State v. SpurlingState v. Spurling
The state appeals the trial court‘s order granting defendant‘s motion to suppress tangible evidence. The trial court agreed with defendant‘s contention that because the initial stop was improper, his subsequent arrest was tainted and could not justify a search incident thereto. We find that there was sufficient basis for the deputy sheriff to stop appellant and, therefore, reverse.
The facts are undisputed, the only testimony at the hearing on the motion to suppress being that of the arresting officer, Deputy Joe Moore of the Pasco County Sheriff‘s Office. The sheriff‘s office had received numerous complaints from the management of the Stardust Bowling Lanes regarding juveniles and adults loitering in their parking lot while consuming alcoholic beverages or using drugs. The management requested the sheriff‘s office to increase their patrol of the grounds around the bowling lanes for the purpose of preventing such loitering. Deputy Moore had received such a complaint from the management on the night before the incident involved here.
On the night in question at approximately 10:20 p.m., Deputy Moore was on a routine patrol around the Stardust Bowling Lanes. He was alone, in uniform and driving a marked sheriff‘s automobile. After first driving around the parking lot on the west side of the building, the deputy continued his patrol by driving to the parking lot on the east side of the building, where he observed the defendant urinating on the side of a truck. Defendant was standing on the driver‘s side and another male was standing on the passenger‘s side of the truck. The deputy did not know at that time that the truck belonged to the defendant. While the defendant finished urinating, the deputy got out of his vehicle and requested the passenger to step over to his patrol car in order to question him for the purpose of filling out a field interrogation report (FIR).1
After completing most of the FIR on defendant, the deputy attempted to obtain the truck‘s identification number, not knowing whether or not it had been stolen. He walked to the passenger side and shined his flashlight inside, at which point defendant shouted, “Get the hell away from my truck!” This remark was loud enough to be heard in the parking lot. The deputy ignored the remark, however, and went to the other side of the truck, still attempting to obtain an identification number. He was unsuccessful and returned to the passenger side, where he was again greeted by defendant‘s shouting at him in profane, abusive and derogatory language. This was loud enough to capture the attention of a group of people entering the bowling lanes. As the deputy turned to confront him, defendant placed his hand on the deputy‘s shoulder. At that point the defendant was arrested for disorderly intoxication. When the deputy conducted a pat down search before placing defendant in the patrol car, he discovered approximately seventy-one grams of suspected marijuana in the crotch of defendant‘s pants.
The sole question at the hearing on the motion to suppress the marijuana was whether the deputy was justified in stopping and questioning the defendant under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Florida‘s “Stop and Frisk Law“,
We fully recognize and adhere to the well-settled proposition that a trial court‘s ruling on a motion to suppress comes to this court with a presumption of correctness and must be accepted by this court if the record reveals evidence to support the findings. See e.g., State v. Battlemen, 374 So.2d 636 (Fla. 3d DCA 1979). We must conclude here, however, that the unrefuted evidence offered by Deputy Moore does not support the trial court‘s finding.
We are not concerned here with “probable cause” to make an arrest, but with whether the facts and circumstances apparent to the deputy created a “founded” or “reasonable suspicion” that something was amiss requiring his further investigation. A temporary detention is permissible if the facts available to the deputy at the time would warrant a person of reasonable caution in believing that the action taken was appropriate. Franklin v. State, 374 So.2d 1151 (Fla. 3d DCA 1979); Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976). A “founded suspicion” is that which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer‘s knowledge. In those cases where reasonable persons might differ as to whether the circumstances observed by the officer gave him an objective foundation for his suspicion, certain factors may
Those tests support Deputy Moore‘s actions here. Though he had no knowledge that either the defendant or the passenger had violated any laws at the time he initially observed them, he testified that he approached them “[b]ecause they were loitering out there in the parking lot.” Both the Pasco County Sheriff‘s Office and, as late as the night before, Deputy Moore himself, had received complaints and requests for assistance from the management of the bowling lanes because of problems arising from people who were involved with drugs and alcohol and loitering in the parking lot. With that knowledge, his observation of the defendant outside the bowling lanes at 10:20 p.m. urinating against the side of a truck was behavior incongruous or unusual enough to warrant his further investigation. Surely a law enforcement officer under those circumstances is not required to ignore the incident and proceed on, doing nothing.
Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
Rather than the motive of the arresting officer, what must be examined is the conduct of the defendant that gave rise to his ultimate arrest and search. State v. Nittolo, 317 So.2d 748 (Fla. 1975); State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971). If Deputy Moore‘s suspicions were aroused because the defendant was loitering as defined by the statute, he was obligated to further investigate. Before he could arrest defendant for loitering he would have had to satisfy himself as to whether or not the defendant‘s suspected loitering or prowling was done under conditions which threatened a breach of the peace or the public safety of persons or property. In State v. Ecker, 311 So.2d 104, 110 (Fla. 1975), the supreme court held:
The whole purpose of the statute is to provide law enforcement with a suitable tool to prevent crime and allow a specific means to eliminate a situation which a reasonable man would believe could cause a breach of the peace or a criminal threat to persons or property.
It was while attempting to satisfy this requirement that defendant‘s conduct and physical appearance and condition precipitated his arrest, not for loitering but for disorderly intoxication.
The supreme court in State v. Nittolo, supra, adopted the dissenting opinion in the district court decision being reviewed. What was said there applies to the facts here, for here as there, “The police officer was where he should have been, doing what he was trained to do; and the mere fact that the defendants panicked” and engaged in conduct that precipitated the arrest and subsequent search “ought not give rise to an after-the-fact contention that the officer” had unreasonably detained the defendant for his initial investigation. 317 So.2d at 750. As was further said there:
“It seems to me to suppress the evidence under the instant circumstances requires us to strain our Constitution `through a filament of unrealistic exactitude‘. See Mattier v. State, Fourth District Court of Appeal, 301 So.2d 105. What the state and federal Constitutions forbid is not all searches and seizures but only unreasonable searches and seizures; the Constitution does not forbid the application of common sense in the detection of crime and the apprehension of criminals. State v. Holmes, supra. As I indicated in Mattier v. State, supra, `there is no war between the Constitution and common sense.‘”
As we held in State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973), regarding a frisk under the stop and frisk law, it is apparent that no hard and fast rule can be adopted which will in every instance guide the police as to when they may or may not stop or detain an individual for further investigation. For the trial court to apply Vollmer v. State, supra, in this case was a too stringent limitation on the responsibilities and obligations of Deputy Moore when he observed the actions of the defendant in light of the previous knowledge he possessed while patrolling the area where the incident took place.
We, therefore, reverse and remand for treatment consistent with this opinion.
GRIMES, C.J., and SCHEB, J., concur.