IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT

STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT 

ON APPEAL FROM A FINAL CRIMINAL JUDGMENT AND SENTENCE IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA. 

HON. ANGELA C. DEMPSEY, PRESIDING.  

TABLE OF CITATIONS

Cases                                                                                                Page(s)

Bellamy v. State, 696 So. 2d 1218 (Fla. 2d DCA 1997)………………………….13

Connor v. State, 803 So. 2d 598 (Fla. 2001)……………………………………….7

Jean v. State, 987 So. 2d 196 (Fla. 4th DCA 2008)…………………………………9

King v. State, 17 So. 3d 728 (Fla. 1st DCA 2009)…………………………………7

Popple v. State, 626 So. 2d 185 (Fla. 1993)………………………………………..8

State v. Setzler, 667 So. 2d 343 (Fla. 1st DCA 1995)…………………………11, 12

State v. Wise, 603 So. 2d 61 (Fla. 2d DCA 1992)………………………………….9

Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990)………………………………9

Stennes v. State, 939 So. 2d 1148 (Fla. 4th DCA 2006)……………………………8

Taylor v. State, 695 So. 2d 503 (Fla. 2d DCA 1997)……………………………..13

 

Constitutional Provisions, Rules Statutes and                                Page(s)

Other Authorities

U.S. Const. Amend. 4………………………………………………………………8

Fla. Const. Art. 1 § 12………………………………………………………………8

Fla. R. App. P. 9.210………………………………………………………………14

PRELIMINARY STATEMENT

Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein by as “the Defendant” or by name.  Appellee, the State of Florida, will be referred to as “the State.”

The Record on Appeal is contained, in total, in six (6) volumes.  References to the initial volume will be cited using the abbreviation “R” followed by the appropriate page number.  References to the jury selection transcript will be cited using the abbreviation “JS” followed by the appropriate page number.  References to the three (3) volumes of trial transcript will be cited using the abbreviation “I”, “II” or “III” followed by the appropriate page number.  References to the sentencing transcript will be cited using the abbreviation “S” followed by the appropriate page number.  Exhibits entered at the January 5, 2010 hearing in this case will be cited using the abbreviation “Ex” followed by the appropriate exhibit number.  No trial exhibits are cited in this brief.

A compact disk (CD) exhibit was entered as an exhibit during the January 5, 2010 hearing and is included with the District Court’s copy of the Record on Appeal.  The CD can be heard at the District Court after making arrangements with the clerk.  The CD contains one (1) continuous recording.  Undersigned counsel has listened to the CD at the clerk’s office.  The CD was received as State’s Exhibit 2 at the hearing and will be cited as “Ex: 2”.

STATEMENT OF THE CASE AND OF THE FACTS

A.      Nature of the Case

This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, Case Number: XXXXXXXXXX, rendered against Mr. XXXXXXXXXX, Appellant, Defendant below, on XXXXXXXXXX. (S: 15); (R: 62-72).

B.      Course of Proceedings Below and Statement of the Facts

XXXXXXXXXX was charged by amended information with armed robbery, carrying a concealed firearm and possession of a firearm by a convicted felon[1]. (R: 9-10).  XXXXXXXXXX was charged along with a co-defendant in one single, Amended Information. (R: 9-10).  XXXXXXXXXX retained private counsel. (R: 26-27).  XXXXXXXXXX’s attorney filed a Motion to Suppress. (R: 28-31).  The motion sought to suppress all physical evidence and statements obtained from XXXXXXXXXX following an illegal traffic stop. (R: 29).  The motion alleged that law enforcement had unreasonably stopped XXXXXXXXXX after receiving be-on-the-lookout “BOLO” information. (R: 30).  XXXXXXXXXX’s case proceeded to a jury trial.  XXXXXXXXXX and his co-defendant were tried together. (JS: 1).    Following jury selection but prior to opening statements, a hearing was held on XXXXXXXXXX’s Motion to Suppress. (JS: 121-122); (I: 4).

Deputy Adam Wilkinson of the Leon County Sheriffs Office was on patrol in the city of Tallahassee in the early morning hours of XXXXXXXXX. (I: 5-6).  Deputy Wilkinson noticed a light blue Ford Mustang driving fifty-five (55) miles per hour in an area where the speed limit was thirty-five (35) miles per hour. (I: 6; 16).  The vehicle was traveling down a very steep hill. (I: 6).  Deputy Wilkinson decided he was going to pull over the light blue Mustang for a speed violation. (I: 7).  Deputy Wilkinson however did not immediately pull over the light blue Mustang.  Prior to Deputy Wilkinson conducting a traffic stop on the light blue Mustang he learned that a robbery had been reported nearby. (I: 7).   Deputy Wilkinson’s law enforcement radio informed him that another jurisdiction, the Tallahassee Police Department, received a report of a robbery in the vicinity. (I: 7).  The light blue Mustang was traveling away from the location of the reported robbery. (I: 7).  Wilkinson learned that a reported vehicle associated with the robbery was possibly a black Mustang. (I: 7; 8).  Wilkinson understood that dispatch was not completely sure what type of vehicle was associated with the robbery. (I: 23); (Ex: 2).  Wilkinson believed that the light blue Mustang he had seen may have been involved with the robbery. (I: 8).  Deputy Wilkinson began following the light blue Mustang. (I: 8).

According to Wilkinson the light blue Mustang turned onto a residential street and stopped at a house. (I: 9).  The light blue Mustang had tinted windows and Wilkinson was unable to see inside the vehicle. (I: 17).  Wilkinson did not think that the light blue Mustang he had followed was the vehicle described in the BOLO and he drove around the corner from the house where the vehicle had stopped. (I: 8).  At that time Wilkinson testified he received additional BOLO information which included a description of the clothing worn by the robbery suspects. (I: 9).  Wilkinson testified he observed, through his rear view mirror, two (2) black males exit the vehicle. (I: 10).  After being refreshed with his contemporaneous statement Wilkinson testified that one black male was wearing a white t-shirt and the other was wearing a gray and white jacket. (I: 12).  Wilkinson testified that one of the black males he observed through his rearview mirror had long dreadlocks. (I: 12).  Deputy Wilkinson testified that he received updated BOLO information which changed his opinion about the light blue Mustang he had followed. (I: 12).  Wilkinson testified he turned his car around and began following the light blue Mustang which had left the house and was traveling down a street. (I: 12).  Wilkinson was unable to determine whether the two (2) individuals he observed exiting the vehicle had returned to the vehicle or had gone elsewhere. (I: 18).  The light blue Mustang was obeying all traffic laws. (I: 17).  At that time Wilkinson notified the Tallahassee Police Department that he possibly had the vehicle which they wanted and informed them of his location. (I: 12-13); (Ex: 2).  The light blue Mustang turned into another residence and parked.  The driver of the light blue Mustang got out of the vehicle and started to walk away from the car. (I: 13).  Tallahassee Police Department officers arrived at that time and a felony stop was conducted on the light blue Mustang. (I: 13).  Officers from the Tallahassee Police Department conducted the actual stop and Deputy Wilkinson’s involvement with the case was limited to the following of the light blue Mustang and the stop. (I: 13).

Deputy Wilkinson did not write a report about the trailing and stop of the light blue Mustang but he did provide a statement to the Tallahassee Police Department. (I: 15); (Ex: 1).  In his statement he never mentioned that he had observed the light blue Mustang speeding. (I: 15); (Ex: 1).  Both BOLO reports received by Wilkinson indicated that the suspect vehicle was possibly  a black Mustang. (I: 16); (Ex: 2; 3).  When the light blue Mustang was out of Wilkinson’s sight he could not determine whether the occupants in the suspect clothing who got out of the vehicle returned to the vehicle or whether different individuals got into the vehicle. (I: 18).  Wilkinson had run the tag on the light blue Mustang when he was following it and the tag had returned to an address in the neighborhood through which he was following the vehicle. (I: 18-19); (Ex: 2; 3).

Tallahassee Police Department Officer David McKenna was working that same October night. (I: 24).  Officer McKenna had responded to a call about an armed robbery. (I: 24).  Officer McKenna made contact with the victims of the armed robbery and was informed of additional descriptive information about the robbery suspects. (I: 25; 30).  Officer McKenna broadcast this information over his radio. (I: 25-26; 30).  A recording of the radio broadcasts was entered into evidence. (I: 26); (Ex: 2).  The dispatch printouts from the call were also entered into evidence. (I: 29); (Ex: 3).

One of the victims of the armed robbery testified at the hearing. (I: 33).  The victim testified that he had phoned law enforcement no more than five (5) or (10) minutes after the robbery occurred. (I: 34).  The victim testified that he reported the car was a gray Mustang. (I: 34).

A cooperating co-defendant testified as well. (I: 35).  The cooperating co-defendant testified that he had been involved in an armed robbery with Mr. XXXXXXXXXX and the other co-defendant that night. (I: 35).  He further testified that the three (3) co-defendants had left the scene in the vehicle which was a light blue Mustang. (I: 36; 38).  The cooperating co-defendant testified that the light blue Mustang never stopped at a residence prior to the felony stop where all three (3) co-defendants were arrested. (I: 38; 45).

Argument was presented to the court. (I: 38; 44).  The court found that Wilkinson had seen specific clothing which matched descriptions, specifically a multicolored jacket and a gray sweatshirt prior to stopping the vehicle, and this fact made the stop a permissible BOLO stop. (I: 48-49).  The trial court denied the motion. (I: 49).

The case proceeded to trial. (I: 58).  Three (3) victims testified substantially that they were leaving a local sports bar through a parking lot. (I: 78; 79; 81); (I: 106-107);(I: 123-124).  The victims testified that they began some casual conversation with a group of males in the parking lot. (I: 80); (I: 109); (I: 125).  The victims testified that they were walking to their vehicle when one of the males produced a handgun and they were robbed. (I: 83); (I: 108); (I: 125).  None of three victims could identify XXXXXXXXXX during the trial. (I: 88-89); (I: 113-114); (I: 129).  Deputy Wilkinson testified about his stop of the light blue Mustang. (I: 143).  Officer McKenna testified that he brought two (2) of the victims to the scene of the traffic stop where they identified the defendants as the individuals who had robbed them. (I: 157).  McKenna also testified that the victims’ property was found inside the vehicle. (I: 158-160).  Photographs depicting the victims’ property inside the defendants’ vehicle were entered into evidence. (I: 158-160).

Tallahassee Police Department Officer Richard Pulido testified that he recovered a revolver from the floorboard of the driver’s seat of the defendants’ vehicle. (II: 182).  Officer Pulido also testified that the victims’ property was located throughout the defendants’ vehicle. (II: 183).

The cooperating co-defendant testified that he was friends with the two co-defendants on trial and that they had participated in the robbery. (II: 192; 194-196).  The cooperating co-defendant testified he was arrested that night along with the other two defendants. (II: 207).

The State and the defense stipulated that the revolver was an operable firearm. (II: 229).  The State rested. (II: 235).

The defense presented one (1) witness. (II: 236-244).  The defense made a motion for judgment of acquittal. (II: 245).  XXXXXXXXXX was allowed to step in front of the jury so that the jurors could view distinctive tattoos on his face. (II: 269).  The defense rested. (II: 269).  Closing arguments were given. (III: 313; 324; 338; 351).  The jury was instructed. (III: 363).  The jury deliberated for roughly four (4) hours. (III: 365; 369).  The jury returned with guilty verdicts as to three (3) counts of armed robbery and one (1) count of carrying a concealed firearm. (III: 370).  At a later proceeding XXXXXXXXXX was sentenced to twenty (20) years incarceration within the Department of Corrections. (S: 15).  A timely notice of appeal was filed. (R: 74).  This appeal follows.

C.      Standard of Appellate Review

In reviewing a trial court’s ruling on a motion to suppress appellate courts accord a presumption of correctness to the trial court’s factual findings, but must independently review mixed questions of law and fact. Connor v. State, 803 So. 2d 598 (Fla. 2001); King v. State, 17 So. 3d 728, 730 (Fla. 1st DCA 2009).

SUMMARY OF THE ARGUMENT

XXXXXXXXXX is entitled to a new trial because the trial court erred in denying his motion to suppress evidence which was obtained during a traffic stop unsupported by reasonable suspicion.

GROUND I

THE TRIAL COURT ERRED IN DENYING XXXXXXXXXX’S MOTION TO SUPPRESS

 

In order for the stop of a vehicle and the temporary detention of the vehicle’s occupants to pass muster under the Fourth Amendment[2], police must have a reasonable suspicion of criminal activity in order to justify the stop. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). A mere hunch is insufficient. Stennes v. State, 939 So. 2d 1148, 1150 (Fla. 4th DCA 2006).

In determining the legality of a stop as a consequence of a BOLO, this court looked to factors such as the length of time and distance from the offense, specificity of the description of the alleged perpetrator(s), the source of the BOLO information, the time of day, absence of other persons in the vicinity of the sighting, suspicious conduct, and any other activity consistent with guilt. 

Jean v. State, 987 So. 2d 196, 198 (Fla. 4th DCA 2008).

In State v. Wise, 603 So. 2d 61, 63 (Fla. 2d DCA 1992) the Second District discussed the factors which have bearing on whether an officer has reasonable suspicion to conduct a vehicle stop pursuant to a BOLO, including amount of time since the offense, the physical distance from the offense, the specificity of the description of the vehicle and its occupants, as well as the source of the BOLO information.

The reasonableness of an officer’s suspicion must be based on the totality of the circumstances. Steele v. State, 561 So. 2d 638, 641 (Fla. 1st DCA 1990).

length of time and distance from the offense

In this case the victim who testified at the suppression hearing testified he telephoned authorities no longer than five (5) to ten (10) minutes after the robbery. (I: 34).  Deputy Wilkinson testified that the light blue Mustang was traveling at fifty-five (55) miles per hour roughly three-quarters of a mile from the scene of the robbery when the call was broadcast on law enforcement radio. (I: 7; 22).  The BOLO indicates the suspects left Arkansas Street and made a left onto Alabama Street. (Ex: 2; 3).  Deputy Wilkinson first encountered the light blue Mustang on High Road. (I: 6).  Deputy Wilkinson, while trailing the vehicle, eventually learned that the light blue Mustang was registered to a nearby address. (I: 17-19).

specificity of the description of the alleged perpetrators

Neither the car nor the occupants directly matched the description given in the BOLO.  While the BOLO twice described a black Mustang it was undisputed that the Mustang containing the Appellant was light blue. (I: 16; 38); (Ex: 2; 3). Additionally the BOLO described four (4) black males. (I: 9).  Deputy Wilkinson testified he could not see the individuals inside the light blue Mustang and that he saw two (2) black males exit the vehicle prior to conducting the stop. (I: 17; 10-11).  It was undisputed that the light blue Mustang had tinted windows and that Deputy Wilkinson was unable to view any individuals inside the vehicle. (I: 17).

Wilkinson’s testimony indicated that he observed two (2) individuals exit the vehicle at a residence. (I: 10-11).  Wilkinson testified that when the vehicle was stopped at the residence he had decided the vehicle was unrelated to the robbery. (I: 12).  It was the clothing he saw on two (2) individuals who exited the vehicle at the residence which changed Wilkinson’s mind and led him to believe the light blue Mustang was associated with the robbery. (I: 8-9).  However Wilkinson was unable to determine whether those individuals were inside the vehicle or elsewhere when he again followed the light blue Mustang prior to stopping it. (I: 18).  Deputy Wilkinson’s testimony reveals that he had no idea whether the individuals inside the vehicle were the individuals he saw wearing the specific clothing he observed.

Wilkinson testified he observed a different number of black males inside a different color car which was registered in the neighborhood.  XXXXXXXXXX submits that the relationship between what Wilkinson observed and the descriptive information is insufficiently specific to justify the stop of the light blue Mustang.  No witness testified at the suppression hearing that any of the defendants arrested in the light blue Mustang was ultimately found to be wearing a patterned jacket or a white shirt. (I: 5-49).  The BOLO information was entered into the record at the suppression hearing. (Ex: 2; 3).  The BOLO information facially indicates that the wanted suspects were wearing a patterned jacket and a white shirt. (Ex: 2; 3).  This information conflicts with the trial court’s holding that Wilkinson was justified in stopping the vehicle after observing a multicolored jacket and a gray sweatshirt. (I: 49).

These facts differ significantly from those relied upon by the State and the trial court in State v. Setzler, 667 So. 2d 343 (Fla. 1st DCA 1995).  In Setzler the BOLO information contained an accurate description of the color of the vehicle as well as an accurate number of suspects observed by the officer prior to the stop.

 

 

source of the BOLO information

XXXXXXXXXX acknowledges that this court had previously held crime victims’ reports to law enforcement constitute reliable information. State v. Setzler, 667 So. 2d 343, 348-349 (Fla. 1st DCA 1995).

time of day, absence of other persons in the vicinity of the sighting

The record reflects that the trailing and stop of the light blue Mustang occurred in the early morning hours. (I: 20-21).  Wilkinson testified that traffic was “very light” during the time period he trailed the light blue Mustang. (I: 21).  However Deputy Wilkinson testified that, due to the location of the neighborhood near several bars, it was not uncommon for cars to be on the road in that area at that hour. (I: 20-21).  This is supported by the trial testimony in this case which indicated the victims were at a nearby bar when it closed down just prior to the robbery. (I: 78; 79; 81).

suspicious conduct and any other activity consistent with guilt

It is undisputed that the light blue Mustang did not try to flee while the deputy was following it.  Deputy Wilkinson testified that, while he followed the light blue Mustang, the vehicle obeyed traffic laws and that it was registered to a nearby address. (I: 17-19).  The deputy did not testify to any criminal activity, suspicious behavior, or any other behavior consistent with guilt while he trailed the light blue Mustang.

CONCLUSION

          In this case the vague and unsupported description of the suspects contained in the BOLO information was overly general to justify a stop.  Similar to cases such as Bellamy v. State, 696 So. 2d 1218 (Fla. 2d DCA 1997) and Taylor v. State, 695 So. 2d 503 (Fla. 2d DCA 1997) XXXXXXXXXX respectfully requests this Honorable Court reverse his judgment and remand his case for further proceedings with directions that the trial court grant his Motion to Suppress.

Respectfully submitted,

 

______________________

Luke Newman

908 Thomasville Road

Tallahassee, Florida 32303

850.224.4444 (phone)

Fla. Bar ID 0859281

lukenewmanlaw@hotmail.com

[1] The possession of a firearm by a convicted felon charge was nolle prossed during the eventual trial in this case. (III: 290).

[2] U.S. Const. Amend. 4; Fla. Const. Art. 1 § 12.