                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

MATTHEW A. TOBIN,                       NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-2293

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 10, 2014.

An appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.

Bert Moore, Crestview, for Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Bonjour and Trisha Meggs Pate,
Assistant Attorneys General, Tallahassee, for Appellee.




MARSTILLER, J.

      We have for review the trial court’s denial of Appellant’s dispositive motion

to suppress evidence he was driving with a suspended or revoked license, 1 which


1
   Reviewing a motion to suppress presents a mixed question; findings are
reviewed for sufficient evidence, and the application of the law to those findings is
reviewed de novo. See Berry v. State, 86 So. 3d 595, 598 (Fla. 1st DCA 2012).
led the court to find Appellant in violation of community control. Because the

deputy sheriff who stopped Appellant’s vehicle lacked the reasonable, articulable

suspicion of criminal activity necessary to justify what the court determined—and

the State conceded—was an investigatory stop, we conclude the court erred in

denying the motion to suppress.

      Appellant was on two years’ community control, followed by two years’

probation, for committing battery on a law enforcement officer and resisting an

officer with violence. On the night in question, the Okaloosa County Sheriff’s

Office received two anonymous calls complaining of a disturbance at a particular

residence or business located at the end of a privately-maintained road. The

Sheriff’s Office had received complaints in the past about disturbances at the

property; some complaints were founded, some were not. The first anonymous

call that night indicated firearms may be involved. When deputies investigated,

they found no disturbance. Sometime later, a second call came in reporting a

disturbance at the property, this time alleging someone on the property was

overheard shouting “Shoot me now!” Two deputies responded, each in his own

cruiser.   The first deputy to arrive saw a vehicle leaving the property as he

approached, and radioed to the second deputy, who was nearer to the intersection

of the private road and the public street, to stop the vehicle. The second deputy,

seeing the vehicle coming directly toward him, activated the blue lights on his

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cruiser, causing the then-unknown driver to stop his vehicle “beak to beak” with

the cruiser. When Appellant began to get out of the vehicle, the deputy directed

him to stay put. The deputy testified at the suppression hearing he did so because

of concerns, based on the anonymous call, that a firearm may be present. Upon

approaching the vehicle, however, the deputy recognized Appellant, knew he was

on community control, and knew his driver’s license was suspended. At that point,

he arrested Appellant for driving with a suspended license. The deputy also

smelled alcohol on Appellant’s breath and found a cup containing an alcoholic

beverage in the passenger or back seat of Appellant’s vehicle.

      The State later filed an affidavit of violation of community control based on

the new law violation and failure to abstain from using alcohol. Upon denying

Appellant’s motion to suppress, the trial court found only the new law violation

proven, revoked Appellant’s community control on that basis, and entered

judgment sentencing him to 36 months in prison.

      It is well settled that, to effect a constitutionally-permissible investigatory

stop, a law enforcement officer must have a well-founded, articulable suspicion

that the person stopped has committed, is committing, or is about to commit a

crime. § 901.151, Fla. Stat. (2012), Terry v. Ohio, 392 U.S. 1 (1968); Popple v.

State, 626 So. 2d 185, 186 (Fla. 1993); Berry v. State, 86 So. 3d 595, 598 (Fla. 1st




                                         3
DCA 2012). “Mere suspicion is not enough to support a [Terry] stop.” Popple,

626 So. 2d at 186.

      The parties assert that whether the deputy who stopped Appellant’s vehicle

had the requisite well-founded suspicion of criminal activity turns on how the

anonymous calls are characterized. See State v. Maynard, 783 So. 2d 226, 228,

(Fla. 2001). Appellant argues the calls were merely anonymous tips that, absent

additional information obtained by the deputies, were not sufficiently reliable to

justify the detention that occurred here. The State counters that the callers can be

reasonably characterized as citizen informants whose calls are presumed reliable

and generally are sufficient to support an investigatory detention without further

corroboration.

      “Reasonable suspicion . . . is dependent upon both the content of information

possessed by police and its degree of reliability.     Both factors—quantity and

quality—are considered in the ‘totality of circumstances—the whole picture,” that

must be taken into account when evaluating whether there is reasonable

suspicion.” Alabama v. White, 496 U.S. 325, 330 (1990) (quoting United States v.

Cortez, 449 U.S. 411, 417 (1981)). “‘In analyzing whether third-party information

can provide the requisite reasonable suspicion, courts have looked to the reliability

of the informant as well as the reliability of the information provided.’” Berry, 86

So. 3d at 598 (quoting D.P. v. State, 65 So. 3d 123, 127 (Fla. 3d DCA 2011)). The

                                         4
less reliable the tip, the more independent corroboration will be required to

establish reasonable suspicion. White, 496 U.S. at 330. On the “spectrum of

reliability,” an anonymous tip has “relatively low” reliability. Berry at 598; see

also State v. DeLuca, 40 So. 3d 120, 124 (Fla. 1st DCA 2010). This is because “an

anonymous tip alone seldom demonstrates the informant’s basis of knowledge or

veracity as ordinary citizens generally do not provide extensive recitations of the

basis of their everyday observations and given that the veracity of persons

supplying [such] tips” cannot be determined.         White at 329.      Thus, “[a]n

anonymous tip requires that the information be ‘sufficiently corroborated’ by the

officer to constitute reasonable suspicion[.]” Berry at 598 (citing State v. Evans,

692 So. 2d 216, 218 (Fla. 4th DCA 1997)). A citizen informant, on the other hand,

is presumed highly reliable because his or her “motivation in reporting illegality is

the promotion of justice and public safety,” and because the informant gives his or

her name to police and “can be held accountable for the accuracy of the

information given.” DeLuca, 40 So. 3d at 124. Therefore, “[a] tip from a citizen

informant is sufficient by itself to provide law enforcement with reasonable

suspicion to conduct a Terry stop.” Berry at 599 (citing State v. Maynard, 783 So.

2d 226, 228 (Fla. 2001)).

      Applying these principles to the facts in the instant case, we conclude the

deputy who stopped Appellant’s car did not have a well-founded suspicion of

                                         5
criminal activity needed to effect a lawful Terry stop. The disturbance calls that

sent the deputies to the property on the night question were anonymous tips bereft

of any details indicating the information given was reliable. Indeed, the first call

proved to be unfounded after deputies investigated. The second call, alleging

someone was overheard yelling “Shoot me now,” still did not provide any specific,

articulable facts indicating that Appellant (or any other identifiable person, for that

matter) was engaged in criminal activity. Thus, even if, as the State argues, we

could characterize the callers as citizen informants, there still was insufficient

information given to support a reasonable, articulable suspicion that a crime had

been, or was being, committed. See Florida v. J.L., 529 U.S. 266 (2000) (holding

anonymous tip claiming person was carrying a gun insufficient, without more, to

justify stop and frisk of the person); Baptiste v. State, 995 So. 2d 285 (Fla. 2008)

(holding anonymous 911 call describing person and alleging person had waved

firearm in public not sufficiently reliable to provide reasonable suspicion for

investigative stop of person matching the description).

      Because the anonymous calls provided neither the quantity nor the quality of

information necessary to create reasonable suspicion, the deputies needed

additional, independently-obtained information. They had none, for they had not

yet begun to investigate the alleged disturbance when Appellant’s car was stopped.

Nor did they observe any behavior by Appellant to generate reasonable suspicion

                                          6
he was or had been engaged in criminal activity involving a firearm. Compare

Hudson v. State, 41 So. 3d 948 (Fla. 2d DCA 2010) (finding reasonable suspicion

where officers received anonymous call that a man was burglarizing cars in

stadium parking lot, and observed person matching “vague description” carrying

two duffel bags and hurriedly walking away from stadium) and J.H. v. State, 106

So. 3d 1001 (Fla. 3d DCA 2013) (finding no reasonable suspicion where officer

responded to scene of fight reported by anonymous caller and observed no fight,

but saw and stopped a youth matching description who was merely sweating and

out of breath and appeared nervous).

       If the second deputy’s action could be characterized as attempting a

consensual encounter with Appellant, see generally Popple, 626 So. 2d at 186, we

could affirm the trial court’s denial of Appellant’s motion to suppress. But the

deputy effected the stop of Appellant’s car by activating the blue lights on his

cruiser, positioning the cruiser on the road such that Appellant had to stop directly

opposite, and ordering Appellant to remain in the car when he attempted to step

out.   “Although there is no litmus-paper test for distinguishing a consensual

encounter from a seizure, a significant identifying characteristic of a consensual

encounter is that the officer cannot hinder or restrict the person’s freedom to leave

or freedom to refuse to answer inquiries[.]” Id. at 187. On the other hand, “a

person is seized if, under the circumstances, a reasonable person would conclude

                                         7
that he or she is not free to end the encounter and depart.” Id. at 188. What

occurred in this case was a seizure—an investigatory stop for which a reasonable,

articulable suspicion of criminal activity by Appellant was required. Because the

anonymous calls failed to provide deputies with the requisite level of suspicion, the

stop of Appellant’s car was unlawful, and the trial court should have granted the

motion to suppress. Accordingly, we reverse the order of revocation of community

control and the subsequent judgment and sentence, and direct the trial court to

reinstate Appellant’s community control.

      REVERSED and REMANDED with directions.



ROWE and RAY, JJ., CONCUR.




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