DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                              STATE OF FLORIDA,
                                  Appellant,

                                         v.

                                DOUGLAS DALEY,
                                   Appellee.

                                  No. 4D19-3590

                              [September 23, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia Wood, Judge; L.T. Case No. 19-1325
CF10A.

   Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   The State of Florida appeals a trial court order that granted Defendant
Douglas Daley’s motion to suppress in a prosecution for tampering with
physical evidence. The court ruled that the bicycle stop was not prolonged,
but that it was based on an overly vague “Be on the Lookout” notice
(“BOLO”). Therefore, the trial court determined that there was insufficient
reasonable suspicion to justify the stop and suppressed all evidence
obtained from the stop as “fruit of the poisonous tree.” 1 Because we find
the police had reasonable suspicion to justify the stop, we reverse and
remand for further proceedings in this case.

                                   Background

   Two Fort Lauderdale Police Department officers set up a perimeter
checkpoint about three blocks away from a reported residential burglary.2

1   Wong Sun v. United States, 

(1963).
2   At times the offense was identified as an attempted burglary.
The BOLO described the burglary suspect as “a black male, approximately
5’11”, and wearing a grey hooded sweatshirt.” One of the officers testified
that he and his colleague observed someone whom they believed matched
this description, riding a bicycle without a front-facing headlight, in
violation of section 316.2065(7), Florida Statutes (2018). This person was
later identified as Defendant. The officers further observed Defendant
riding his bicycle westbound from the area of the recently reported
burglary, so they conducted a traffic stop at 1:24 a.m.

    At the suppression hearing, one of the officers testified that Defendant
was stopped 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 officer later clarified that he
thought Defendant matched the BOLO because he was wearing a grey
hooded sweatshirt and that he could not tell how tall Defendant was while
he was riding the bicycle. The officer further testified that he advised
Defendant “the reason why I was stopping him; that he matched the
description and he was coming from the area where the burglary occurred.
I also advised him that he was being stopped [for] not having the headlight
and the tail light [sic] on the bike.”

    The officers called for backup. Less than ten minutes after the initial
stop, a purported witness to the burglary arrived. However, the witness
did not identify Defendant as the burglar. The officers continued to hold
Defendant while a citation was being prepared for the bicycle light
infraction. During this time frame, one of the officers who had arrived as
backup observed a “small off white waxy looking object” in Defendant’s
mouth. Defendant refused the officer’s order to spit the item out and
instead swallowed it. Defendant was therefore arrested and charged with
tampering with or fabricating physical evidence, but he was not charged
with any crimes related to the burglary or the lack of a bicycle headlight.

   In moving to suppress, Defendant argued that he was unlawfully
stopped and detained based on a legally insufficient BOLO. If the stop and
arrest were based on the alleged bicycle infraction, he argued that it would
be illegal, as such an offense is non-criminal, and a person cannot be
arrested for it.

   After a hearing on Defendant’s motion to suppress, the trial court
entered an order granting the motion. The trial court ruled:

        The State asserts that the traffic stop was based on the
      municipal infraction and not the BOLO, and therefore, the


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      officer’s subjective intent was irrelevant, and the stop was
      valid.

         Defendant asserts that the traffic stop was based on the
      BOLO, which was “bare bones” and lacked specificity to
      provide [the officer who initiated the stop] with reasonable
      suspicion. Defendant also asserts the stop was prolonged.

         Based on the testimony presented and the totality of the
      evidence, the Court finds that the traffic stop, which was not
      prolonged, was based on a legally insufficient BOLO, and
      hence, there was no reasonable suspicion to justify the traffic
      stop of Defendant. See M.M. v. State, 

(Fla. 4th
      DCA 2012); Gaines v. State, 

(Fla. 4th DCA
      2015); Pantin v. State, 

(Fla. 4th DCA 2004).
      Therefore, the Court finds that all evidence observed or
      obtained by the police from the Defendant during the traffic
      stop was the “fruit of the poisonous tree” and shall be
      suppressed and excluded at trial.

   This appeal by the State followed.

                                  Analysis

    “The trial court is vested with the authority to determine the credibility
of the witnesses and the weight of the evidence in ruling on a motion to
suppress.” Delorenzo v. State, 

, 876 (Fla. 4th DCA 2006).
An appellate court is required to accept the trial court’s determination of
historical facts and the inferences drawn therefrom, but it reviews de novo
the application of the law to those facts.

established a perimeter three blocks away from the site
of a reported burglary. The BOLO identified the burglary suspect as a
black male, 5’11”, wearing a grey hooded sweatshirt. The officers then
stopped Defendant at 1:24 a.m.—a black male wearing a grey hooded
sweatshirt and riding a bicycle from the direction of the recently reported
burglary. Further, the trial court found that Defendant was 5’10”. Thus,
the State argues, the officers had reasonable suspicion to briefly stop
Defendant because he 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. There is no evidence in the record that supports the trial
court’s conclusion that the BOLO was “bare bones” or “legally insufficient.”
See, e.g., Hunter v. State, 

, 249 (Fla. 1995) (discussing the

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factors to be considered in determining when a BOLO alert provides law
enforcement officers with reasonable suspicion to stop an individual).

   Additionally, Defendant was riding the bicycle without lights at night,
a clear violation of Florida’s bicycle regulations. See § 316.2065(7), Fla.
Stat. (2018) (“Every bicycle in use between sunset and sunrise shall be
equipped with a lamp on the front exhibiting a white light visible from a
distance of at least 500 feet to the front and a lamp and reflector on the
rear each exhibiting a red light visible from a distance of 600 feet to the
rear.”); Thomas v. State, 

, 470–71 (Fla. 1993) (law
enforcement may detain an individual “for the purpose of issuing a ticket,
a summons or a notice to appear” with respect to violations of municipal
ordinances that are noncriminal infractions); Ray v. State, 

, 1224 (Fla. 4th DCA 2003) (in situation where the defendant was
“stopped for riding his bicycle at night without the proper lights,” there
was “no question that the stop itself was valid”).

    Under the circumstances discussed herein, we are not persuaded by
the argument that the officers lacked reasonable suspicion to stop
Defendant, either based on the BOLO or the bicycle light violation.
Certainly, the combination of the two provided ample reasonable suspicion
to justify the traffic stop.

    None of the three opinions cited by the trial court support a contrary
conclusion as they are all materially factually distinguishable from the
case at bar. M.M. v. State, 

(Fla. 4th DCA 2012), involved a
stop that “rested entirely on the description from the BOLO,” with the
BOLO being limited to the suspect’s gender and race.

The
BOLO here contained substantially more detailed information, and
Defendant was stopped based on both the BOLO and the bicycle light
infraction. In Gaines v. State, 

(Fla. 4th DCA 2015), the
BOLO identified a suspect who fled on foot, wearing a long-sleeved dark T-
shirt; the defendant was stopped while riding in a van, wearing a white T-
shirt.

No such discrepancy exists here. Moreover, unlike
the instant case, the arresting officers in Gaines “did not see [the
defendant] commit any traffic infractions or engage in any suspicious
behavior.” See

Finally, in Pantin v. State, 

(Fla. 4th DCA 2004), the court found the stop was based solely on an
insufficient stolen vehicle BOLO, most notably lacking “information about
the speed, direction, or route of the vehicle.”

Here, the officers
stopped Defendant in close proximity to, and traveling westbound away
from, the purported crime scene.

                                 Conclusion

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    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.” This case is remanded for further proceedings with
respect to the charge of tampering with or fabricating physical evidence.

   Reversed and Remanded for further proceedings.

LEVINE, C.J., concurs.
GROSS, J., dissents with opinion.

GROSS, J., dissenting.

   Citing Delorenzo v. State, 

, 876 (Fla. 4th DCA 2006), the
majority correctly states the law that an “appellate court is required to
accept the trial court’s determination of historical facts and the inferences
drawn therefrom, but it reviews de novo the application of the law to those
facts.”

   Then the majority ignores that law.

    At the hearing on the motion to suppress, the central issue was the
credibility of the arresting officer on the basis for the stop. The officer
testified that “the basis of the stop was due to the infraction” of riding a
bicycle without a headlight. The officer did not issue a citation for the light
infraction. Nor was the absent bicycle light mentioned in the probable
cause affidavit. There was also some testimony that the stop was based
on the BOLO.

   The trial judge questioned the officer closely about the basis for the
stop. She made an express finding of fact that the basis of the stop was
the BOLO, not the traffic infraction. Just as she disbelieved the officer’s
testimony about the infraction, the trial judge was entitled to disbelieve
the police officer about the content of the BOLO.

   Here, the trial judge properly acted as a “gatekeeper[] of the Fourth
Amendment” by “critically evaluat[ing]” the testimony at the suppression
hearing. Ruiz v. State, 

, 1233 (Fla. 4th DCA 2011).
Contrary to the law, the majority has reweighed the evidence.

  Some changes in the law are momentous. See Brown v. Bd. of
Education, 

(1954). Others, as in this case, come into the law

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like Carl Sandburg’s fog, “on little cat feet.” Carl Sandburg, Fog, Poetry
Foundation,      https://www.poetryfoundation.org/poems/45032/fog-
56d2245d7b36c (last visited September 4, 2020).

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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