Pedro Jose Domingues v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

PEDRO JOSE DOMINGUES,
Appellant,

v.

STATE OF FLORIDA,
Appellee.

No. 4D13-1096

[March 25, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles Burton, Judge; L.T. Case No. 2007CF010216AMB.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges the revocation of his probation based upon a
finding that he was arrested for DUI. He contends that the court erred in
denying his motion to suppress, because no reasonable suspicion to stop
appellant arose from a report of a domestic disturbance call. We agree
that the call did not provide reasonable suspicion and reverse.

The state charged appellant with a violation of his probation based
upon his arrest for DUI. He moved to suppress the evidence against him,
claiming that an officer stopped him without reasonable suspicion that he
had committed or was about to commit a crime. At the hearing, a
Greenacres police officer testified that he responded to a “signal 38” call
from a residence in the city. While the officer first stated that the call was
a “domestic-violence-related call,” he later admitted that a “signal 38”
means a domestic disturbance. It does not necessarily include a domestic
battery and could mean a verbal argument. The officer had no information
that an act of domestic violence was occurring.
 Upon his arrival, the officer saw appellant in a vehicle heading away
from the residence. Dispatch advised the officer that appellant had left
the residence in a vehicle of the same color. The officer stopped the vehicle,
directing the appellant to return to the residence. When the officer arrived
at the residence, he talked to appellant’s girlfriend who had called in the
report. He determined that no battery or other crime had occurred.
However, he noticed that appellant had parked “a little crooked,” that he
could smell alcohol on appellant, and that appellant’s speech was slurred.
The officer therefore arrested appellant for DUI.

In denying the motion to suppress, the court concluded that the
girlfriend was a “citizen informant” and that the officer had responded to
a “signal 38” call, the code for a domestic dispute. However, the judge
found that “although [the officer] could not recall any other specifics about
the type of domestic dispute, that is the call frequently used for incidents
of domestic violence.” The judge found that the officer was responding “in
good faith.” After the denial of the motion, appellant reserved his right to
appeal the dispositive motion and then admitted the probation violation.
He was sentenced and this appeal follows.

In reviewing a ruling on a motion to suppress, the appellate court
accords a presumption of correctness to the trial court’s determination of
historical facts but must independently review mixed questions of law and
fact. Connor v. State, 803 So. 2d 598, 605 (Fla. 2001). The appellate court
defers to the trial court’s fact findings if they are supported by competent,
substantial evidence, but reviews legal conclusions de novo. Chaffin v.
State, 121 So. 3d 608, 613 (Fla. 4th DCA 2013).

“[A] police officer may reasonably detain a citizen temporarily if the
officer has a reasonable suspicion that a person has committed, is
committing, or is about to commit a crime.” Popple v. State, 626 So. 2d
185, 186 (Fla. 1993) (citing Terry v. Ohio, 392 U.S. 1 (1968)). The standard
of reasonable suspicion to support a stop is also codified in section
901.151, Florida Statutes (2013), Florida’s Stop and Frisk law. That
statute provides:

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

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 abroad which led the officer to believe that the person had
committed, was committing, or about to commit a criminal
offense.

§ 901.151(2), Fla. Stat. (2013).

Appellant argues that the trial court should have granted his motion to
suppress, because the officer did not have a founded suspicion that he
had committed, was committing or about to commit a crime, as required
by Popple and section 901.151, Florida Statutes (2013). Thus, there was
no basis to justify his stop. The only information relayed to the officer,
upon which the stop was made, was that he was responding to a “signal
38” at a residence and that the male involved had left in a particular
vehicle. As this information did not provide reasonable suspicion that a
crime had been, was being, or was about to be committed, no reasonable
suspicion supported the stop.

We explained what constitutes reasonable suspicion in Felton v. State,
753 So. 2d 640 (Fla. 4th DCA 2000):

A “reasonable suspicion” is such suspicion as would “warrant
a [person] of reasonable caution in the belief that [a stop] was
appropriate.” State v. Evans, 692 So. 2d 216, 218 (Fla. 4th
DCA 1997) (quoting Terry v. Ohio, 392 U.S. at 22, 88 S.Ct.
1868 (1968)); see also Graham v. State, 714 So. 2d 1142, 1143
(Fla. 1st DCA 1998) (“To have a reasonable suspicion (also
referred to as a ‘founded suspicion’), ‘the detaining officers
must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity’ based upon
‘the totality of the circumstances.’”) (quoting United States v.
Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981)).

Id. at 642 (emphasis supplied). The justification for an investigatory stop
need not come from an officer’s own observations—the officer may also rely
upon information provided by others. Id. at 643. Nevertheless, the totality
of the circumstances must provide factual circumstances which, when
interpreted in light of the officer’s knowledge and training, point to the
commission, or incipient commission, of a crime.

Since the officer testified only that he received a “signal 38” call, the
report was one of a domestic disturbance. The officer even admitted that
a “signal 38” does not necessarily include any crime, and nothing in the
dispatch informed him that a crime had occurred at the residence.

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Nothing on the officer’s observation constituted evidence that a crime was
being or going to be committed, as the only observation the officer made
was of appellant driving away from the home. The girlfriend did not report
any battery. Although the trial court found that the “signal 38” call was
frequently made for domestic violence disputes, this was unsupported by
any testimony at the hearing. Nor do we think it would justify a stop, as
the signal could be for both non-criminal as well as criminal incidents.
Without more, an officer could have only a hunch that a crime might have
occurred.

The state cites State v. Hunter, 615 So. 2d 727 (Fla. 5th DCA 1993), in
support, but we find that case distinguishable. There, the police were
dispatched to a 911 “open line” call from a gas station, meaning someone
at the station had called 911, hadn’t spoken, but did not hang up. Id. at
728 n.1. The officers who responded treated it as an emergency, because
it sounded like a robbery. Id. When they arrived, the store clerk was
extremely distraught, crying and shaking. Id. When the officers asked if
two men in a car at a pump were involved, even though the officers did not
know what had gone on, the clerk pointed to one of the men. Id. at 728-
29. At that point the officers stopped the men, and upon a patdown
discovered drugs. Id. at 729.

The trial court granted a motion to suppress, finding that the officers
lacked a reasonable suspicion to stop the men. Id. The Fifth District
reversed, concluding that the officers had sufficient information to form a
reasonable suspicion that a crime had occurred prior to the stop, given the
type of establishment, late evening, open line call which suggested a crime
was in progress, together with the distraught clerk who pointed out the
men involved. Id. at 730. The court noted, as well, the popularity of gas
stations with lone clerks as targets for late night robberies. Id.

Hunter is distinguishable, because the officers first had a suspicion,
before arriving at the scene, that a robbery might have been occurring, and
then, prior to the stop, obtained additional information from the nearly
hysterical store clerk. Given the distress of the victim, the totality of the
circumstances strongly suggested criminal activity had occurred. In
contrast, in this case a domestic disturbance was reported. Even if we
were to equate that with the open 911 call, in Hunter the officers made
additional observations to provide reasonable suspicion of a crime having
been committed. Here, the officer made no other observations which
suggested that a crime had occurred before the officer stopped appellant.

The trial court also referred to the “good faith” of the officers in stopping
appellant and directing him back to the residence. We have no doubt that

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the officer was acting in good faith in an attempt to follow through on the
domestic disturbance report. But that does not translate into a reasonable
suspicion to stop the appellant under Popple or Terry.

We reverse the denial of the motion to suppress and subsequent
revocation of probation. On remand, we direct that appellant be reinstated
to his probation.

Reversed and remanded.

CIKLIN and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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