DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
DOUGLAS DALEY,
Appellee.
No. 4D19-3590
[December 2, 2020]
Nonfinal appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Marina Garcia Wood, Judge; L.T. Case No. 19-
1325 CF10A.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellee.
ON APPELLEE’S MOTION FOR REHEARING
PER CURIAM.
Appellee’s motion for rehearing is denied.
LEVINE, C.J., concurs.
FORST, J., concurs specially with opinion.
GROSS, J., dissents with opinion.
FORST, J., specially concurring.
I join in denying Appellee Douglas Daley’s motion for rehearing of the
Court’s opinion that reversed the trial court’s order granting Daley’s
motion to suppress. The motion for rehearing and the dissenting opinion
mischaracterize the record, the trial court’s order, and the facts.
Contrary to the motion for rehearing, the trial court’s order did not
explicitly nor implicitly “reject” the testimony of the officer who stopped
Daley, in part, with respect to the bicycle light infraction. In fact, the order
states “[The officer] spotted [Daley], who was riding his bicycle away from
the perimeter; the bicycle had no headlights.” Moreover, the officer did not
testify that the bicycle light infraction was the sole basis for the stop. He
testified that he stopped Daley because “[h]e did not have a light on his
bike and, again, like I said, he matched the description of the suspect, the
clothing of the suspect in the burglary by the victim.”
The motion also reargues the merits, which were sufficiently addressed
in our opinion. Daley matched the sex, race, and height of the suspect.
He was wearing a grey hooded sweatshirt, as was the BOLO suspect. His
direction of travel was headed from the location of the purported crime
toward the perimeter set up several blocks away, as distinct from coming
toward the officers from outside the perimeter. The BOLO suspect was
described as being in his “30s”; at the time of the stop, Daley was 42 years
old (per the booking sheet that is in the record). He was stopped while
riding a bicycle without lights at 1:24 a.m., three blocks from where a
crime had been reported moments earlier. To paraphrase the State’s
question posed at the suppression hearing, “if an officer can’t stop
somebody [per the BOLO-match and circumstances present in this case],
then why are we having these perimeters set up in the first place?”
Accordingly, I join in denying Daley’s motion, as it is a “request [of] the
court to change its mind as to a matter which has already received the
careful attention of the judges.” Lawyers Title Ins. Corp. v. Reitzes, 631
So. 2d 1100, 1101 (Fla. 4th DCA 1993) (quoting State ex rel. Jaytex Realty
Co. v. Green, 105 So. 2d 817, 818–19 (Fla. 1st DCA 1958)).
GROSS, J., dissenting.
The panel opinion ignores the law for appellate review of state appeals
of orders granting motions to suppress evidence obtained by search and
seizure. Contrary to well-established law, the panel opinion rejects the
findings of fact of the trial judge, an approach starkly different from
defense appeals of orders denying motions to suppress evidence under the
Fourth Amendment.
At the hearing on the motion to suppress, the arresting officer testified
that the “basis of the stop” was a bicycle light infraction. A BOLO
described a burglary suspect as a black male, 5′11″ tall, wearing a gray,
hooded sweatshirt. The BOLO did not specify whether the suspect was in
a vehicle, on foot, or on a bicycle. When stopped, appellee was on a bicycle.
He did not try to flee. The trial judge found that appellee was a black male,
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5′10″ tall and that he wore a gray sweatshirt. A show-up identification
established that appellee was not the burglary suspect.
At the hearing, the state took the position that the stop was based on
the municipal infraction of riding a bicycle without a light. The defense
contended that the stop was based on the “bare bones” BOLO. The trial
judge rejected the state’s position that the stop was based on the traffic
infraction and found that the stop was based on the “legally insufficient”
BOLO.
To explain how the panel opinion was wrongly decided, I adopt the well-
reasoned, compelling argument contained in appellee’s motion for
rehearing:
This Court held: “Due to the BOLO and the bicycle light
infraction, the law enforcement officers had reasonable
suspicion to stop Defendant. Thus, the trial court erred by
granting Defendant’s motion to suppress based solely on the
conclusion that ‘there was no reasonable suspicion to justify
the traffic stop of Defendant.’” Daley, 2020 WL 5652362 at 3.
In so holding, this Court overlooks or misapprehends the law
and facts of this case.
First, this Court relies extensively on the bike light
infraction as the basis or contributing factor justifying the
stop. However, the trial court, as the arbiter of the facts,
rejected the officer’s claim that he stopped Appellee because
of the bicycle light infraction. Based upon the trial court’s
statements during the hearing and the written order, the trial
court makes clear it believed the officer saw the missing bike
light only after he had already stopped Appellee for the BOLO.
The question of whether the bike light was the basis for the
stop was placed squarely before the trial court and the trial
court unquestionably rejected that fact by ruling that the
basis for the stop was the BOLO alone.
This Court is not at liberty to disregard or second-guess
that finding. “A reviewing court is bound by the trial court’s
findings of fact—even if only implicit—made after a
suppression hearing, unless they are clearly erroneous.”
State v. Setzler, 667 So. 2d 343, 346 (Fla. 1st DCA 1995); see
State v. K.C., 207 So. 3d 951, 953 (Fla. 4th DCA 2016) (trial
court’s ruling implicitly rejected State’s contentions); State v.
Dorsey, 991 So. 2d 393, 394 (Fla. 1st DCA 2008) (same). “We
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must construe all the evidence, and reasonable inferences
therefrom, in a manner most favorable to sustaining the trial
court’s ruling.” Hines v. State, 737 So. 2d 1182, 1184 (Fla.
1st DCA 1999).
It is a well-settled principle of law that an appellate court,
unlike a trial judge, is not a competent trier-of-fact. See Hurst
v. State, 18 So. 3d 975, 988 (Fla. 2009) (the appellate court
does not substitute its judgment for that of the trial court on
questions of fact, witness credibility, or weighing the
evidence); Kellar v. Estate of Kellar, 257 So. 3d 1044, 1045
(Fla. 4th DCA 2018) (the appellate court is prohibited from
reevaluating the evidence and substituting its judgment for
that of the finder of the facts); Wilson v. State, 191 So. 3d 537,
538–39 (Fla. 1st DCA 2016) (the trial court has the superior
vantage point to judge bearing, demeanor, and credibility of
witnesses).
There is good reason for this principle. “The liar’s story
may seem uncontradicted to one who merely reads it, yet it
may be ‘contradicted’ in the trial court by his manner, his
intonations, his grimaces, his gestures, and the like—all
matters which ‘cold print does not preserve’ and which
constitute ‘lost evidence’ so far as an upper court is concerned
. . . .” Broadcast Music, Inc. v. Havana Madrid Restaurant
Corp., 175 F.2d 77, 80 (2d Cir. 1949) (footnotes omitted). “The
best and most accurate record is like a dehydrated peach; it
has neither the substance nor the flavor of the fruit before it
was dried.” Id. The trial court is in a superior position “to
evaluate and weigh the testimony and evidence based upon
its observation of the bearing, demeanor, and credibility of the
witnesses.” Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976).
As the Court’s opinion stands now, the analysis directly
contradicts the trial court’s fact-finding that the stop was not
based in any way on the traffic infraction. Instead, the Court’s
opinion reads as if it is making its own factual finding about
the bike light infraction, unconnected with the trial court’s
factual finding. Daley, 2020 WL 5652362 at 2-3. If the Court
is going to disregard this established maxim of appellate
review, it needs to do so explicitly so the parties can challenge
the ruling.
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Second, this Court likewise misapprehends facts about
whether Appellee “matched” the BOLO. This Court’s opinion
states that the BOLO was legally sufficient because Appellee
“matched the gender, race, height, and clothing identified in
the BOLO, while being mere blocks away from where the
burglary had just occurred, and while riding his bike away
from the burglary scene.” Daley, 2020 WL 5652362 at 2. This
misconstrues the facts.
The BOLO was for a black male, 5′11″-6′0″, in his 30’s,
wearing a nondescript gray sweatshirt. At the time of the stop,
the officer knew that Appellee was a black male wearing a gray
sweatshirt three blocks away from the burglary. The
characteristics that did not match far outweighed any
purported match. Appellee is in his 40’s, not his 30’s. The
officer had no idea how tall Appellee was because he was
sitting on a bike. There was no reason to think from the BOLO
that the suspect was even on a bike. The suspect’s direction
of travel was unknown. It is a mischaracterization to state
that Appellee was riding “away from the burglary scene”
simply because he was riding in the neighborhood three
blocks away.
These discrepancies and unknown factors, by definition,
are not articulable facts to support reasonable suspicion for a
stop. The details of the BOLO that match Appellee are so
lacking that the description cannot provide particularized,
reasonable suspicion to stop anyone. To state it more plainly,
this Court’s opinion authorizes the officer to stop any black
man wearing a grey sweatshirt in the neighborhood. That is
unquestionably not sufficient cause under the prevailing case
law cited by the trial court and in the answer brief.
Third, the Court’s opinion distinguishes the cases cited by
the trial court based upon the incorrect facts and law noted
above. In discussing M.M. v. State, 80 So. 3d 1125 (Fla. 4th
DCA 2012), this Court asserts that the BOLO in M.M. provided
only the gender and race of the suspect while the BOLO in the
instant case was “substantially more detailed.” To be clear,
M.M. also included the fact that the police stopped the
defendant within three minutes of the crime, three blocks
away from the scene.
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At the time of the stop in the instant case, the officer knew
only that Appellee matched gender, race, grey sweatshirt,
three blocks away within some unknown amount of time. The
only additional fact in the instant case is that Appellee was
wearing a nondescript grey sweatshirt. Such a common
article of clothing is not distinctive enough to provide an
articulable fact that leads to the conclusion that Appellee was
the likely burglar. Moreover, this Court relied on the traffic
infraction to bolster the basis of the stop, despite the trial
court’s rejection of that fact.
Likewise, in discussing Gaines v. State, 155 So. 3d 1264
(Fla. 4th DCA 2015), this Court emphasized the single
discrepancy in the clothing description between Gaines and
the BOLO as a distinction from the instant case where the
clothing matched. This ignores the multiple discrepancies or
unknowns in the instant case between the BOLO and
Appellee, including Appellee’s age, the bicycle, known height
at the time of the stop, and direction of the suspect’s travel.
Again, this Court relied on the bike light infraction as an
additional ground for the stop here that did not exist in
Gaines, despite the trial court’s rejection of that fact.
In discussing Pantin v. State, 872 So. 2d 1000 (Fla. 4th
DCA 2004), this Court noted that the BOLO there lacked
information about the speed, direction, or route of travel of the
suspect. This Court fails to acknowledge, however, that the
same information was lacking from the BOLO in the instant
case. Instead, it relies on the fact that Appellee was present
three blocks away and riding from the direction of the crime
scene. But those facts do not “match” the BOLO; the BOLO
in the instant case contained no information about mode or
direction of flight. Nor do those factors provide reason to
suspect Appellee more so than any other black male who may
have been in the neighborhood.
Most disturbing here is the panel opinion’s departure from the manner
in which we treat a defendant’s appeal of an order denying a motion to
suppress. Where a trial judge says nothing in denying a motion to
suppress, we view the facts from the hearing in the light most favorable to
upholding the trial court’s ruling. See Pagan v. State, 830 So. 2d 792, 806
(Fla. 2002) (“[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
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derived therefrom in a manner most favorable to sustaining the trial
court’s ruling.”); Murray v. State, 692 So. 2d 157, 159 & n.2 (Fla. 1997)
(where the trial court made no factual findings in denying the motion to
suppress, the appellate court reviewed “the evidence and reasonable
inferences and deductions derived therefrom in a manner most favorable
to sustaining the trial court’s ruling”). Here, the trial judge made findings
of fact which the panel opinion rejected. “The evenhandedness of justice
as between subject and sovereign is a reassuring doctrine[.]” Irving
Younger, Sovereign Admissions: A Comment on United States v. Santos, 43
N.Y.U. L. Rev. 108, 115 (1968). At a minimum, the law of appellate review
should impartially apply the same deference to factual findings of the trial
court in appeals brought by the subject and by the sovereign.
* * *
Not final until disposition of timely filed motion for rehearing.
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