Cresswell v. State

564 So. 2d 480, 1990 WL 62035
CourtSupreme Court of Florida
DecidedMay 10, 1990
Docket72494
StatusPublished
Cited by76 cases

This text of 564 So. 2d 480 (Cresswell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cresswell v. State, 564 So. 2d 480, 1990 WL 62035 (Fla. 1990).

Opinion

564 So.2d 480 (1990)

Travis Harrison CRESSWELL, Petitioner,
v.
STATE of Florida, Respondent.

No. 72494.

Supreme Court of Florida.

May 10, 1990.
Rehearing Denied August 21, 1990.

Alan E. Weinstein and Richard J. Preira of the Law Offices of Weinstein & Preira, Miami Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondent.

EHRLICH, Chief Justice.

We have for review Cresswell v. State, 524 So.2d 685, 686 (Fla. 5th DCA 1988), in which the following question was certified to this Court as one of great public importance:

MAY A PROFILE OF SIMILARITIES OF DRUG COURIERS, WHICH IS DEVELOPED BY A LAW ENFORCEMENT OFFICER AND WHICH, IN LIGHT OF HIS EXPERIENCE, SUGGESTS THE LIKELIHOOD OF DRUG TRAFFICKING, BE RELIED UPON BY HIM TO FORM AN ARTICULABLE OR FOUNDED SUSPICION WHICH WILL *481 JUSTIFY A BRIEF INVESTIGATORY DETENTION AFTER THE CONCLUSION OF A LEGITIMATE TRAFFIC STOP ON HIGHWAYS KNOWN TO THE OFFICER TO BE USED FOR THE TRANSPORT OF DRUGS?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. So long as the profile describes circumstances which would reasonably indicate to a law enforcement officer the existence of reasonable suspicion, we answer the certified question in the affirmative. While the profile in this case does not meet this requirement, the circumstances actually relied upon by the officer to detain Cresswell did indicate reasonable suspicious. We therefore approve the decision of the district court.

On March 27, 1985, the petitioner, Travis Cresswell, was travelling north on Interstate 95 in Volusia County. At 1:55 p.m., he was stopped by then Florida Highway Patrol Trooper Vogel for "following too closely," a traffic law violation. At that time, Trooper Vogel made the following observations:

1. Cresswell was very nervous;
2. Cresswell was travelling north on I-95, a known drug corridor;
3. the vehicle was a full-sized automobile with a large trunk;
4. Cresswell was alone in the vehicle;
5. Cresswell had a Massachusetts driver's license but the car had Maine license plates and registration and also New York state insurance and inspection stickers;
6. the car was registered to someone else;
7. there was a steering wheel lock on the floor beneath the driver's seat;
8. there were items on the back seat that were normally found in a trunk (i.e., an air pump, a tow rope, and tire cleaning material), as well as a suit bag;
9. the ignition key was separate from the other keys;
10. there was a CB radio in the car.

Because some of these observations matched his personally developed drug courier profile,[1] Trooper Vogel decided to detain Cresswell in order to further investigate. Trooper Vogel issued Cresswell a warning for the traffic infraction, but retained Cresswell's driver's license and requested that he open the trunk. When Cresswell replied that he did not have the key, Vogel radioed for a narcotics dog. At 2:05 p.m., Cresswell refused to sign a consent form for a search of the trunk, and Vogel indicated that he was not free to leave. The narcotics dog arrived approximately forty to forty-five minutes later and alerted on Cresswell's trunk. The trunk was opened, marijuana was found, and Cresswell was arrested.

The trial court denied Cresswell's motion to suppress the marijuana. On appeal, the Fifth District Court of Appeal affirmed the trial court's decision, without discussion, and certified the question to this Court for resolution.

The initial stop was valid because a law enforcement officer is clearly entitled to stop a vehicle for a traffic violation. See Hansbrough v. State, 509 So.2d 1081, 1084 (Fla. 1987). However, the stop must last no longer than the time it takes to write the traffic citation. State v. Anderson, 479 So.2d 816, 818 (Fla. 4th DCA 1985). In this case, Cresswell was detained for approximately forty-five minutes, the time necessary to obtain a narcotics dog. To justify such a detention, an officer must have a reasonable suspicion based on articulable facts that criminal activity "may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Reasonable suspicion is something less than probable cause, but more than an "inchoate and *482 unparticularized suspicion or `hunch.'" Id. at 27, 88 S.Ct. at 1883.

In determining whether an officer had reasonable suspicion in any given case,

the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
... .
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981).

Recently in State v. Johnson, 561 So.2d 1139 (Fla. 1990), this Court considered another investigatory stop and detention by Trooper Vogel pursuant to his "profile." In that case, this Court stated that "a `profile' ... is permissible precisely to the degree that it reasonably describes behavior likely to indicate crime." Id., at 1142. This Court found that "there was nothing at all unusual or out of the ordinary about the conduct that constituted Trooper Vogel's `profile,'" id., at 1142-43, and therefore that profile alone could not justify the stop in that case. As it related to the facts of that case, this Court answered a question similar to that certified in this case in the negative.[2] However, if a profile describes circumstances which would reasonably indicate to a law enforcement officer the existence of criminal activity, that profile could validly be relied upon.

In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989), the United States Supreme Court stated that

[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a "profile" does not somehow detract from their evidentiary significance as seen by a trained agent.

Therefore, although the district court phrased its questions in both this case and Johnson in terms of whether an officer's "profile" may be relied upon, the United States Supreme Court has since made it clear that the proper question is not whether a "profile" of any kind may be used to justify an investigatory detention, but whether in each case the officer had reasonable suspicion based on articulable facts.

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Bluebook (online)
564 So. 2d 480, 1990 WL 62035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cresswell-v-state-fla-1990.