Opinion
No. 1D19-524
12-30-2020
Kenneth CALHOUN, Jr., Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
Ray, C.J.
Kenneth Calhoun, Jr. pleaded no contest to possession of a firearm by a convicted felon, resisting an officer without violence, and possession of a controlled substance, while reserving the right to appeal the trial court's denial of his dispositive motion to suppress. He argues on appeal, as he did below, that law enforcement lacked reasonable suspicion of criminal activity to justify the investigative stop that led to the charges against him. Because Calhoun has not met his burden to show reversible error, we affirm.
Background
Two deputies with the Escambia County Sheriff's Office responded to a 911 call from a convenience store clerk who reported a possible drug deal taking place at the car wash behind his store. The clerk provided his name and phone number and asked the operator if there were any officers nearby; he said he "wanted to get another one tonight since they already got one here today." The car wash is part of the store's business along with a gas station out front. Just before 5:30 in the morning, he told the 911 operator that a Porsche sports utility vehicle ("SUV") had parked in the last of four car wash stalls located behind the store. A second car then parked in front of the store and while the driver (whom the clerk described as a white female) stayed in the car, the passenger (whom the clerk described as a black male) got out and walked around to meet with the individual in the SUV. The passenger was later identified as Calhoun. The clerk also described what Calhoun was wearing and confirmed that the car and its driver, but not Calhoun, were still in front of his store while the 911 operator sent officers to investigate.
When they arrived at the scene, the deputies saw the SUV in the car wash stall, but no one was washing it and the ground was dry. Calhoun was leaning next to the front passenger window. The deputies parked at a distance and concealed their approach so that Calhoun and the driver of the vehicle would not see them until the deputies were right in front of them. As they walked up to Calhoun, one of the deputies saw a bulge in Calhoun's pocket. Calhoun kept putting his hand over it. He appeared nervous and seemed to be looking for a way out. One deputy stopped at the front of the vehicle and stood on the right side of Calhoun, while the other deputy walked behind Calhoun and stood to his left. The female inside the SUV immediately tried to drive away but then stopped as a third deputy pulled up, though that deputy's cruiser did not block the SUV's exit. Calhoun did not try to leave. But as the deputies questioned him about weapons, he appeared increasingly nervous and was looking for a way out while repeatedly patting a bulge in his pocket. At that point, one of the officers could see the shape of a gun in Calhoun's pocket. The deputies told him to put his hands on the hood of the car, which he did, although he moved his hand to his pocket when a deputy tried to pat him down. He also resisted when the deputy tried to put his hand back on the hood, so they handcuffed him. After a limited search of his person, the deputies found a gun in his pocket and a small clear baggie containing Fentanyl.
Both deputies described the location as a high-crime area based on their experience patrolling their assigned districts. One deputy testified about robberies, home invasions, and burglaries within the past year, along with heroin overdoses at many of the convenience stores and a domestic violence call at that particular store. The other deputy testified about drug activity in the area along with ongoing problems with drugs at the same store and loitering at the car wash behind it.
The trial court denied Calhoun's motion to suppress. It reasoned that what began as a consensual encounter turned into an investigative stop when the deputies saw a bulge in Calhoun's pocket, giving them reasonable suspicion to frisk him. Calhoun pleaded no contest to the charges against him and reserved the right to appeal the denial of his motion to suppress, which the State and court agreed was dispositive. This timely appeal follows.
Analysis
"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." McCloud v. State , 208 So. 3d 668, 675 (Fla. 2016) (quoting Rolling v. State , 695 So. 2d 278, 291 (Fla. 1997) ). We defer to the trial court's factual findings if they are supported by competent, substantial evidence, but review its legal conclusions de novo. Rodriguez v. State , 187 So. 3d 841, 845 (Fla. 2015).
"The ultimate standard set forth in the Fourth Amendment is reasonableness." Hilliard v. State , 285 So. 3d 1022, 1024 (Fla. 1st DCA 2019) (quoting Cady v. Dombrowski , 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ). "An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ " State v. Johnson , 208 So. 3d 843, 845 n.2 (Fla. 1st DCA 2017) (alteration in original) (quoting Brigham City v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). "During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked." Popple v. State , 626 So. 2d 185, 186 (Fla. 1993). Under the Fourth Amendment, "a seizure or stop occurs ‘when one's freedom of movement has been restrained, either by physical force or a showing of authority, so that the surrounding circumstances demonstrate a reasonable person would not have felt free to leave.’ " June v. State , 131 So. 3d 2, 7 (Fla. 1st DCA 2012) (quoting Johnson v. State , 610 So. 2d 581, 583 (Fla. 1st DCA 1992) ).
To justify an investigative stop, an officer must have reasonable suspicion that criminal activity has occurred or is about to occur, based on the totality of the circumstances at the time of the stop. C.E.L. v. State , 24 So. 3d 1181, 1186 (Fla. 2009) ; Baptiste v. State , 995 So. 2d 285, 294 (Fla. 2008) (reaffirming that whether an officer's suspicion was reasonable must be measured by what the officer knew before the suspect was seized). Factors that may be considered when determining whether an officer had reasonable suspicion include the time of day, the suspect's behavior, the manner of a vehicle's operation, and anything unusual about the situation based on the officer's experience. Huffman v. State , 937 So. 2d 202, 206 (Fla. 1st DCA 2006). Seemingly innocent behavior can provide the basis for reasonable suspicion:
Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. We said in Reid v. Georgia [448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)], "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot." Indeed, Terry itself involved "a series of acts, each of them perhaps innocent" if viewed separately, "but which taken together warranted further investigation." We noted in Gates , that "innocent behavior will frequently provide the basis for a showing of probable cause," and that "[i]n making a determination of probable cause 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." That principle applies equally well to the reasonable suspicion inquiry.
United States v. Sokolow , 490 U.S. 1, 9–10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations omitted). In fact, "conduct does not need to be illegal (or acted upon if so) to be suspicious." Weakley v. State , 273 So. 3d 283, 286 (Fla. 1st DCA 2019) (observing that in District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 588, 199 L.Ed.2d 453 (2018), the Supreme Court explained that "the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation" and that the "totality-of-the-circumstances test ‘precludes this sort of divide-and-conquer analysis’ ").
"In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided." Tobin v. State , 146 So. 3d 159, 161–62 (Fla. 1st DCA 2014) (quoting Berry v. State , 86 So. 3d 595, 598 (Fla. 1st DCA 2012) ). "A citizen informant ... is presumed highly reliable because his or her ‘motivation in reporting illegality is the promotion of justice and public safety,’ and because the informant gives his or her name to the police and ‘can be held accountable for the accuracy of the information given.’ " Tobin , 146 So. 3d at 162 (quoting State v. DeLuca , 40 So. 3d 120, 124 (Fla. 1st DCA 2010) ). Although a tip from an anonymous informant usually requires corroboration by law enforcement to be considered credible, corroboration is not required when the tip comes from a " ‘citizen-informant,’ whose information is at the high end of the tip-reliability scale." State v. Maynard , 783 So. 2d 226, 229–30 (Fla. 2001).
Turning to the case before us, we note at the outset that we disagree with the trial court's conclusion that Calhoun's interactions with law enforcement began as a consensual encounter. Calhoun was seized, as a matter of Fourth Amendment law, at the moment the uniformed deputies confronted him in the car wash stall. One deputy stood to Calhoun's right while the second deputy walked around behind him and stood to his left. A wall was behind him, the SUV was in front of him, and the deputies immediately asked what was going on and if he had any weapons. For that matter, one of the deputies testified that Calhoun was not free to leave when they made contact with him, and a third deputy pulled up in a cruiser as the others were questioning him. Under these circumstances, no reasonable person would feel free to ignore the deputies’ questions or leave. See State v. Beans , 215 So. 3d 172, 174–75 (Fla. 5th DCA 2017) (holding that the defendant's encounter with police was not consensual when he was confronted by two uniformed officers who used accusatory words or questions as they stood on either side of his vehicle while he was in line at a drive-thru).
Even so, the stop was justified because multiple seemingly innocent factors, when analyzed collectively through the lens of Sokolow and Weakley , provided the deputies with reasonable suspicion. The deputies knew that a convenience store clerk called 911 to report what he believed was a drug deal taking place behind his building at 5:30 in the morning. And they knew that it was an area known for criminal activity based on their regular patrols, responding to crimes that included burglaries, home invasions, robberies, drug activity, and loitering. They responded to the 911 call within minutes and saw the SUV still parked in the car wash stall furthest from the street, but no one was washing it and the ground was dry. As one of the deputies approached Calhoun, he saw a bulge in his pocket and Calhoun appeared nervous and seemed to be looking for a way out.
In short, the deputies saw unusual activity at an unusual hour in a location known for ongoing problems with drugs and loitering. See Wallace v. State , 8 So. 3d 492, 494–95 (Fla. 5th DCA 2009) (affirming trial court's denial of a motion to suppress based on an experienced officer's observation of a suspected drug transaction at a convenience store in a high-crime area between the defendant, who parked alongside the store rather than up front before going inside, and another person who pulled up next to his car and waited to meet him); State v. Hunter , 615 So. 2d 727, 730–32 (Fla. 5th DCA 1993) (holding that the sum of all factors gave officers reasonable suspicion of criminal activity even though it was based on a 911 call from a gas station clerk who said she could not talk, officers did not know what was happening, and nothing appeared out of order when they arrived at the scene; other factors included the late hour, location at a target known for robberies, the clerk's clear identification of the suspects, and her demeanor).
Considering these factors and interpreting the evidence in a manner most favorable to sustaining the trial court's ruling as we must do, it was objectively reasonable for the deputies to believe that a crime was occurring or about to occur at the moment they confronted Calhoun. Thus, the stop was lawful. And so too was the pat-down for weapons based on the deputies’ reasonable suspicion that Calhoun was armed with a dangerous weapon. See Richardson v. State , 599 So. 2d 703, 705 (Fla. 1st DCA 1992) ("Examples of types of conduct which may constitute articulable facts to support a reasonable suspicion that a suspect is armed and dangerous include: (1) the suspect's failure to cooperate, (2) the suspect's furtive movements, and (3) a bulge in the suspect's clothing."); see also § 901.151(5), Fla. Stat. (2017).
For these reasons, the trial court properly denied Calhoun's motion to suppress. We therefore affirm his convictions and sentences.
AFFIRMED .
Kelsey, J., concurs; Makar, J., concurs in part and dissents in part with opinion.
Makar, J., concurring in part, dissenting in part.
At some point, the investigatory detention exception to the Fourth Amendment becomes no exception at all; that point has arrived in this case.
Responding to a 5:29 a.m. call from a convenience store clerk, two police officers arrived at a Tom Thumb Food Store in western Pensacola and observed a sport utility vehicle parked in one of the four well-lit, self-service car wash bays with Kenneth Calhoun, Jr., leaning against the vehicle's passenger side window. The officers surreptitiously approached and, without warning, immediately surrounded and seized Calhoun, rendering him unable to leave; the lead officer testified that they intended that Calhoun be immediately detained and unable to leave. Neither officer testified to observing any illegal activity prior to seizing Calhoun; the only articulated grounds for their immediate detention of Calhoun was the phone call and that the neighborhood was regarded as a high-crime area. The caller had observed nothing illegal and merely saw a black man walk from his parked vehicle to the car wash area behind the store where another vehicle was located, which he believed might be "a drug deal going down." The car wash bays, like the convenience store, were open twenty-four hours daily.
The officers immediately began questioning Calhoun, who became increasingly nervous and began repeatedly patting a bulge in his pocket. It was at that point, after Calhoun had already been detained, that one officer observed that the bulge appeared to be consistent with the shape of a gun and conducted a pat down that yielded a weapon and contraband in Calhoun's pocket. The driver of the sport utility vehicle, a friend of Calhoun's who was on her way to work and met him at the car wash to borrow money, was questioned and permitted to leave; no drug charges were brought.
The trial court denied Calhoun's motion to suppress, reasoning that the encounter was consensual and the bulge in Calhoun's pocket provided the reasonable suspicion for the detention, questioning, and search. Calhoun appeals the denial of his motion, asserting that the stop was illegal because the officers lacked a sufficient legal basis establishing a well-founded and reasonable suspicion that Calhoun was or had been engaging in criminal conduct when he was immediately seized and detained.
To begin, the police officers were fully entitled to investigate the convenience store call. They could observe Calhoun for possible criminal behavior; they could approach him to seek to question him about why he was in the car wash area. But they were not entitled to immediately detain him and claim it was a consensual encounter. The United States Supreme Court established long ago that:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. ... The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way .
Florida v. Royer , 460 U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (emphasis added); Popple v. State , 626 So. 2d 185, 187 (Fla. 1993) (An "officer does not need to have a founded suspicion to approach an individual to ask questions.").
The record unequivocally establishes that Calhoun was not free to leave immediately upon the officers’ arrival; the decision to seize Calhoun had already been made and Calhoun's detention was instantaneous with no questions asked or any opportunity given for Calhoun to "go on his way." See Royer , 460 U.S. at 498, 103 S.Ct. 1319 ; see State v. Meachum , 195 So. 3d 417, 419–20 (Fla. 1st DCA 2016) (discussing the circumstances that would indicate an encounter was not consensual, including a blocked exit from the parking lot, use of lights and sirens, drawn weapons, or other "conduct that would communicate to a reasonable person that he was not free to depart"). Abruptly detaining and interrogating a citizen in this manner is the antithesis of a consensual encounter; an immediate, unannounced, and warrantless seizure occurred.
Because the detention was not consensual, the State bears the burden of proving that immediately seizing Calhoun was warranted under the "investigatory detention" exception to the Fourth Amendment. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Popple , 626 So. 2d at 187. In conformity with United States Supreme Court precedent, our supreme court has made clear that an officer "cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity ." Popple , 626 So. 2d. at 187 (emphasis added). For an investigatory detention to be valid, a police officer must have "a reasonable suspicion that a person has committed, is committing, or is about to commit a crime . In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop ." Id. at 186 (internal citation omitted) (emphasis added).
The supreme court cited section 901.151(2), Florida Statutes, which states: "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 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." § 901.151(2), Fla. Stat.
The immediate detention of Calhoun in this case falls below the highlighted constitutional standards. Quantitatively and qualitatively, the information available to the officers at the time of the seizure was meager and did not establish that Calhoun had committed or was about to commit a crime, thereby subjecting him to immediate detention. Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ("Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,’ United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion."). The police officers had minimal information to act upon, admitting there was nothing to rely on when they arrived other than the phone call regarding "a suspicious vehicle and potential drug activity." The only information the officers had was what was relayed to them from the phone call, which was that "a black male arrived in a car in front of the store and had walked over to a Porsche that was parked in the car wash and it was possible drug activity." ("Q: Okay. And that's all the information you had? A: That's all the information I had."). Neither the caller nor the officers observed any illegal activity prior to the seizure. Nor had the caller provided anything more than a generalized concern that a drug deal might be in the works, observing no conduct consistent with criminality—such as a hand-to-hand transaction exchanging money or baggies or smells of suspicious odors; nor did the officers observe such conduct. ("Q: Okay. Basically, you didn't observe Mr. Calhoun or the driver of the SUV doing anything illegal when you approached; correct? A: No."). As has been repeatedly said, both by this Court and the United States Supreme Court, the quantum of information the officers possessed from the caller was inadequate to permit detention; instead, the caller's "tip" was not reliable "in its assertion of illegality," and thereby "insufficient to justify the stop." Cooks v. State , 28 So. 3d 147, 150 (Fla. 1st DCA 2010) (quoting Florida v. J.L. , 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ).
The caller mentioned to the operator that "they already got one here today," suggesting a prior arrest or police presence at the convenience store, but the record does not clarify this point; and neither officer testified to knowing of this vague reference in the call.
Moreover, it is not enough that the locale was deemed a "high crime" area because "[m]ere presence in a high crime area does not provide reasonable suspicion for a stop and frisk." Griffin v. State , 150 So. 3d 288, 290 (Fla. 1st DCA 2014). In Griffin , without reason to suspect criminal activity, "an officer approached a man in a high-crime area standing in a driveway and immediately demanded he remove his hand from his pocket. When the man did nothing in response and refused to consent to a search, the officer conducted a weapons pat-down." Id. The officer found contraband in the man's pocket. Id. This Court concluded that the defendant's motion to suppress should have been granted under the circumstances. Id. at 294. Similarly, the call from the convenience store contained no objective or factual information that a crime had occurred or was about to occur; mere supposition that persons in a "high crime" area may be potentially engaging in criminal conduct is legally insufficient under applicable precedent, rendering Calhoun's seizure unlawful. See Leroy v. State , 982 So. 2d 1250, 1253 (Fla. 1st DCA 2008) ; Lester v. State , 754 So. 2d 746, 748 (Fla. 1st DCA 2000) ; Baggett v. State , 531 So. 2d 1028, 1030 (Fla. 1st DCA 1988) (collecting cases). Ironically, the only other incident at the Tom Thumb Food Store was a situation where the person on the premises was questioned and no arrest was made; the officer who responded to that call testified he was aware of only one arrest from the area generally.
Nor is it enough that one officer saw an indeterminate "bulge" of some sort as the officers immediately seized Calhoun. See Kilburn v. State , 297 So. 3d 671, 674 (Fla. 1st DCA 2020) ("[ Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] clearly requires both a reasonable suspicion that criminal activity is afoot and a reasonable suspicion that the subject might be armed in order to do a stop-and-frisk. Without a reasonable suspicion of criminal activity, the officer cannot go further."). No generalized "bulge" exception exists in Fourth Amendment jurisprudence. If officers had not immediately seized Calhoun, decided to surveil him instead, and observed a gun-like "bulge" in his pocket, even that would likely be insufficient for an investigatory detention absent something more that establishes a well-founded and articulable suspicion of criminal activity; that's because carrying a concealed weapon is lawful in Florida. Id. at 676 (holding that the seizure of a citizen solely because of the observed presence of a handgun during a consensual citizen's encounter violates the Fourth Amendment); see J.L. , 529 U.S. at 272–73, 120 S.Ct. 1375 (holding in an anonymous tips case that there is no firearm exception to making a Terry stop). As Judge Roberts noted in Kilburn , one in seven persons over twenty-one in Florida has a concealed weapons permit; the "thought that these millions of people are subject to seizure by law enforcement until their licenses are verified is antithetical to our Fourth Amendment jurisprudence." 297 So. 3d at 676.
As one court has noted, "most men do not carry purses, they, of necessity, carry innocent personal objects in their pants pockets—wallets, money clips, keys, change, credit cards, cell phones, cigarettes, and the like—objects that, given the immutable law of physics that matter occupies space, will create some sort of bulge." Ransome v. State , 373 Md. 99, 816 A.2d 901, 906 (2003). As such, a "large bulge" exception "would allow the police to stop and frisk virtually every man they encounter." Id. ("Gertrude Stein's characterization of the rose does not fit: when judging the facts under the Fourth Amendment Terry rubric, we reject the notion that a bulge is a bulge is a bulge is a bulge, no matter where it is, what it looks like, or the circumstances surrounding its observation.").
Plus, what the officers observed as they approached was merely consistent with the innocent details the caller provided that identified Calhoun in the car wash area. The only additional "information" was a fleeting glimpse of an indeterminate bulge in Calhoun's pants, which played no role in the detention. What officers observed or learned after a citizen's seizure isn't used as a post hoc justification to support the initial seizure itself. Majors v. State , 70 So. 3d 655, 659–60 (Fla. 1st DCA 2011) ("Facts learned only in hindsight should not enter into the evaluation of the reasonableness of a search or seizure."). Courts decide the constitutionality of a search based on information known beforehand, not on information the search produced or that was discovered later. As the United States Supreme Court held in J.L. , the "reasonableness of official suspicion must be measured by what the officers knew before they conducted their search." 529 U.S. at 271, 120 S.Ct. 1375. At the moment of seizure, officers had no information about the presence of a weapon on Calhoun either from the convenience store caller or from the one officer's observation of an indeterminate "bulge" that Calhoun allegedly shielded in the fleeting moments as the seizure occurred. According to the arresting officer, the bulge was first believed to possibly be a gun only after Calhoun had already been detained and rendered prone. ("Q: So you didn't see the outline of what you believed to have been a firearm until you had already told him to put his hands on the hood of the vehicle? A: Yes.").
One officer testified the there was no water on the car wash floor (suggesting loitering or the like), which is a post-detention observation because it could only have been made after the decision to seize Calhoun had occurred when the officers were in or near the bay. Plus, it wasn't mentioned as a basis for the immediate detention, which was limited to only what the caller provided.
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The totality of the circumstances known to the officers at the time of Calhoun's immediate detention falls far short of establishing a "well-founded and articulable suspicion of criminal activity." It also falls short of the quantum of evidence necessary to detain a suspect based on a citizen informant's call under our District's precedents.
For example, in In re R.E. v. State , 536 So. 2d 1125 (Fla. 1st DCA 1988), a citizen informant, Harold Davis, made two calls to the sheriff's department over the course of a week to report what he perceived as drug transactions in a parking lot; he saw items passed between the cars’ occupants, which "suggested to him that a drug transaction had taken place." Id. at 1126. He identified the participants and a partial plate number. Id. After his first call, he later in the week phoned the sheriff's department again and said "[the] distributors are back in action working the area again." Id. The Sheriff's Office sent out a BOLO and soon thereafter the vehicle identified was pulled over based on the informant's tips. Id. As in this case, the officers saw "nothing to arouse suspicion" of criminality of the vehicle's operator or occupants. Id. at 1126–27. Nonetheless, the vehicle and its occupants were immediately seized and a search found marijuana and beer cans (R.E. was a minor). Id. at 1127.
This Court concluded that the circumstances—which were far more detailed than in this case—did not justify an investigatory detention, noting in part that a "citizen's claim of suspicious activity that has a minimal objective basis" must be corroborated by more than the "innocent details of identification" to make the "required showing that the information was sufficiently detailed to single out the suspect." Id. at 1128. Such information does not "create or support a suspicion that crime is afoot, which is essential if a report of generalized, allegedly suspicious activity is to justify a stop." Id. It concluded that the informant's calls, though reliable, were "generalized, allegedly suspicious activity" and that "it is necessary to make the additional showing that the information made it reasonable to suspect that a crime had been, was being, or would be committed." Id . Applied here, it is obvious that the convenience store call—which gave less information than the citizen informant's calls in R.E. —amounted to a generalized and nonactionable suspicion that lacked an objective basis for immediate detention.
Two citizen informant cases, both relying on In re R.E. , came to the same conclusion: Cooks v. State and Majors v. State . In Cooks , a hotel clerk made a 4:00 am report of suspicious activity that a black male, accompanied by three other black males in a maroon four-door vehicle, was trying to open the back door of the hotel. 28 So. 3d at 148. The clerk told them to leave and, fearing for her safety, called the sheriff's office, which issued a dispatch report. Id. A deputy en route to the hotel saw a car matching the report's description. Id. He stopped the car and detained and searched Cooks, who possessed drugs in his jacket. Id. Cooks moved to suppress the evidence, challenging the constitutionality of the investigatory stop, but was unsuccessful. Id. at 149. This Court reversed, concluding that although the hotel clerk was a citizen informant, the information she provided failed to "create a reasonable suspicion that [Cooks] (or anyone else) had committed, was committing, or would commit a crime." Id. at 150. The Court added:
Even if, as the police report states, the hotel clerk was afraid that the men she saw may have been trying to see whether she was alone for purposes of robbing her, the clerk's ‘hunch’ about the men's intention (which apparently was not correct because the men left and no robbery occurred) was not enough to establish a reasonable suspicion that would justify the stop .
Id. (emphasis added). The investigatory detention of Cooks, like that of Calhoun in this case, was impermissible because "the tip was not reliable ‘in its assertion of illegality.’ " Id. (quoting J.L. , 529 U.S. at 272, 120 S.Ct. 1375 ).
Similarly, in Majors , a "bank manager called 911 and, whispering, reported that a customer was ‘acting weird’ and attempting to withdraw $ 17,500." 70 So. 3d at 658. The customer had not made large withdrawals before, but "wanted to make a check payable to the driver of a Nissan that was parked in front of the bank, and the customer kept going back and forth between the Nissan and the bank, acting strangely and having discussions with the people in the Nissan." Id. Officers dispatched to the bank used their vehicles to block the Nissan, which was attempting to back out of a parking space, arresting Majors in the process. Id. In ruling that the investigatory stop of Majors was unjustified, this Court noted that the arresting officer was unable to "articulate in particular and objective terms his reasonable suspicion of criminal activity." Id. at 660. Like the officers who seized Calhoun, the officers in Majors did not see any criminal conduct and "did not suspect any particular crime was occurring when they" seized Majors. Id. Moreover, it was noted that facts that "came to light after the Nissan was stopped" are not considered "in our reasonable suspicion analysis." Id. at 660–61. In considering "all of the circumstances," this Court held that "any suspicion that the people in the Nissan were ... involved in a crime is highly speculative and properly characterized as a hunch." Id. at 661.
The call of the convenience store clerk in this case—like the 911 calls of the hotel clerk in Cooks and the bank manager in Majors , as well as the calls by the citizen informant in In re R.E. —falls short of establishing the basis for an immediate investigatory detention, which is what occurred in this case. The view that the officers supplemented the barebones information that had been relayed to them—for example by observing a non-descript bulge as they seized Calhoun—is belied by the record, which shows that the decision to detain Calhoun was based only on the generalized information (i.e., a hunch) from the convenience store clerk and that Calhoun's seizure was immediate , occurring instantaneously upon the officers’ arrival at the car wash bay.
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To summarize, while I agree that the officer's actions were a "seizure" of Calhoun and that no consensual encounter occurred, I cannot agree that a well-founded and articulable suspicion of criminal activity existed that justified Calhoun's immediate detention and the resulting search.