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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

STATE OF FLORIDA,                            )
                                             )
              Appellant,                     )
                                             )
v.                                           )         Case No: 2D14-1569
                                             )
JAMES LEACH,                                 )
                                             )
              Appellee.                      )
                                             )

Opinion filed May 8, 2015.

Appeal from the Circuit Court for Sarasota
County; Donna Padar Berlin, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs Cline,
Assistant Attorney General, Tampa, for
Appellant.

Howard L. Dimmig, II, Public Defender,
and Clark E. Green, Assistant Public
Defender, Bartow, for Appellee.


WALLACE, Judge.

             The State of Florida appeals a circuit court order granting James Leach's

motion to suppress statements and physical evidence based on an alleged improper

detention. Because the law enforcement officers involved had a reasonable suspicion

sufficient to justify Mr. Leach's detention, which did not become a premature arrest
when he was handcuffed briefly while waiting for an eyewitness to arrive at the scene,

we reverse the circuit court's order.

                                        I. THE FACTS

              On April 5, 2013, at approximately 10:30 p.m., a citizen saw a man break

into a work truck parked at a business near the intersection of Warfield Avenue and

Cypress Avenue in Venice, Florida. Gregory Liedke owned the business, and the truck

was assigned to his employee, Donald Coup. Upon witnessing the man break into the

truck, the citizen called 911, reported the break-in while it was still in progress, and

informed the 911 operator that the perpetrator was carrying a white bucket and was

leaving the scene in a newer-model, "fancy," white automobile. The citizen informant

also described the perpetrator as a white male, fifty to sixty years old, and slightly

overweight. Based on this report, the 911 operator arranged for the issuance of a

BOLO ("be-on-the-lookout" alert) with the pertinent information.

              Officer Alec Gregoire of the Venice Police Department was patrolling the

area with Officer Walker. The two officers responded to the BOLO and immediately

went to the location of the business where the break-in had been reported. Finding no

one, the officers circled the block. A few minutes after the initial report, about one-

quarter of a mile from the scene of the break-in, the officers saw a 2005 white Chrysler

3001 at an auto repair business located in an industrial area. The Chrysler was parked

"on the easement" and "in the driveway," perpendicular to the other cars parked at the

business. The auto repair business and other nearby businesses were closed for the



              1
              Although the car was approximately eight years old, it was apparently
well-maintained and appeared to be relatively new.



                                            -2-
evening; there were no people around, and there was very little traffic. The officers'

attention was drawn to the Chrysler because of the odd manner in which it was parked

and its resemblance to the car described in the BOLO.

              The officers stopped to investigate. Immediately, they saw Mr. Leach

crouching behind the Chrysler. Both officers drew their pistols; Officer Gregoire

repeatedly commanded Mr. Leach to stand up and show his hands. Mr. Leach did not

move from his crouching position until after Officer Gregoire had warned him

approximately seven times. Finally, Mr. Leach stood up, and the officers could see that

he—like his automobile—matched the description given in the BOLO. The officers

handcuffed Mr. Leach for their safety and detained him pending a further investigation.

              The officers continued to hold the handcuffed Mr. Leach while waiting for

the man who had witnessed the break-in at the remodeling business to be transported

to the scene for a show-up identification. In the interim, the officers read Mr. Leach his

Miranda2 rights and asked him what he was doing at the auto repair business. Mr.

Leach explained that he was driving from his mother's home in Venice to his home in

Sarasota and that he had stopped at the auto repair shop to urinate. However, the area

where Mr. Leach claimed to have urinated showed no evidence of moisture.

              Meanwhile, Mr. Liedke and Mr. Coup had arrived at their business and

had confirmed that their truck had been broken into and reported several tools missing

from the truck. At the location where Mr. Leach was being detained, the officers

observed that the windows of Mr. Leach's car were open. Through the open windows,

the officers could see a white bucket and several tools in the back seat area of the car.


              2
                  Miranda v. Arizona, 384 U.S. 436 (1966).



                                            -3-
A few minutes after Mr. Leach had been detained, the witness arrived and immediately

identified Mr. Leach as the man he had seen breaking into the truck at Mr. Liedke's

business. The officers arrested Mr. Leach at 10:59 p.m. Thus the entire sequence of

events from the initial report of the incident until the officers placed Mr. Leach under

arrest took approximately thirty minutes.

              The Chrysler driven by Mr. Leach was towed to the police impound lot.

Mr. Coup came to the police department and identified the items recovered from the car

as the same tools that had been taken from his truck. Accordingly, the State charged

Mr. Leach with the burglary of an unoccupied conveyance in violation of sections

810.02(1) and 810.02(4)(b), Florida Statutes (2012), a third-degree felony.

                            II. THE TRIAL COURT'S RULING

              Mr. Leach filed a motion to suppress "all tangible items of property,

admissions, and other evidence seized by the police during and after an unlawful and

unreasonable search and seizure of an automobile he had legally parked." At the

hearing on the motion to suppress, the State called Officer Gregoire as its only witness;

the defense did not call any witnesses. Thus the facts presented to the circuit court

were substantially undisputed. At the hearing, as he does on appeal, Mr. Leach relied

primarily on Baggett v. State, 849 So. 2d 1154 (Fla. 2d DCA 2003). The State relied

primarily on State v. J.T., 132 So. 3d 331 (Fla. 4th DCA 2014), and Studemire v. State,

955 So. 2d 1256 (Fla. 4th DCA 2007).

              The trial judge took the matter under consideration for a couple of days

and then announced her ruling as follows:

                    In reviewing the case law provided to the Court,
              based upon me accepting the officer's testimony as the facts



                                            -4-
              of this case and [defense counsel's] concession on behalf of
              the Defense that this was a citizen informant reporting so
              there isn't as high a threshold, the burglary alone in the
              description, I do not think provided the sufficient—whether
              you call it reasonable suspicion or probable cause—for the
              officers to then draw out their guns and detain them [sic] for
              the length of time that they did, whether it was for loitering or
              prowling, but for the burglary in this case which is what the
              State was proceeding on.

              ....

                     So based upon [the BOLO] at this point, while that
              was enough to get the officers going and approaching and
              everything that they did, by the time that they got to Mr.
              Leach, and I do accept the State's argument that they
              reached him within a short period of time in a smaller
              temporal proximity, but at that point, the gun drawn, the
              handcuffs on, I don't believe there was probable cause to
              detain him for the burglary at that point. So I will go ahead
              and grant [the motion].

The circuit court did not make any additional findings in its written order granting Mr.

Leach's motion to suppress. This appeal followed.3

                            III. THE STANDARD OF REVIEW

              We employ a mixed standard of review in considering the circuit court's

ruling on Mr. Leach's motion to suppress. The circuit court's determination of historical

facts enjoys a presumption of correctness and is subject to reversal only if it is not

supported by competent, substantial evidence in the record. See E.B. v. State, 866 So.

2d 200, 202 (Fla. 2d DCA 2004). However, the circuit court's determinations on mixed

questions of law and fact and its legal conclusions are subject to de novo review. See




              3
              We have jurisdiction of the State's appeal in accordance with Florida Rule
of Appellate Procedure 9.140(c)(1)(B).



                                            -5-
Ornelas v. United States, 517 U.S. 690, 699 (1996); Connor v. State, 803 So. 2d 598,

608 (Fla. 2001); E.B., 866 So. 2d at 202.

                                     IV. DISCUSSION

A. The Validity of Mr. Leach's Initial Detention

              We begin our analysis by considering whether the information provided by

the citizen informant and the other pertinent circumstances gave Officers Gregoire and

Walker a reasonable suspicion sufficient to justify their initial investigative stop of Mr.

Leach. The trial court apparently concluded that the officers' initial stop of Mr. Leach

was justified. We agree. In determining this question, we look to the totality of the

circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002) (noting that reviewing

courts "must look at the 'totality of the circumstances' of each case to see whether the

detaining officer has a 'particularized and objective basis' for suspecting legal

wrongdoing" (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981))).

              Here, the BOLO to which the officers responded described an older,

heavyset, white male who had broken into a work truck at a remodeling business and

had driven away in a newer, white automobile. Granted, the description of the

perpetrator of the break-in was sketchy and amounts to a vague description that would

fit many individuals. Nevertheless, the other pertinent circumstances known to the

officers when they decided to make the initial investigative stop of Mr. Leach provided a

much more complete picture. First, the time elapsed between the incident under

investigation and the officers' response was very brief. Second, the incident occurred

after normal hours in a business or industrial area where there were no other people

around and very little traffic. Third, the officers encountered Mr. Leach within




                                             -6-
approximately one-quarter mile of the site of the reported break-in. Fourth, when the

officers saw Mr. Leach, he was trying to conceal himself behind a car. Fifth, Mr. Leach's

car matched the description of the car in the BOLO. Sixth, Mr. Leach's car was parked

at an odd angle in the parking lot of an auto repair business that was closed for the day.

Finally, Mr. Leach initially refused the officers' repeated commands to stand up and

show his hands.

              Clearly, the totality of the foregoing circumstances gave Officer Gregoire

and Officer Walker reasonable suspicion to believe that Mr. Leach was engaged in

illegal activity. See State v. Augustyn, 490 So. 2d 104, 106 (Fla. 2d DCA 1986) (holding

that the temporal proximity between the tip, the police response, and the sighting of the

suspect was "[o]f crucial significance" to the determination of reasonable suspicion, and

also noting that the location was not densely populated, "making it more reasonable to

be suspicious of the van"); Austin v. State, 640 So. 2d 1247, 1248-49 (Fla. 5th DCA

1994) (noting that factual information provided by a known informant that is imperfect

can still be sufficient under the totality of the circumstances to provide an officer with

reasonable suspicion (citing State v. Evans, 620 So. 2d 802, 803 (Fla. 2d DCA 1993)));

see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("Our cases have also

recognized that nervous, evasive behavior is a pertinent factor in determining

reasonable suspicion."); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) ("Respondent's

strange movements in his attempt to evade the officers aroused further justifiable

suspicion . . . ."). Applying the law to the facts of this case, we conclude that the officers

had ample justification to suspect that Mr. Leach was involved in criminal activity and to




                                             -7-
detain him briefly in order to make a further investigation. See Wardlow, 528 U.S. at

125.

              On the issue of the validity of the officers' initial stop, we conclude that

Baggett, the case upon which Mr. Leach primarily relies, is easily distinguishable on its

facts. The Baggett court held that neither the citizen informant's tip nor the officer's

subsequent observations was "suggestive of any criminal conduct or linked Baggett to

any burglaries or to any [suspicious] vehicle." 849 So. 2d at 1156-57. Under these

circumstances, the court held that "the stop of Baggett was not justified because the

circumstances did not create a reasonable suspicion that Baggett was involved in

criminal activity." Id. at 1157. By contrast, in this case, both the informant's tip and the

officers' subsequent observations strongly pointed to Mr. Leach as a suspect in the

recent vehicle break-in.

              We note the trial judge's comments about the officers' actions in drawing

their pistols when they initially confronted Mr. Leach. Under the particular

circumstances present here, we believe that it was reasonable—if not required by police

procedures—for the officers to draw their weapons. The officers were facing a felony

suspect who was hiding behind a car at night in the parking lot of a closed business.

The officers could not determine whether or not the suspect was armed. Leaving their

weapons holstered while they reiterated their commands that Mr. Leach stand up and

show his hands would have put the officers at an unnecessary risk. See Saturnino-

Boudet v. State, 682 So. 2d 188, 191 (Fla. 3d DCA 1996) ("[T]he officer may detain the




                                            -8-
individual even at gunpoint and/or by handcuffs for the officer's safety without converting

the Terry[4] stop into a formal arrest.").

B. The Duration of the Stop and the Use of Handcuffs

               We now turn to a consideration of the length of Mr. Leach's detention and

the officers' use of handcuffs to restrain him. The trial court apparently concluded that

the length of Mr. Leach's detention and the officers' use of handcuffs converted a stop

that was valid at the beginning into an illegal detention. We disagree. The first question

that we are called upon to determine is whether the detention of Mr. Leach for a few

minutes while the officers waited for the citizen informant to travel to the scene for a

show-up identification was justified.

                        Certain constraints on personal liberty that constitute
               "seizures" for purposes of the Fourth Amendment may
               nonetheless be justified even though there is no showing of
               "probable cause" if "there is articulable suspicion that a
               person has committed or is about to commit a crime." Such
               a temporary detention for questioning . . . is reviewed under
               the lesser standard enunciated in Terry v. Ohio, 392 U.S. 1,
               88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and is permissible
               because of the "public interest involved in the suppression of
               illegal transactions in drugs or of any other serious crime."

Rodriguez, 469 U.S. at 5 (citation omitted).

               Here, Officer Gregoire and Officer Walker had a well-founded suspicion

that Mr. Leach was involved in the break-in of the truck at the remodeling business a

short distance from their location. Mr. Leach's explanation for his presence in the

parking lot of the closed business was doubtful at best and could not be verified. Under

these circumstances, holding Mr. Leach for a few minutes to allow an eyewitness to



               4
                   Terry v. Ohio, 392 U.S. 1 (1968).



                                              -9-
come to the scene and confirm whether or not Mr. Leach was the perpetrator of the

vehicle break-in was entirely reasonable. See State v. Merklein, 388 So. 2d 218, 219-

20 (Fla. 2d DCA 1980) (holding that it was reasonable to detain the defendants for

twenty to forty minutes pending the arrival of another officer, the robbery victim, and

witnesses where the defendants and their automobile fit the radio description of two

attempted armed robbery suspects); Fernandez v. State, 57 So. 3d 915, 917 (Fla. 3d

DCA 2011) ("[T]he detention was brief and was limited to the sole purpose of allowing

the victims to be transported to where the defendant was being detained to conduct

show-up identifications. . . . [W]e reject the defendant's contention that the police officer

exceeded the scope of the temporary detention."); Saturnino-Boudet, 682 So. 2d at 191

(rejecting the defendant's argument that his detention lasting thirty to forty minutes

pending the arrival of a canine unit was the de facto equivalent of an arrest without

probable cause); Bilinski v. State, 463 So. 2d 424, 425 (Fla. 3d DCA 1985) ("The

defendants were not unlawfully in custody when they were identified by the eyewitness

at a prompt on-the-scene police show-up . . . ."). It is worth remembering that in most

scenarios such as the one in this case, the failure of the witness to identify a suspect

paves the way for the detainee's prompt release.

              Moreover, the officers' decision to handcuff Mr. Leach while they waited

for the witness to arrive did not convert a valid investigatory detention into a custodial

arrest. See Reynolds v. State, 592 So. 2d 1082, 1084 (Fla. 1992) ("Courts have

generally upheld the use of handcuffs in the context of a Terry stop where it was

reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to

flee."); Studemire, 955 So. 2d at 1257 ("The use of handcuffs does not automatically




                                           - 10 -
turn an investigatory stop into a de facto arrest."); Saturnino-Boudet, 682 So. 2d at 191

(same). Here, Mr. Leach's attempt to conceal himself, his initial refusal to obey the

officers' commands while they were pointing pistols at him, and his proximity to a car

into which he might reach for a weapon or that he might use as a means of escape

raised reasonable concerns for the officers' safety and the possibility that Mr. Leach

might attempt to flee. Under the circumstances, it was reasonable for the officers to

handcuff Mr. Leach during the brief, investigative detention while they waited for the

witness to arrive.

                                     V. CONCLUSION

              To summarize, we hold that the officers' initial detention of Mr. Leach was

supported by reasonable suspicion. The detention was not converted into a premature

arrest either by the relatively brief duration of the detention or the officers' decision to

place Mr. Leach in handcuffs while waiting for the eyewitness to arrive. For these

reasons, the circuit court erred in granting Mr. Leach's motion to suppress. We reverse

the order granting the motion to suppress, and we remand this case to the circuit court

for further proceedings consistent with this opinion.

              Reversed and remanded for further proceedings.



KHOUZAM and SLEET, JJ., Concur.




                                             - 11 -
