Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-499 _____________________________ MICHAEL SHERODCHARLES KNOX, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge. June 10, 2020 LEWIS, J. Appellant, Michael Sherodcharles Knox, appeals his conviction and sentence for possession of a firearm by a convicted felon, challenging the trial court’s denial of his motion to suppress. For the reasons that follow, we affirm. BACKGROUND Appellant was charged with burglary of a structure while armed with a firearm (Count 1), possession of a firearm by a convicted felon (Count 2), grand theft of a firearm (Count 3), and possession of a firearm by a convicted felon (Count 4). The first three counts pertained to the burglary of AD-TEK, a gun retail store, on or about February 24, 2018. Count 4 alleged that the offense charged therein occurred on or about February 27, 2018, and it was severed for trial. This appeal concerns only Count 4. Appellant sought the suppression of physical evidence on the ground that it was obtained as a result of a de facto arrest without an arrest warrant or probable cause. At the suppression hearing, Officer Petroczky, who had been employed by the Tallahassee Police Department for thirteen years, testified that he paid close attention to the intel bulletins that were disseminated within the police department shortly after the February 24, 2018, burglary of the AD-TEK gun store because a lot of guns were stolen. The bulletins contained photographs of the potentially suspect vehicle, captured on surveillance video by a nearby business contemporaneously to the burglary, and he thought it was a white 1990s model Toyota Corolla. On February 28, 2018, dispatch received a call about a man selling from his white vehicle firearms the caller believed were stolen. The caller described the clothing, build, and hair of the suspect, gave the suspect’s precise location, and stated that the suspect “went by Meat” and his first name might be “Mike.” The caller indicated that they would call back with the suspect vehicle’s license plate number after checking the photograph they had taken of it on their phone. The caller did, in fact, call dispatch a second time to relay that information. The caller wished to remain anonymous, but provided his or her phone number so they could be contacted if needed. The caller has not been identified. The police ran the license plate number given by the caller, and “it came back to a 1993 white Toyota Corolla” that was registered to Appellant. Officer Petroczky arrived at the location specified by the caller in less than ten minutes and observed that Appellant matched the description given by the caller. The officer also “immediately recognized [Appellant’s] vehicle as the one from the [intel] bulletin”—all the details matched, including the black molding strip along the side of the car, the damage around the side mirror, the tinted windows, and the unique after-market rims. Officer Petroczky then drove around in his unmarked vehicle for about thirty minutes, making several passes at the suspect 2 vehicle and watching the people around it. 1 The officer described his observations as follows: [Appellant] was holding something at his chest level but just on the other side of the Toyota Corolla. So I could not see exactly what was in his hand. There was another subject . . . . He was standing next to Mr. Knox and looking at whatever it was that Mr. Knox was holding in his hand at chest level. The mannerisms that they were using or displaying suggested that what they were doing was secretive, guarded, hidden behind the car and hidden close to the chest. From my training and experience I thought that there was something illegal about their actions. The behavior displayed by the other male was of significant excitement. In other words, it wasn’t kind of a nonchalant hand-to-hand transaction which I’ve experienced with most street level narcotics deals but that there might be something else, I guess, more exciting . . . about what he was looking at. Based on all of the information that I had at the time, that solidified my suspicion that he might be showing him a firearm. Based on the totality of the circumstances, two or three unmarked police vehicles pulled into the parking lot, and the officers exited with their guns drawn and pointed at the suspects. Appellant, who was vacuuming his car at the time, put his hands up and lay down on the ground. Petroczky secured Appellant’s hands behind his back and patted him down for officer safety. The officer explained that there was a “significant concern” for officer safety given the reason for the stop and the number and type of firearms that had been stolen during the burglary. Additionally, the police had checked Appellant’s criminal background and although Petroczky could not remember the details at the 1 Petroczky explained that at least ten law enforcement units were involved and strategically placed, some of which also drove by the scene, and the sheriff’s helicopter was giving aerial description of what was happening. 3 suppression hearing, he recalled that Appellant had a significant history that involved guns or violence. During the pat-down, the officer found a pistol in a holster in Appellant’s waistband. A subsequent search of Appellant’s car led to the discovery of firearms inside a bag that was lying on Appellant’s trunk. The majority of those firearms were identified as having been stolen from AD-TEK during the burglary. Defense counsel conceded that it was “a very suspicious situation,” but argued that the police lacked probable cause to make a de facto arrest because the private sale of guns is not illegal. The parties disagreed about whether the caller was a citizen informant or an anonymous tipster. The State contended that based on the totality of the circumstances, the police certainly had reasonable suspicion to conduct a stop and pat-down and even had probable cause for an arrest. The trial court denied the motion to suppress as follows: All right. I don’t think it’s a very close call. I’m going to deny the motion to suppress and make some findings. First, I do find that the caller was a citizen informant. There is no suggestion that this caller was working off charges for law enforcement or was being paid for information. It was simply a citizen calling in. They had the phone number for the citizen. The citizen could have been easily identified. There was certainly sufficient information from the citizen informant to make an arrest in this case. The officer independently had seen a photo of the suspect vehicle from the burglary, had identified this vehicle at the scene with unique features as being the same vehicle from the burglary that just occurred four days before; observed, himself, suspicious activity; was aware that the registered owner had a significant arrest history; and quickly upon the defendant being taken down found a firearm on his person. I disagree with the defense contention that detention has to involve probable cause. There’s a myriad of cases that find that detention at gunpoint can occur based upon reasonable suspicion, particularly under circumstances 4 where there’s every reason to believe firearms are present, which turned out to be the case. It’s not even close that there was reasonable grounds for suspicion under these facts. I find there was actually probable cause. I think there was sufficient probable cause to make an arrest and do the search at that point in time so I deny the motion to suppress. In a subsequent written order denying the motion to suppress, the trial court made similar findings and concluded that based on the totality of the officer’s independent observations, the information provided by the citizen informant, and the officer’s confirmation of that information, the police had probable cause—more than the reasonable suspicion required—to stop, detain, and then arrest Appellant. The jury found Appellant guilty as charged, and the trial court adjudicated him guilty and sentenced him to twelve years of imprisonment with a three-year mandatory minimum term for actually possessing a firearm. This appeal followed. ANALYSIS A trial court’s ruling on a motion to suppress is presumed correct, and we must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court’s ruling. State v. Dickey, 203 So. 3d 958, 961 (Fla. 1st DCA 2016). It is for the trial court to make credibility determinations and to weigh the evidence. Id. We defer to the trial court’s findings of fact if supported by competent, substantial evidence, but review de novo the application of the law to those facts. Id. An arrest must be supported by probable cause, whereas an investigatory stop requires reasonable suspicion of a crime. Id. On appeal, Appellant does not dispute that the police conducted an investigatory stop when they initially detained him at gunpoint. Indeed, as we have explained, “an investigatory stop [is not] automatically converted into an arrest when an officer draws a weapon and directs the suspect to lie on the ground; instead, ‘the police are entitled to take such action as is reasonable 5 under the circumstances.’” Young v. State, 270 So. 3d 471, 474 (Fla. 1st DCA 2019) (quoting Carroll v. State, 636 So. 2d 1316, 1318 (Fla. 1994), where the Court found that the officer was justified in being concerned and was entitled to search for weapons during the investigatory stop because he was questioning a person who might have recently committed a murder); see also Saturnino-Boudet v. State, 682 So. 2d 188, 191 (Fla. 3d DCA 1996) (“[T]he officer may detain the individual even at gunpoint and/or by handcuffs for the officer’s safety without converting the Terry[ 2] stop into a formal arrest.”). As such, the question before us is whether the police had reasonable suspicion to stop Appellant. “[T]o 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”; “‘[m]ere suspicion is not enough to support a [Terry] stop.’” Tobin v. State, 146 So. 3d 159, 161 (Fla. 1st DCA 2014) (quoting Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). In deciding whether an officer had a well-founded suspicion of criminal activity, the trial court must consider the totality of the circumstances. Partlow v. State, 134 So. 3d 1027, 1030 (Fla. 1st DCA 2013); see also Weakley v. State, 273 So. 3d 283, 286 (Fla. 1st DCA 2019) (citing D.C. v. Wesby, 138 S. Ct. 577, 588 (2018), that the totality of the circumstances test does not allow the viewing of each fact in isolation and “the whole is often greater than the sum of its parts”). Factors that may be considered in making that determination include the time of day, the suspect’s appearance and behavior, and anything unusual in the situation as interpreted in light of the officer’s knowledge and experience. Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006); see also Weakley, 273 So. 3d at 285 (stating the same). “Reasonable suspicion . . . is dependent upon both the content of information possessed by police and its degree of reliability.” Tobin, 146 So. 3d at 161–62 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). “In analyzing whether third-party information 2 Terry v. Ohio, 392 U.S. 1 (1968). 6 can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided.” Id. at 162 (quoting Berry v. State, 86 So. 3d 595, 598 (Fla. 1st DCA 2012)). “The less reliable the tip, the more independent corroboration will be required to establish reasonable suspicion.” Id. On the one end of the spectrum of reliability is an anonymous tip that has relatively low reliability because it rarely demonstrates the informant’s basis of knowledge or veracity; thus, it must be sufficiently corroborated by the officer to constitute reasonable suspicion. Id.; see also Weakley, 273 So. 3d at 286 (citing Baptiste v. State, 995 So. 2d 285, 296–97 (Fla. 2008), that an anonymous tip alone generally does not provide reasonable suspicion for a stop, but could do so under a totality of the circumstances analysis, such as when an officer makes subsequent observations of a suspect who matches the description given). On the other end of the spectrum is a tip from a citizen informant that is presumed highly reliable because the informant’s motivation is the promotion of justice and public safety and the informant gives their name and can be held accountable; therefore, it is sufficient by itself to provide police with reasonable suspicion. Tobin, 146 So. 3d at 162. Here, Appellant contends that the trial court’s finding that the caller was a citizen informant is not supported by competent, substantial evidence because the caller was anonymous. However, an informant is not anonymous and his or her name need not be known so long as his or her identity is readily ascertainable. State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001) (citing in support Lachs v. State, 366 So. 2d 1223 (Fla. 4th DCA 1979), as “holding that a tipster, ‘fully identified by occupation and address,’ was ‘entitled to as much credibility as . . . a paid informer or the victims themselves’”); see also Hadley v. State, 43 So. 3d 113, 115 (Fla. 3d DCA 2010) (“Although citizen informants may, too, be anonymous, their identity is readily discoverable and their motivation is one of concern for the safety of their fellow citizens and not pecuniary gain.”); Carattini v. State, 774 So. 2d 927, 929 (Fla. 5th DCA 2001) (“Although the identity of the informant was never ascertained, that fact is not dispositive.”). As the trial court found in this case, the caller provided their phone number in case the police needed to contact them, and there is no indication that the caller was motivated by anything other than a concern for public safety. Cf. 7 A.P. v. State, 182 So. 3d 915, 916 (Fla. 5th DCA 2016) (“This tip was truly anonymous as the caller did not provide a name, phone number, or any other type of identification.”). Moreover, even if, as Appellant argues, the caller could be characterized as an anonymous tipster, there would be sufficient information to support a reasonable, articulable suspicion that a crime had been committed. Appellant misplaces his reliance on J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d sub nom. Florida v. J.L., 529 U.S. 266 (2000), where the Court held that an anonymous tip claiming that a person is carrying a firearm, without more, is insufficient to justify a stop and frisk. Unlike in J.L., here the police did not rely solely on an anonymous report concerning the possession of a firearm; instead, before stopping Appellant, the police conducted an independent investigation, which included making independent observations of suspicious behavior and corroborating the details provided by the citizen. Specifically, a citizen reported to dispatch that a man was selling firearms from a white vehicle at a particular location that they believed were stolen. The police ran the license plate number provided by the citizen and learned it was registered to Appellant, whose first name is Michael, which was consistent with the citizen’s report that the suspect’s first name might be Mike. Within ten minutes of the citizen’s report, Officer Petroczky responded to the specified location, where he “immediately recognized” the white vehicle based on its unique features as the one suspected in the burglary of a local gun store four days earlier, during which numerous firearms were stolen. One of the two men standing by the car—Appellant—matched the caller’s description of the person suspected of selling stolen firearms. During his thirty-minute surveillance, Petroczky observed that Appellant was holding something close to his chest and the other man was looking at it with “significant excitement.” The men’s mannerisms were secretive and guarded, and based on his training and experience, Petroczky believed there was something illegal about their actions. In the meantime, the police checked Appellant’s criminal history, which was significant and included guns or violence. Appellant emphasizes on appeal, as he did in the trial court, that neither the informant nor the police observed him engage in 8 illegal activity. As we recently explained, however, “conduct does not need to be illegal (or acted upon if so) to be suspicious”; “the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” Weakley, 273 So. 3d at 286 (second quotation from Wesby, 138 S. Ct. at 588) (concluding that the police had reasonable suspicion to stop the appellant where a 911 caller had reported that a suspicious person on a motorcycle was walking around a foreclosed home nearby a five-mobile-home area at the end of a dirt road at nighttime and was possibly committing a burglary, but the caller could not provide details and refused to disclose his or her identity, and when the police arrived within minutes and were driving down the dirt road, the appellant was heading in the opposite direction on a motorcycle and aggressively accelerated and veered into the shoulder to try to flee past them). Considering the totality of the circumstances, and interpreting the evidence in the manner most favorable to sustaining the trial court’s ruling, we conclude that the police had reasonable suspicion to stop Appellant. CONCLUSION Therefore, we hold that the trial court properly denied the motion to suppress and affirm Appellant’s conviction and sentence. AFFIRMED. ROWE and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant. 9 Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 10