did not impact traffic

in any way, and (6) he did not assume that Peterson was under any impairment at that

time. We hold that because there was no evidence that Peterson's crossing the white



               4See    Hurd, 958 So. 2d at 603.

                                             -9-
line on two occasions created a reasonable safety concern, the deputy did not have

probable cause to believe that Peterson violated section 316.089(1). Consequently, the

traffic stop could not be justified on that basis, and we must next determine whether an

investigatory stop was warranted based on the other information relayed from the jail

visitation clerk to the sergeant.

              "[P]olice 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." State v. Teamer, 151

So. 3d 421, 425 (Fla. 2014) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989));

see also Davis v. State, 695 So. 2d 836, 837 (Fla. 2d DCA 1997). A mere suspicion of

a crime is not enough. Teamer, 151 So. 3d at 426. Thus, where a person's conduct is

consistent with both criminal and noncriminal activity, such facts do not give rise to a

reasonable suspicion of a crime. See Carter v. State, 454 So. 2d 739, 742 (Fla. 2d

DCA 1984) (concluding that where appellant's conduct "was at least equally consistent

with noncriminal activity" and where officers admitted they had a bare suspicion that

appellant was engaging in unlawful activity, there was no founded suspicion to justify an

investigatory stop).

              In determining whether an officer had reasonable suspicion of a crime, we

must consider the facts available to the officer and the totality of the circumstances.

See Teamer, 151 So. 3d at 426. This determination must be viewed "from the

standpoint of an objectively reasonable police officer," and "the officer's subjective

intentions are not involved in the determination of reasonableness." Id. (first quoting

Ornelas v. United States, 517 U.S. 690, 696 (1996); and then quoting Hilton v. State,




                                           - 10 -
961 So. 2d 284, 294 (Fla. 2007)). "Reasonable suspicion, like probable cause, is

dependent upon both the content of information possessed by police and its degree of

reliability." Alabama v. White, 496 U.S. 325, 330 (1990). "Both factors—quantity and

quality—are considered in the 'totality of the circumstances—the whole picture.' " Id.

(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).

              Here, there is no dispute that the tip concerning Peterson's possible

involvement in a drug drop at the jail came from a known citizen informant. Such a tip

ordinarily "falls at a higher end of the reliability scale." Baptiste v. State, 995 So. 2d

285, 291 (Fla. 2008). The problem in this case is not the reliability of the visitation clerk.

Rather, the problem is that the information relayed by the clerk consisted of nothing

more than vague portions of a conversation that the clerk construed as suspicious

coupled with the clerk's assumption that Peterson was under the influence of drugs

based on her physical demeanor. The information did not create or support a

reasonable suspicion that Peterson had committed, was committing, or was about to

commit a crime. Cf. Cooks v. State, 28 So. 3d 147, 149-150 (Fla. 1st DCA 2010)

(explaining that tip from citizen informant, a hotel clerk, was not reliable "in its assertion

of illegality" where tip consisted of the informant's hunch that appellant might have been

planning to rob her based on his suspicious activity but where the information relayed

did not create a reasonable suspicion that appellant had committed, was committing, or

was about to commit a crime (quoting Florida v. J.L., 529 U.S. 266, 272 (2000))); R.E. v.

State, 536 So. 2d 1125, 1128 (Fla. 1st DCA 1988) (holding that where citizen

informant's claim of suspicious activity had a "minimal objective basis and, except for

innocent details of identification, is uncorroborated by law enforcement's subsequent




                                            - 11 -
observations," there was no reasonable suspicion that "crime [wa]s afoot, which is

essential if a report of generalized, allegedly suspicious activity is to justify a stop"); Hall

v. State, 366 So. 2d 865, 865-866 (Fla. 4th DCA 1979) (holding that where citizen

informant, a retail store manager, alerted police that appellant and another man were

acting suspiciously but where officer did not observe appellant do anything suspicious,

there was no basis for an investigatory stop).

              The visitation clerk reportedly heard Peterson and her boyfriend

discussing Peterson bringing "gold" with her and about something needing to be done

by either a third party or Peterson "at night" and "during the week" and the boyfriend

asking Peterson if she knew "where the spot is that I told you." Based on these

statements, the clerk assumed that Peterson and her boyfriend were arranging a drug

drop at the jail. But such generalized statements did not evince that a crime had been

committed, was being committed, or was about to occur. Further, the clerk

acknowledged that she was not a law enforcement officer and had no law enforcement

certification or training, and there was no other evidence that the clerk had any

expertise in identifying possible drug transactions based on the language used. Also

notable is the fact that the deputies did not observe Peterson engage in a drug drop at

the jail or any other suspicious conduct prior to conducting the traffic stop.

              Moreover, even if Peterson was under the influence of drugs at the jail, the

State has not established that her being in that condition—without more—constitutes a

crime under any Florida law. At most, the visitation clerk's relaying of Peterson's

physical condition to the officers might have provided reasonable suspicion to conduct a

traffic stop for driving under the influence of drugs. See § 316.193(1)(a), Fla. Stat.




                                             - 12 -
(2015) (describing offense of driving under the influence of a controlled substance).

However, here, the deputy rejected the notion that he was attempting to conduct a

"potential DUI stop," explaining that he did not assume that Peterson was impaired at

the time he performed the traffic stop. Thus the only information which could have

formed the basis for an investigatory stop was the content of Peterson's conversation

with her boyfriend that was overheard and relayed by the visitation clerk. But as already

explained herein, that conversation consisted of nothing more than generalized,

allegedly suspicious statements which did not result in any observed criminal conduct.

Accordingly, that information could not have provided a reasonable suspicion that

Peterson had committed, was committing, or was about to commit a crime. And,

therefore, the traffic stop could not be justified on that basis.

              Because the traffic stop was not supported by probable cause that

Peterson had committed a violation of section 316.089(1) or by a reasonable suspicion

that Peterson had committed, was committing, or was about to commit a crime, the trial

court should have granted Peterson's dispositive motions to suppress. Accordingly, we

reverse and remand with instructions to grant the dispositive motions to suppress and to

vacate the convictions and sentences in this case.

              Reversed and remanded with instructions.



KELLY and SLEET, JJ., Concur.




                                             - 13 -
