Sousa v. State ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DALTON CHAD SOUSA, )
)
Appellant, )
)
v. ) Case No. 2D15-1005
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 1, 2016.
Appeal from the Circuit Court for Collier
County; Frederick R. Hardt, Judge.
Howard L. Dimmig, II, Public Defender, and
Starr L. Brookins, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jeffrey H. Siegal,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
Dalton Sousa pleaded no contest to attempted robbery with a weapon
while wearing a mask and reserved his right to appeal the denial of the dispositive
motion to suppress. Because the officer did not have a well-founded suspicion of
criminal activity justifying the stop, we reverse.
Corporal Booth was the only witness to testify during the evidentiary
hearing on Sousa's motion to suppress. On June 9, 2013, at approximately 5:00 a.m.,
Corporal Booth received a BOLO from dispatch indicating that a robbery1 had occurred
in the area where he was patrolling. While in route to the scene of the crime, Corporal
Booth learned that there were "three suspects with a firearm" and that "[t]hey had fled
towards some apartments." Corporal Booth testified that the entire area consisted of
apartments and that he could not recall which apartments the suspects fled toward. At
some point, dispatch also provided that the suspects were males. Once Corporal Booth
learned that Corporal Tipton had made contact with the victim, he proceeded to search
for the suspects.
Corporal Booth soon observed a small vehicle with three occupants
inside. He explained that it had been a quiet night, that he had not seen any vehicles
on the road for some time, and that this was the first and only vehicle he saw since
receiving the BOLO. As Corporal Booth followed the vehicle, he observed the
passenger in the backseat "bouncing around and at points even appear[ing] to be laying
[sic] down." Because Corporal Booth suspected that the vehicle occupants were
involved in the recent criminal activity, he was looking for a reason to initiate a traffic
stop. As he continued to follow the vehicle, he observed that it was "green, maybe a
blue."
1
Though the crime was described as a robbery, Sousa was actually
charged with attempted robbery.
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After following the vehicle for approximately two miles without observing
any traffic violations or receiving any more information from dispatch, Corporal Booth
conceded that while he did not have much to go on, he needed to stop the vehicle.2
Corporal Booth based his suspicion on "[t]he back passenger bouncing around, laying
[sic] down, three occupants, no other vehicles on the roadway when [he] was in that
specific area where the crime had occurred." After initiating the stop and while walking
toward the vehicle, he received a description of the suspects' vehicle from the Computer
Aided Dispatch (CAD) report; the suspects' vehicle was reported to be red.
The trial court denied Sousa's motion to suppress finding that a short
period of time had passed since the offense, the vehicle was encountered near the
scene of the offense traveling in the opposite direction, the vehicle was small and
occupied by three people, and the BOLO information was reliable because it came from
another officer and from the victim.
Appellate review of a motion to suppress is a mixed
question of law and fact. Bautista v. State, 902 So. 2d 312,
314 (Fla. 2d DCA 2005). Deference is given to the trial
court's factual findings if they are supported by competent
and substantial evidence. Id. (citing Cillo v. State, 849 So.
2d 353, 354 (Fla. 2d DCA 2003)). However, this court has
an "independent obligation to review the ultimate question of
probable cause and reasonable suspicion" under a de novo
standard to make certain law enforcement practices remain
within constitutional parameters. Connor v. State, 803 So.
2d 598, 606 (Fla. 2001).
Crawford v. State, 980 So. 2d 521, 523 (Fla. 2d DCA 2007). "[S]everal factors must be
considered in assessing the legality of a stop based on a BOLO: '(1) the length of time
2
Corporal Booth testified that after he activated his lights to initiate the
stop, the driver of the vehicle committed a traffic violation. Because this violation
occurred after the stop had been initiated, it is not relevant to the stop.
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and distance from the offense; (2) route of flight; (3) specificity of the description of the
vehicle and its occupants; and (4) the source of the BOLO information.' " Rivera v.
State, 771 So. 2d 1246, 1247 (Fla. 2d DCA 2000) (quoting Hunter v. State, 660 So. 2d
244, 249 (Fla. 1995)).
Corporal Booth did observe three people in a vehicle near the area where
the crime had recently occurred, but a "vehicle's mere presence near the scene is
insufficient to give rise to a reasonable suspicion that its occupants were connected to
the recent [crime]." Batson v. State, 847 So. 2d 1149, 1151 (Fla. 4th DCA 2003).
Further, the BOLO was vague. It provided only that three male suspects with a firearm
fled toward apartments in an area that consisted entirely of apartments; there was no
indication that the suspects fled in a vehicle rather than on foot or by other means. See
Sumlin v. State, 433 So. 2d 1303, 1304 (Fla. 2d DCA 1983) ("A vague description
simply will not justify a law enforcement officer in stopping every individual or vehicle
which might possibly meet that description."); see also State v. Jemison, 171 So. 3d
808, 811 (Fla. 4th DCA 2015) ("A BOLO providing a 'bare bones' description of a
vehicle, without more, is insufficient to create the reasonable suspicion necessary for a
traffic stop.").
Additionally, the trial court's reliance on the vehicle description was
misplaced because Corporal Booth did not receive a vehicle description or learn that the
suspects even fled in a vehicle, for that matter, until after he initiated the stop. The trial
court acknowledged that Corporal Booth "had the wrong color of the vehicle" but found
that Corporal Booth was correct that the vehicle "was small and occupied by three
persons." However, Corporal Booth never testified that the CAD report indicated that
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the suspects' vehicle was small; he testified only that it was reported to be "older,"
"beat-up," and "red."3
Despite a "bare bones" BOLO description, an officer's suspicions of the
occupants in a vehicle may become reasonable if the occupants match the BOLO
description and "there are additional supporting factors." Jemison, 171 So. 3d at 812.
But no such factors exist in this case. Cf. id. at 812-13 (holding that while the BOLO
only provided a vehicle description and did not provide the number of occupants or the
direction of travel, the officer had reasonable suspicion to stop the defendant's vehicle
upon encountering the vehicle along the only possible escape route and observing the
defendant "circling a neighborhood, cutting in front of a vehicle to make a turn, and then
driving evasively"). Though Corporal Booth testified that the backseat passenger in the
vehicle was acting suspiciously by "bouncing around" and "laying [sic] down," this
activity is equally consistent with noncriminal activity. Cf. Carter v. State, 454 So. 2d
739, 740, 742 (Fla. 2d DCA 1984) (holding that the activities of the driver in the lawfully
parked vehicle—looking to the front and back of the vehicle and bending toward the
middle of the front seat—were "at least equally consistent with noncriminal activity").
Corporal Booth had nothing more than a mere or bare suspicion that the individuals in
the vehicle were involved in the recent crime, which will not suffice. See Taylor v. State,
695 So. 2d 503, 506 (Fla. 2d DCA 1997). Because Corporal Booth's suspicion was not
well founded, the motion to suppress should have been granted. See Nealy v. State,
3
We also note that although the trial court found the BOLO information to
be reliable because it came from the victim and another officer, Corporal Booth testified
only that he obtained the BOLO information from dispatch. There was no testimony as
to where that information originated.
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652 So. 2d 1175, 1176-77 (Fla. 2d DCA 1995). Accordingly, we reverse the denial of
the motion to suppress, reverse the convictions and sentences, and remand for
discharge. See id. at 1177.
Reversed and remanded for discharge.
KELLY and MORRIS, JJ., Concur.
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