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Date: 06-10-2019

Case Style:

Jerry Weakley vs State of Florida

Case Number: 17-2727

Judge: Thomas D. Winokur

Court: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

Plaintiff's Attorney: Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant Attorney General

Defendant's Attorney: Andy Thomas, Public Defender, Steven Seliger, Assistant Public Defender, Lori A. Willner, Assistant Public Defender, and Aimee Lim, Assistant Public Defender

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A nighttime 911 call from a small, five-mobile-home area at the end of a dirt road reported a suspicious person on a motorcycle walking around a foreclosed home nearby. The caller believed the person might be committing a burglary, but, in the dark of the night, could not provide any additional details and then refused to disclose his or her identity. Two officers responded within minutes, driving down the empty road to the group of mobile homes. Before they got there, Jerry Weakley approached heading in the opposite direction on a motorcycle before aggressively accelerating and veering into the shoulder of the road in an attempt to flee past the officers. Based on the motorcyclist’s behavior and the nature of the report, the officers stopped Weakley, discovered the motorcycle to be stolen, and found various articles of contraband. Weakley
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moved to suppress the contraband, but the trial court found the officers had reasonable suspicion to stop him. Weakley entered a plea to four charges, reserving the right to appeal the denial of his motion to suppress, which he now does. Because we find that Weakley has not met his burden of proving the trial court’s ruling incorrect, we affirm.1
A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.
C.E.L. v. State, 24 So. 3d 1181, 1186-89 (Fla. 2009) (citations omitted) (holding that flight from the police in a high-crime area satisfied reasonable suspicion).
In Baptiste v. State, 995 So. 2d 285, 288, 293 (Fla. 2008), an anonymous caller reported a man’s alleged criminal activity and responding officers detained the man without observing “any illegal activity, unusual conduct, or suspicious behavior.” The supreme court found that the officers lacked reasonable suspicion. While the Court acknowledged that an anonymous tip alone generally does not provide reasonable suspicion for a stop, it made sure to note that anonymous tips could “provide reasonable suspicion under a totality-of-the-circumstances analysis” in certain cases, such as when an officer makes “subsequent observations of a suspect who matches the description given.” Id. at 296-97 (citing United States v. Gooden, 273 F.3d 1100, 1100 (5th Cir. 2001) (unpublished opinion), as holding that “even where the anonymous tip alone failed to establish reasonable suspicion, the
1 “The ruling of the trial court on a motion to suppress comes to us clothed with a presumption of correctness and we must interpret the evidence and reasonable inference and deductions in a manner most favorable to sustaining the trial court’s ruling.” Presley v. State, 204 So. 3d 84, 86-87 (Fla. 1st DCA 2016) (quoting Johnson v. State, 608 So. 2d 4, 9 (Fla. 1992)).
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fact that the suspect reached for his waistband upon seeing officers provided reasonable suspicion for initiation of a Terry stop”). The supreme court continued, stating that “nervous behavior of a suspect upon the approach of an officer, when considered in conjunction with a purely anonymous tip, may under the totality of the circumstances establish reasonable suspicion for an investigative stop.” Id. at 297 (discussing United States v. Sims, 296 F.3d 284, 285-87 (4th Cir. 2002), and noting that neither the anonymous tip nor the suspect’s nervous and evasive behavior would have independently justified a search, but did so when considered together). Additionally, the “court may consider ‘the time of day, the day of the week, the location, the physical appearance and behavior of the suspect, the appearance and manner of operation of any vehicle involved or anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge.’” Jenkins v. State, 685 So. 2d 918, 920 (Fla. 1st DCA 1996) (quoting Gipson v. State, 537 So. 2d 1080, 1081 (Fla. 1st DCA 1989)).
Considering the totality of the circumstances, and by interpreting the evidence in the manner most favorable to sustaining the trial court’s ruling, we conclude that the officers had reasonable suspicion to stop Weakley. A caller reported an unknown individual on a motorcycle walking around an abandoned home one night and believed a burglary might be occurring. Officers quickly responded to the very secluded area down a dirt road in the dark and found a motorcycle approaching. Rather than calmly stop or pull to the side of the road so the officers could pass, Weakley aggressively veered to pass the officers and flee. Cf. Baptiste, 995 So. 2d at 296-97; Tobin v. State, 146 So. 3d 159, 161-63 (Fla. 1st DCA 2014) (finding no reasonable suspicion where the anonymous calls were not corroborated by suspicious activity as the appellant was stopped when simply leaving the property).
In finding the stop unconstitutional, the dissent makes two mistakes. First, it considers the various indicia of suspicion individually, discounting separately the anonymous call about Weakley lurking around the vacant trailer and his later attempt to evade police. But the Supreme Court recently noted that “the whole is often greater than the sum of its parts—especially when
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the parts are viewed in isolation” and faulted a lower court for viewing each fact in isolation, as the “totality-of-the-circumstances test ‘precludes this sort of divide-and-conquer analysis.’”2 District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). Applying this rule from Wesby and Baptiste, Weakley’s flight from the police works in conjunction with the report that he may have just committed or attempted a burglary. Second, having determined that neither the anonymous call nor flight was independently sufficient, the dissent concludes that Weakley’s flight was not really a flight, but the expected behavior of an approaching motorist, and could not contribute to the reasonable-suspicion analysis. But the officers testified that Weakley’s driving was aggressive and indicative of an attempt to flee, and the trial court found that Weakley attempted to flee. The dissent improperly dismisses the trial court’s finding and fails to interpret the evidence in the light most favorable to affirmance, as we must. See Presley, 204 So. 3d at 8687. The dissent also repeatedly notes that Weakley was not arrested or cited for a traffic violation for fleeing from police. But conduct does not need to be illegal (or acted upon if so) to be suspicious. The Supreme Court explained that “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.” Wesby, 138 S. Ct. at 588 (quoting Illinois v.

2 The Supreme Court specifically held in Wesby that the lower court erred in isolating the questionable circumstances of a group of people found in a vacant home from their subsequent flight from police:
Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers “scattered or hid when the police entered the house” because that fact was “not sufficient standing alone to create probable cause.” Similarly, it found “nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome.”
Wesby, 138 S. Ct. at 588 (citations omitted).

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Gates, 462 U.S. 213, 244 n.13 (1983)). It is thus irrelevant that, as the dissent points out, “no criminal charges or traffic violations were lodged against Weakley, other than the possession charges that arose from his detention.” Dissenting op. at 7. We do not need to decide if Weakley’s flight may have violated any laws in itself, nor did the officers.3 It was reasonable to conclude that Weakley attempted to flee when officers approached and that this flight was suspicious in light of the report of a suspected burglary. See Wesby, 138 S. Ct. at 587 (“‘[U]nprovoked flight upon noticing the police,’ we have explained, ‘is certainly suggestive’ of wrongdoing and can be treated as ‘suspicious behavior’ that factors into the totality of the circumstances. . . . In fact, ‘deliberately furtive actions and flight at the approach of . . . law officers are strong indicia of mens rea.’” (quoting Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000), and Sibron v. New York, 392 U.S. 40, 66 (1968))).4
Finding no error in the trial court’s findings, we agree that the totality of the circumstances shows that the officers had

3 The same is true regarding the failure of the 911 caller to specifically identify a crime that was occurring or had occurred. As Wesby notes, conduct does not necessarily have to be criminal to warrant investigation under the reasonable suspicion standard. This has long been part of Fourth Amendment jurisprudence. See, e.g., Reid v. Georgia, 448 U.S. 438, 441 (1980) (holding that “there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot”). 4 We also reject the dissent’s implication that the tip could not factor into the reasonable-suspicion analysis because it did not provide a description of Weakley’s physical characteristics. A description of an individual with a motorcycle in a very secluded area down a dirt road at night could provide at least as specific of a description as identifying the race and clothing of someone in a public place like a grocery store. Cf. Baptiste, 995 So. 2d at 288 (“anonymous caller had reported that a black male wearing a white T-shirt and blue-jean shorts had waved a firearm in front of a grocery store”).

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reasonable suspicion to stop Weakley following his attempted flight.5

Outcome: We AFFIRM his convictions.

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