State v. Kelly

790 So. 2d 563, 2001 WL 830454
CourtDistrict Court of Appeal of Florida
DecidedJuly 25, 2001
Docket3D00-1599
StatusPublished
Cited by2 cases

This text of 790 So. 2d 563 (State v. Kelly) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 790 So. 2d 563, 2001 WL 830454 (Fla. Ct. App. 2001).

Opinion

790 So.2d 563 (2001)

STATE of Florida, Appellant,
v.
Kirk KELLY, Winston George Hylton, and Adolph Washington Folkes, Appellees.

No. 3D00-1599.

District Court of Appeal of Florida, Third District.

July 25, 2001.

Robert A. Butterworth, Attorney General and Douglas J. Glaid, Assistant Attorney General, for appellant.

Joel Defabio, Coral Gables; Peter D. Aiken (Ft.Lauderdale), for appellee.

Before GREEN, SORONDO, and RAMIREZ, JJ.

GREEN, J.

The State of Florida appeals an order suppressing evidence and statements obtained *564 as a result of a stop of the appellees' vehicle based upon information provided to police by an anonymous tipster. The trial court concluded that based upon the recent decision of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the police officers' stop of the appellees' vehicle predicated upon the anonymous tip was unjustified. We completely agree and affirm the order under review.

The facts adduced at the suppression hearing below are simple and uncontradicted. Officer Luis Pelosi of the Miami-Dade Police Department testified that he received an anonymous telephone tip that a home invasion robbery was being planned by three black males. The only information provided by the tipster was an address where three armed black males would be getting into a gray Acura with tinted windows. Pelosi received two additional calls from the same tipster, each repeating the same information. Thereafter, Pelosi notified the robbery division. At trial, Officer Pelosi admitted that the anonymous tipster did not (1) state the source of his/her information; (2) provide the names of the men or a description of their clothing; nor (3) provide the name of the victim(s) and/or the location of the intended crime.

Detective Joseph Nagy of the robbery division testified that he received the information regarding the tip from his supervisor. Based upon this tip, Detective Nagy immediately set up a police surveillance of the address provided. After a few minutes, three black men were seen exiting the home and getting into a dark-colored Acura parked in the driveway. The men did not have any unusual bulges in their clothing, nor did the police note any unlawful activity.

The detectives watched the men drive away in the Acura and followed them in unmarked cars. After they had traveled less than one-half block, the police stopped the Acura. The stop was not based upon the commission of any traffic infraction or criminal activity, but was grounded solely upon the anonymous tip. The car was searched and firearms were found. The three men were subsequently arrested for carrying concealed firearms and for conspiracy to commit an armed home invasion robbery.

The appellees filed a motion to suppress the evidence obtained as a result of the stop. Following an evidentiary hearing, the trial court granted the motion in accordance with the United States Supreme Court's decision of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The trial court made the following findings which were completely supported by the record evidence:

* * * *
4. The anonymous tipster provided no indication or any basis to allege or believe that this was inside information, there were no names, no addresses of the potential robbery site, no physical description or clothing [description] of the perceived assailants or perceived perpetrators.
5. There are no predictive factors in the record before this Court which would bring this case under the holding of Alabama v. White, such as a specific description of the defendants, specific time and specific hotel or location where the defendants were to be driving.
6. Therefore, the officers' stop can only be predicated upon the anonymous tip and there being no independent corroboration or proof of any criminal activity other than that anonymous tip, and the current status of the case law, this court is persuaded that defendants' Motion to Suppress should be granted.

*565 * * * *

The state filed the instant appeal and argues that this case is distinguishable from J.L. We disagree.

In J.L., like the instant case, the police received a vague anonymous tip about the possibility of future criminal activity which the police were unable to sufficiently corroborate. Acting on no more than this tip, the police approached J.L. who was wearing a plaid shirt at the specified bus stop. They frisked him and discovered a gun. Prior to that time, the officers had not seen a firearm and J.L. and made no threatening or furtive movements. The trial court granted J.L.'s motion to suppress and this court reversed. State v. J.L., 689 So.2d 1116 (Fla. 3d DCA 1997). The Florida Supreme Court quashed this court's decision,[1] and the United States Supreme Court affirmed.[2]

The United States Supreme Court found that the contents of the anonymous call had provided no predictive information and therefore left the police without any means to test the informant's knowledge and/or credibility. Since the tip lacked the moderate indicia of reliability necessary to constitutionally justify an investigative stop, the Court held that this anonymous tip, without independent police corroboration, was insufficient to justify a Terry[3] investigatory stop. Id.

Similarly, in this case, the tipster provided no predictive information such as the time and place of the proposed home invasion robbery, which would have permitted the police to test the tipster's knowledge and/or credibility. Indeed, the only information that the police were able to corroborate in this case from the tip was that three black males got into an Acura Legend at a specified address. These innocent details, without more, are insufficient to justify a Terry stop of these individuals. Indeed, with regards to innocent detail tips, the Florida Supreme Court in J.L. instructed that "the independent police investigation would have to uncover something more than just a verification of innocent details." The police "must observe additional suspicious circumstances as a result of the independent investigation." See J.L. v. State, 727 So.2d at 207 citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301.

The state argues that the tip in this case is more analogous to the tip contained in White and in Campuzano v. State, 771 So.2d 1238 (Fla. 4th DCA 2000). The state is wrong and its reliance upon these decisions is simply misplaced.

In White, the anonymous tipster was in a position to tell the police that a named female individual would be leaving a particular apartment at a particular time in a specified vehicle and that she would be headed for a specified destination (i.e., Dobey's Motel) carrying an ounce of cocaine in a brown attache case. The police immediately proceeded to the specified apartment building in the named complex and observed a woman leave that building and get into the described car. The police followed the vehicle as it drove along the most direct route to Dobey's Motel before effectuating a stop of the vehicle.

Not every detail of the tip in White

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Collins v. State
115 So. 3d 1040 (District Court of Appeal of Florida, 2013)
K.W. v. State
906 So. 2d 383 (District Court of Appeal of Florida, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 563, 2001 WL 830454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-fladistctapp-2001.