STATE V. LENNON

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STATE V. LENNON

State: Florida

Court: Florida Third District Court

Docket No: 06-2532

Case Date: 07/05/2007

Preview:Third District Court of Appeal
State of Florida, January Term, A.D., 2007
Opinion filed July 5, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-2532
Lower Tribunal No. 05-26266

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The State of Florida,
Appellant, vs.

William R. Lennon,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Leon R. Firtel, Judge. Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellant. Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender and Jacqueline Delgado and Kristen E. Mueller, Certified Legal Interns, for appellee.

Before GREEN, SHEPHERD, and LAGOA, JJ. LAGOA, Judge. The State appeals an order granting defendant William R. Lennon's ("Lennon") motion to suppress physical evidence and statements. Because the

police officer had reasonable suspicion to make an investigatory stop and because Lennon lacked standing to challenge the seizure of the stolen jet ski and trailer, we reverse the suppression order. I. FACTUAL AND PROCEDURAL HISTORY Lennon was charged with one count of grand theft in the third degree involving a jet ski and trailer. Lennon filed a motion to suppress contending that because there was no reasonable suspicion to detain him and conduct an investigatory stop, all physical evidence and statements obtained from the investigatory stop should be suppressed. At the hearing on Lennon's motion to suppress, Officer Castaneda testified on behalf of the State. Castaneda testified that at 9:05 p.m. on August 16, 2005, 911 received information that two men were selling a jet ski and a trailer on the side of the road at southwest 181st street and 97th avenue for a "very good price." Castaneda testified this activity was illegal pursuant to a Miami-Dade County ordinance prohibiting any vehicles from being parked and displayed for sale on public streets. Officer Castaneda responded in a marked police vehicle to the exact location provided by the tip and saw a van, jet ski, and trailer parked on the side of the public road. Lennon was standing next to the van holding a bicycle when Officer Castaneda parked his vehicle next to the van. As Castaneda approached, Lennon rode five to seven feet away from the scene on his bicycle. At that point, Officer
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Castaneda told Lennon "stop, I need to talk to you." Lennon stopped, and Officer Castaneda asked for his driver's license. After Lennon told Officer Castaneda that the van, jet ski and trailer belonged to him, Castaneda asked Lennon whether he had documentation of ownership, and Lennon responded that he did not have any to give him. Lennon told Castaneda that he owned the jet ski and trailer for a period of six months and then consented to an inspection of the jet ski and trailer. During this time frame, Lennon's co-defendant approached Officer Castaneda and Lennon and admitted that they were selling the jet ski and trailer. Officer Castaneda checked the VIN for the jet ski 1 and after running the VIN number discovered that both the jet ski and trailer had been stolen six days earlier. After determining that the jet ski was stolen, Castaneda approached

another officer at the scene to make contact with the registered owner who lived nearby and obtain a description of the jet ski and trailer. When the second officer confirmed that the registered owner's description matched that of the jet ski and trailer offered for sale by Lennon, he was placed under arrest. Following the hearing on the motion to suppress, the trial court entered a written order finding that Officer Castaneda "did not make any independent observations that were indicative of criminal activity and had no other facts upon which he could articulate a well-founded basis for suspicion of criminal activity." Based upon these findings, the trial court concluded that Officer Castaneda "did
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Castaneda testified that the VIN for the jet ski was in plain view.
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not have reasonable suspicion to detain Lennon" and granted the motion to suppress "all of the evidence, including the jet ski, trailer, statements made by Lennon, and the officer's identification" of Lennon. II. STANDARD OF REVIEW In reviewing a trial court's ruling on a motion to suppress, we must affirm a trial court's factual findings if supported by competent, substantial evidence. Hicks v. State, 929 So. 2d 13, 15 (Fla. 2d DCA 2006)(quoting State v. D.D.D., 908 So. 2d 1180, 1181 (Fla. 2d DCA 2005)). However, application of the law to those facts and any legal conclusions are reviewed de novo. Id. III. ANALYSIS An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). "`Reasonable suspicion' is a less demanding standard than that for

probable cause, and `considerably less than proof of wrongdoing by preponderance of the evidence.'" State v. Gonzalez, 682 So. 2d 1168, 1170 (Fla. 3d DCA 1996). The standards enunciated in Terry were codified in Florida's Stop and Frisk Law. Section 901.151(2), Fla. Stat. (2006), provides, in relevant part: 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, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained
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and the circumstances surrounding the person's presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense. An officer, therefore, may detain a person in order to determine identity and circumstance when that officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Gonzalez, 682 So. 2d at 1170 (Fla. 3d DCA 1996). In determining whether a police officer possesses a reasonable suspicion to justify an investigatory stop, the court must consider the totality of the circumstances viewed in light of a police officer's experience and background. See Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999); Brown v. State, 592 So. 2d 1237, 1238 (Fla. 1st DCA 1992); Moore v. State, 561 So. 2d 625, 626 (Fla. 1st DCA 1990). Some of the factors a police officer may evaluate to reasonably suggest the possibility, existence, or imminence of criminal activity are: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge. To this list may be added, the factor of flight. Hernandez, 784 So. 2d at 1126 (quoting State v. Bell, 382 So. 2d 119 (Fla. 3d DCA 1980)). Although flight alone is not sufficient to create reasonable

suspicion, "flight can be considered when there are other suspicious circumstances." Hernandez, 784 So. 2d at 1127. Indeed, "flight at the sight of an
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approaching police officer is a suspicious circumstance which, when added to other suspicious circumstances, may justify the belief that the defendant was engaged in criminal activity" warranting an investigatory stop. Id. (emphasis in original). Here, under the totality of the circumstances, we find that Officer Castaneda had reasonable suspicion to lawfully detain Lennon. Once Officer Castaneda received the information from the dispatcher that two men were attempting to sell a jet ski and trailer on a public road, he proceeded immediately to the detailed location. Upon arriving at the specific location, Castaneda observed Lennon

standing next to a van, jet ski, and trailer, all of which were parked on the side of a public road, at night, in a location not near the vicinity of water. This observation, along with the tip, indicated to Castaneda a possible violation of a Miami-Dade County ordinance prohibiting the display of any vehicles for sale on a public street. Additionally, when Lennon saw Officer Castaneda park his car, he fled on a bicycle. In light of the already suspicious circumstances in this case

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