Appellant was the Defendant and the Appellee was the Prosecution in the Criminal Division of the County Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida.
In this brief, the parties shall be referred to as they appeared before the County Court at hearing in this case, except the Appellee shall also be referred to as the “State” or the “Prosecution.”

In this brief, the symbol “R.” will be used to denote the Record on Appeal. The symbol “Tr.” will be used to designate a transcript within the Record on Appeal.


Defendant/Appellant, Tommy Studstill (Defendant), was charged by Information with one count of Resisting an Officer without Violence, contrary to section 843.02 of the Florida Statutes (2011), and one count of Placing False 911 Calls, contrary to sections 365.172(3) and 365.172(13) of the Florida Statutes (2011). (R.68) The charges arose from an investigatory stop conducted by Officer Jeremy Pill of the Brevard County Sheriff’s Office on October 14, 2010. (R.59). In his arrest affidavit, Officer Pill alleged that, while investigating an anonymous 911 call pertaining to a shooting around the area of Mila Elementary School in Merritt Island, Brevard County, Florida, he “stopped” Defendant to “determine if he had seen or heard anything or had any involvement related to the call.” (R.59) Officer Pill alleged that, while talking to Defendant, Defendant “kept reaching into his pockets,” despite Officer Pill’s instructions not to do so. (R.59) Defendant was subsequently arrested after allegedly disobeying Officer Pill’s commands. (R. 59)

On December 20, 2010, Counsel for Defendant filed a Motion to Suppress, challenging the legality Officer Pill’s investigatory stop. (R.83) The Motion was heard on January 13, 2011 before the Honorable Rhonda E. Babb. At hearing, Officer Pill testified that, on the evening in question, he had received a call “in reference to people shooting firearms off” in the area of Mila Elementary. (Tr. 9) As Officer Pill arrived on scene, he saw Defendant, who was the only person in the area. (Tr 9) No shots were heard from the location and no suspects were seen matching the description provided by the 911 caller. (Tr. 17-18) Officer Pill alleged that he knew of the 911 prefix from which the call was made and, that from prior “false” 911 calls allegedly made by Defendant, he recognized the prefix as belonging to the cell phone owned by Defendant. (Tr 9-11) However, the officer conceded that he did not remember the prefix and did not verify that Defendant even possessed the phone until after the initial investigatory stop commenced. (Tr. 12)

Officer Pill conceded that his encounter with Defendant amounted to an investigatory stop and that his investigation was based both on the “possibility that [the call] [was] a false 911 call” and the possibility that the 911 call was “not false.” (Tr. 22; 23-24; 25-26) He explained that “we had the phone call about the firearms, people shooting off. So that was one reason why we stopped because he was the only one in the area and he was- and due to that. Also as well as notif [sic]- noticing the prefix on the 911 call.” Officer Pill testified that both possibilities (that there was in fact a shooting and that there was a false 911 call giving a false report of a shooting) were investigated by police “at one time” in combination with one another. (Tr 25; 27)

After stopping Defendant, Officer Pill requested permission to check Defendant’s phone. (Tr. 12-13) Defendant allegedly consented to the request. (Tr. 12-13) Officer Pill then called 911 with Defendant’s phone in order to verify that it matched the prefix of the phone used to call 911 in reference to the reported shooting near Mila Elementary. (Tr. 13-14) The officer conceded that only after conducting the investigatory stop did he “confirm it was the same phone that [Defendant] had previously used from the incident documented in the past.” (Tr. 13) Upon verifying the prefix, Defendant was observed reaching repeatedly into his pockets. After multiple commands for Defendant to remove his hands from his pockets, Defendant was placed under arrest for Resisting an Officer without Violence. (Tr. 14).

At the conclusion of the hearing, Counsel for Defendant argued that Officer Pill lacked the reasonable or founded suspicion to conduct an investigatory stop of Defendant. (Tr. 40-41) Counsel contended that Officer Pill had made two investigatory stops- one to investigate the reported shooting and one to investigate the possibility of a false 911 call- and that neither stop was supported by the requisite degree of reasonable suspicion. (Tr. 42-43).

The trial court denied Defendant’s Motion to Suppress, finding that, under the “totality of the circumstances,” the investigatory stop of Defendant was justified. (R.86) This appeal followed.


The trial court’s denial of Defendant’s Motion to Suppress Evidence presents mixed questions of fact and law. State v. Rodriguez, 904 So. 2d 594, 596 (Fla. 5th DCA 2005); State v. Kindle, 782 So. 2d 971, 973 (Fla. 5th DCA 2001). With respect to the trial court’s findings of fact, the standard of review is whether competent, substantial evidence supports the findings. Hines v. State, 737 So. 2d 1181, 1184 (Fla. 5th DCA 2005). The reviewing court must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court’s ruling. San Martin v. State, 717 So. 2d 462, 469 (Fla. 1998); Kindle, 782 So. 2d at 973. The trial court’s application of the law to the facts is reviewed de novo. Kindle, 782 So. 2d at 973. De novo review means that the appellate court is free to decide the question of law without deference to the trial judge, as if the appellate court was deciding the question in the first instance. Transportes Aereos Nacionales, S.A., v. DeBrenes, 625 So.2d 4 (Fla. 3d DCA 1993).


Defendant asserts that the trial court erred in its legal finding that, under the totality of the circumstances, police were justified in subjecting Defendant to an investigatory stop. With regard to the stop conducted on the basis of the reported shooting, Defendant’s mere presence in the vicinity of the shooting is, standing alone, insufficient to conclude that Defendant committed or was committing a crime. With regard to the stop conducted on the basis of the allegedly false 911 call, Officer Pill lacked sufficient information or corroborative evidence to conclude that Defendant had committed any offense. Even assuming that officers recognized the 911 prefix associated with Defendant’s phone, there is nothing in the record to show the time frame of alleged prior false calls, and such calls, even if made in the past, provided police with nothing than a “hunch” or bare suspicion of present criminal conduct.



The trial court erred in its legal finding that police officers were justified in conducting an investigatory stop of Defendant. In order to justify an investigatory stop, law enforcement officers must have a well-founded, reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Second District Court of Appeal has held that a police officer may temporarily detain a person and conduct an investigatory stop if the officer has a “founded” suspicion that the person has committed, is committing, or is about to commit a crime. Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); State v. Allen, 994 So. 2d 1192, 1193 (Fla. 5th DCA 2008).

Founded suspicion must have a factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985). Thus, the legitimacy of the stop must be determined by consideration of the “totality of the circumstances” surrounding it. Brown v. State, 719 So. 2d 1243 (Fla. 5th DCA 1998). Factors that may reasonably suggest a suspect’s possible commission of a crime include the location (for example, a high crime area), physical appearance of the suspects, the behavior of the suspects (for example, unprovoked flight), the appearance of the motor vehicle, and anything incongruous or unusual in the situation. McMaster v. State, 780 So. 2d 1026, 1029 (Fla. 5th DCA 2001) (citing Brown, 719 So. 2d at 1245). Other factors can include the temporal and geographic proximity of the stop to the crime, the matching description of the men to the BOLO, the presence of the defendants in the police perimeter, the limited avenues of escape for the suspects, coupled with the defendants’ appearance and behavior consistent with flight from the robbery are articulable facts supporting a founded suspicion for the stop. State v. Davis, 849 So. 2d 398, 401 (Fla. 4th DCA 2003).

An investigatory stop is invalid where it is conducted on the basis of a police officer’s “hunch” or “bare suspicion.” Wallace v. State, 8 So. 3d 492, 494 (Fla. 5th DCA 2009). Florida appellate courts have held that a stop made on the basis of a suspect’s prior arrests or criminal charges does not provide a well-founded suspicion of current criminal activity. Beckham v. State, 934 So. 2d 681, 684 (Fla. 2d DCA 2006); King v. State, 521 So. 2d 334, 337 (Fla. 4th DCA 1988). It merely provides the officers with a “hunch.” Beckham, 934 So. 2d at 684.

Where a police officer conducts an investigatory stop on the basis of a physical description of the suspect, the description provided to the officer must be sufficiently specific and corroborated by reliable information. In Florida v. J.L., 529 U.S. 266 (2000), the United States Supreme Court affirmed a judgment holding that a “stop and frisk” search of respondent based only on an anonymous tip was invalid under the Fourth Amendment. The suspect was searched after an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Id. at 268. Sometime after the police received the tip (for which there was no record), two police officers were instructed to respond. Id. They arrived at the bus stop approximately six minutes later and saw three black males “hanging out.” Id. One of the three black males was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, the suspect made no unusual movements, and there was no attempt to flee or otherwise evade police. Id. Based on these facts, the “stop and frisk” was held to be invalid. Id.

Consistent with Florida v. J.L., Florida Courts have upheld investigatory stops by police only where the suspect matches specific identifying descriptions and other information corroborates the allegation that suspect has engaged in criminal activity. In State v. Allen, 994 So. 2d 1192 (Fla. 5th DCA 2008), police conducted an investigatory of a suspect after receiving an anonymous tip by a confidential information who had a history of reliability. Allen, 994 So. 2d at 1193. The informant provided a specific description of the suspect as “a black male, dark skin, approximately 6’2”, weighing 200 pounds, wearing a dark-colored t-shirt, with facial hair.” Id. The suspects were located in a high-crime area and walked away “hurriedly” when approached by officers. Id. Based on the specificity of the information received by police officers, the known reliability of the informant, and suspicious activity observed upon the approach of police, the Fifth District upheld the investigatory stop. Id. at 1195.

In the instant case, Officer Pill conceded that his encounter with Defendant amounted to an investigatory stop. (Tr. 22; 23-24; 25-26). He further stated that he stopped Defendant for two reasons. First, Officer Pill felt that “we might have a shooting in the area” and he had to ensure that there was “not an actual call that was true.” (Tr. 24-25). His stated basis for suspecting Defendant was that “Studstill [was] in the area . . . So maybe he’s the one shooting the gun.” (Tr. 24) Officer Pill went on to repeat his factual basis, stating: “I’m telling you we stopped him based on the fact—because he was in the area.” (Tr. 26) As his second justification for stopping Defendant, Officer Pill testified that he suspected that Defendant had made a false 911 call and therefore that there was no shooting (Tr. 17-18) The factual basis for suspecting that the 911 call was false was that Defendant was the only person in the area around Mila Elementary (no shooters were seen), that no shots were heard coming from the reported location, and that, from prior incidents of alleged false 911 calls, he recognized the 911 prefix associated with Defendant’s phone. (Tr. 9-11; 17-18).

Neither justification for stopping Defendant meets the legal standard for a finding of reasonable or founded suspicion. With regard to Officer Pill’s suspicions that Defendant might have been involved in the reported shooting, Officer Pill acted exclusively on Defendant’s mere presence in the reported area. There was no allegation that Defendant matched a physical description of the suspect and no allegation that Defendant took flight or engaged in other suspicious behavior consistent with criminal conduct. Officer Pill conceded that “there was nobody matching the description” of the alleged shooters. There was furthermore a complete absence of testimony that Defendant was present in a police perimeter, was observed carrying a gun, was observed concealing himself, or that Defendant was identified by any witness. Officer Pill said nothing about Defendant’s behavior that was incongruous or unusual. Defendant merely walked down a public street and happened to be in the geographical area of a reported shooting. Thus, there were no articulable facts, aside from Defendant’s mere presence on nearby street, supporting a finding of founded suspicion.

With regard to Officer Pill’s second justification for stopping Defendant, this too fails to meet the legal standard for a finding of founded suspicion. The fact that Officer Pill recognized from alleged prior criminal conduct the 911 prefix from Defendant’s phone establishes nothing more than a “hunch” of current criminal conduct. See Beckham, 934 So. 2d at 684. Officer Pill conceded that he did not remember the prefix belonging to Defendant’s phone and did not verify that Defendant even possessed the phone until after the initial investigatory stop occurred. (Tr. 12) He stated that, upon receiving the call, “I didn’t notice and remember the phone number and the prefix from that phone, and I saw [Defendant] in the area, I turned around and I made contact with him and started talking to them [sic] and which – – I asked him if he still had his cell phone.” (Tr. 12) Thus, the testimony established that Officer Pill merely suspected that the prefix was associated with Defendant’s phone and had no knowledge as to whether Defendant was in fact carrying the phone.

The finding of founded suspicion for false 911 calls is further undermined by the fact that Officer Pill had almost no opportunity to investigate the reported shooting. He testified that he arrived on scene after a “minute or so” and gave no testimony as to any other investigative step to confirm or disconfirm that falsity of the 911 call. (Tr. 21) There was no testimony that he checked behind any houses, yards, side streets, or on the property of Mila Elementary School, where the reported shooting supposedly occurred. Without a more substantial investigation, Officer Pill had no basis for his factual conclusions, aside from the fact that he did not personally witness the shooting and that he recognized Defendant as a person who made allegedly false reports in the past.

In addition to the foregoing, the justifications for stopping Defendant are logically untenable. On the one hand, Officer Pill alleged that that his investigatory stop of Defendant was based on a suspicion that Defendant was involved in a reported shooting around the area of Mila Elementary. The proposition on this point is that the factual circumstances indicated that the 911 call might have been true and that Defendant may have had involvement in the incident that was reported. On the other hand, Officer Pill alleged that his investigatory was based on a suspicion that Defendant had made a false 911 call. The proposition here is that the factual circumstances indicated that the 911 call was false and therefore that Defendant had no involvement in the reported incident.

Thus, the 911 call was thought, under the purported factual circumstances, to be both true and false, and Defendant was believed, under the purported factual circumstances, to have had involvement in the reported shooting as well as no involvement in the reported shooting. The fact that Officer Pill believed that the call me be true and false, and that Defendant was both a suspect in the shooting and not a suspect, undermines the legal finding of the trial court that, under the “totality of the circumstances,” Officer Pill had reasonable suspicion to carry out his investigatory stop.


For the foregoing reasons, undersigned counsel respectfully requests that this Court reverse the order of the trial court and reverse Defendant’s conviction and sentence.