NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA, )

)

Appellant, )

)

v. )

)

JAMES LEACH, )

)

Appellee. )

)

Case No: 2D14-1569

Opinion filed May 8, 2015.

Appeal from the Circuit Court for Sarasota 

County; Donna Padar Berlin, Judge.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Katherine Coombs Cline, 

Assistant Attorney General, Tampa, for 

Appellant.

Howard L. Dimmig, II, Public Defender, 

and Clark E. Green, Assistant Public 

Defender, Bartow, for Appellee.

WALLACE, Judge.

The State of Florida appeals a circuit court order granting James Leach's 

motion to suppress statements and physical evidence based on an alleged improper 

detention. Because the law enforcement officers involved had a reasonable suspicion 

sufficient to justify Mr. Leach's detention, which did not become a premature arrest 
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when he was handcuffed briefly while waiting for an eyewitness to arrive at the scene, 

we reverse the circuit court's order.

I. THE FACTS

On April 5, 2013, at approximately 10:30 p.m., a citizen saw a man break 

into a work truck parked at a business near the intersection of Warfield Avenue and 

Cypress Avenue in Venice, Florida. Gregory Liedke owned the business, and the truck 

was assigned to his employee, Donald Coup. Upon witnessing the man break into the 

truck, the citizen called 911, reported the break-in while it was still in progress, and 

informed the 911 operator that the perpetrator was carrying a white bucket and was 

leaving the scene in a newer-model, "fancy," white automobile. The citizen informant 

also described the perpetrator as a white male, fifty to sixty years old, and slightly 

overweight. Based on this report, the 911 operator arranged for the issuance of a 

BOLO ("be-on-the-lookout" alert) with the pertinent information.

Officer Alec Gregoire of the Venice Police Department was patrolling the 

area with Officer Walker. The two officers responded to the BOLO and immediately 

went to the location of the business where the break-in had been reported. Finding no 

one, the officers circled the block. A few minutes after the initial report, about onequarter of a mile from the scene of the break-in, the officers saw a 2005 white Chrysler 

3001 at an auto repair business located in an industrial area. The Chrysler was parked 

"on the easement" and "in the driveway," perpendicular to the other cars parked at the 

business. The auto repair business and other nearby businesses were closed for the 

 

1Although the car was approximately eight years old, it was apparently 

well-maintained and appeared to be relatively new.
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evening; there were no people around, and there was very little traffic. The officers' 

attention was drawn to the Chrysler because of the odd manner in which it was parked 

and its resemblance to the car described in the BOLO.

The officers stopped to investigate. Immediately, they saw Mr. Leach 

crouching behind the Chrysler. Both officers drew their pistols; Officer Gregoire 

repeatedly commanded Mr. Leach to stand up and show his hands. Mr. Leach did not 

move from his crouching position until after Officer Gregoire had warned him 

approximately seven times. Finally, Mr. Leach stood up, and the officers could see that 

he—like his automobile—matched the description given in the BOLO. The officers 

handcuffed Mr. Leach for their safety and detained him pending a further investigation. 

The officers continued to hold the handcuffed Mr. Leach while waiting for 

the man who had witnessed the break-in at the remodeling business to be transported 

to the scene for a show-up identification. In the interim, the officers read Mr. Leach his 

Miranda2rights and asked him what he was doing at the auto repair business. Mr. 

Leach explained that he was driving from his mother's home in Venice to his home in 

Sarasota and that he had stopped at the auto repair shop to urinate. However, the area 

where Mr. Leach claimed to have urinated showed no evidence of moisture.

Meanwhile, Mr. Liedke and Mr. Coup had arrived at their business and 

had confirmed that their truck had been broken into and reported several tools missing 

from the truck. At the location where Mr. Leach was being detained, the officers 

observed that the windows of Mr. Leach's car were open. Through the open windows, 

the officers could see a white bucket and several tools in the back seat area of the car. 

 

2Miranda v. Arizona, 384 U.S. 436 (1966).
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A few minutes after Mr. Leach had been detained, the witness arrived and immediately 

identified Mr. Leach as the man he had seen breaking into the truck at Mr. Liedke's 

business. The officers arrested Mr. Leach at 10:59 p.m. Thus the entire sequence of 

events from the initial report of the incident until the officers placed Mr. Leach under 

arrest took approximately thirty minutes.

The Chrysler driven by Mr. Leach was towed to the police impound lot. 

Mr. Coup came to the police department and identified the items recovered from the car 

as the same tools that had been taken from his truck. Accordingly, the State charged 

Mr. Leach with the burglary of an unoccupied conveyance in violation of sections 

810.02(1) and 810.02(4)(b), Florida Statutes (2012), a third-degree felony.

II. THE TRIAL COURT'S RULING 

Mr. Leach filed a motion to suppress "all tangible items of property, 

admissions, and other evidence seized by the police during and after an unlawful and 

unreasonable search and seizure of an automobile he had legally parked." At the 

hearing on the motion to suppress, the State called Officer Gregoire as its only witness; 

the defense did not call any witnesses. Thus the facts presented to the circuit court 

were substantially undisputed. At the hearing, as he does on appeal, Mr. Leach relied 

primarily on Baggett v. State, 849 So. 2d 1154 (Fla. 2d DCA 2003). The State relied

primarily on State v. J.T., 132 So. 3d 331 (Fla. 4th DCA 2014), and Studemire v. State, 

955 So. 2d 1256 (Fla. 4th DCA 2007).

The trial judge took the matter under consideration for a couple of days 

and then announced her ruling as follows:

In reviewing the case law provided to the Court, 

based upon me accepting the officer's testimony as the facts 
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of this case and [defense counsel's] concession on behalf of 

the Defense that this was a citizen informant reporting so 

there isn't as high a threshold, the burglary alone in the 

description, I do not think provided the sufficient—whether 

you call it reasonable suspicion or probable cause—for the 

officers to then draw out their guns and detain them [sic] for 

the length of time that they did, whether it was for loitering or 

prowling, but for the burglary in this case which is what the 

State was proceeding on.

. . . .

So based upon [the BOLO] at this point, while that 

was enough to get the officers going and approaching and 

everything that they did, by the time that they got to Mr. 

Leach, and I do accept the State's argument that they 

reached him within a short period of time in a smaller 

temporal proximity, but at that point, the gun drawn, the 

handcuffs on, I don't believe there was probable cause to 

detain him for the burglary at that point. So I will go ahead 

and grant [the motion].

The circuit court did not make any additional findings in its written order granting Mr. 

Leach's motion to suppress. This appeal followed.3

III. THE STANDARD OF REVIEW

We employ a mixed standard of review in considering the circuit court's 

ruling on Mr. Leach's motion to suppress. The circuit court's determination of historical 

facts enjoys a presumption of correctness and is subject to reversal only if it is not 

supported by competent, substantial evidence in the record. See E.B. v. State, 866 So. 

2d 200, 202 (Fla. 2d DCA 2004). However, the circuit court's determinations on mixed 

questions of law and fact and its legal conclusions are subject to de novo review. See

 

3We have jurisdiction of the State's appeal in accordance with Florida Rule 

of Appellate Procedure 9.140(c)(1)(B).
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Ornelas v. United States, 517 U.S. 690, 699 (1996); Connor v. State, 803 So. 2d 598, 

608 (Fla. 2001); E.B., 866 So. 2d at 202.

IV. DISCUSSION

A. The Validity of Mr. Leach's Initial Detention

We begin our analysis by considering whether the information provided by 

the citizen informant and the other pertinent circumstances gave Officers Gregoire and 

Walker a reasonable suspicion sufficient to justify their initial investigative stop of Mr. 

Leach. The trial court apparently concluded that the officers' initial stop of Mr. Leach 

was justified. We agree. In determining this question, we look to the totality of the 

circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002) (noting that reviewing 

courts "must look at the 'totality of the circumstances' of each case to see whether the 

detaining officer has a 'particularized and objective basis' for suspecting legal 

wrongdoing" (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981))).

Here, the BOLO to which the officers responded described an older, 

heavyset, white male who had broken into a work truck at a remodeling business and 

had driven away in a newer, white automobile. Granted, the description of the 

perpetrator of the break-in was sketchy and amounts to a vague description that would 

fit many individuals. Nevertheless, the other pertinent circumstances known to the 

officers when they decided to make the initial investigative stop of Mr. Leach provided a 

much more complete picture. First, the time elapsed between the incident under 

investigation and the officers' response was very brief. Second, the incident occurred 

after normal hours in a business or industrial area where there were no other people 

around and very little traffic. Third, the officers encountered Mr. Leach within 
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approximately one-quarter mile of the site of the reported break-in. Fourth, when the 

officers saw Mr. Leach, he was trying to conceal himself behind a car. Fifth, Mr. Leach's 

car matched the description of the car in the BOLO. Sixth, Mr. Leach's car was parked 

at an odd angle in the parking lot of an auto repair business that was closed for the day. 

Finally, Mr. Leach initially refused the officers' repeated commands to stand up and

show his hands.

Clearly, the totality of the foregoing circumstances gave Officer Gregoire 

and Officer Walker reasonable suspicion to believe that Mr. Leach was engaged in 

illegal activity. See State v. Augustyn, 490 So. 2d 104, 106 (Fla. 2d DCA 1986) (holding 

that the temporal proximity between the tip, the police response, and the sighting of the 

suspect was "[o]f crucial significance" to the determination of reasonable suspicion, and 

also noting that the location was not densely populated, "making it more reasonable to 

be suspicious of the van"); Austin v. State, 640 So. 2d 1247, 1248-49 (Fla. 5th DCA 

1994) (noting that factual information provided by a known informant that is imperfect 

can still be sufficient under the totality of the circumstances to provide an officer with 

reasonable suspicion (citing State v. Evans, 620 So. 2d 802, 803 (Fla. 2d DCA 1993))); 

see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("Our cases have also 

recognized that nervous, evasive behavior is a pertinent factor in determining 

reasonable suspicion."); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) ("Respondent's 

strange movements in his attempt to evade the officers aroused further justifiable

suspicion . . . ."). Applying the law to the facts of this case, we conclude that the officers 

had ample justification to suspect that Mr. Leach was involved in criminal activity and to 
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detain him briefly in order to make a further investigation. See Wardlow, 528 U.S. at 

125.

On the issue of the validity of the officers' initial stop, we conclude that 

Baggett, the case upon which Mr. Leach primarily relies, is easily distinguishable on its 

facts. The Baggett court held that neither the citizen informant's tip nor the officer's 

subsequent observations was "suggestive of any criminal conduct or linked Baggett to 

any burglaries or to any [suspicious] vehicle." 849 So. 2d at 1156-57. Under these 

circumstances, the court held that "the stop of Baggett was not justified because the 

circumstances did not create a reasonable suspicion that Baggett was involved in 

criminal activity." Id. at 1157. By contrast, in this case, both the informant's tip and the 

officers' subsequent observations strongly pointed to Mr. Leach as a suspect in the 

recent vehicle break-in. 

We note the trial judge's comments about the officers' actions in drawing 

their pistols when they initially confronted Mr. Leach. Under the particular 

circumstances present here, we believe that it was reasonable—if not required by police 

procedures—for the officers to draw their weapons. The officers were facing a felony 

suspect who was hiding behind a car at night in the parking lot of a closed business. 

The officers could not determine whether or not the suspect was armed. Leaving their 

weapons holstered while they reiterated their commands that Mr. Leach stand up and

show his hands would have put the officers at an unnecessary risk. See SaturninoBoudet v. State, 682 So. 2d 188, 191 (Fla. 3d DCA 1996) ("[T]he officer may detain the 
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individual even at gunpoint and/or by handcuffs for the officer's safety without converting 

the Terry[4] stop into a formal arrest.").

B. The Duration of the Stop and the Use of Handcuffs

We now turn to a consideration of the length of Mr. Leach's detention and 

the officers' use of handcuffs to restrain him. The trial court apparently concluded that 

the length of Mr. Leach's detention and the officers' use of handcuffs converted a stop 

that was valid at the beginning into an illegal detention. We disagree. The first question 

that we are called upon to determine is whether the detention of Mr. Leach for a few 

minutes while the officers waited for the citizen informant to travel to the scene for a 

show-up identification was justified.

Certain constraints on personal liberty that constitute 

"seizures" for purposes of the Fourth Amendment may 

nonetheless be justified even though there is no showing of 

"probable cause" if "there is articulable suspicion that a 

person has committed or is about to commit a crime." Such 

a temporary detention for questioning . . . is reviewed under 

the lesser standard enunciated in Terry v. Ohio, 392 U.S. 1, 

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and is permissible 

because of the "public interest involved in the suppression of 

illegal transactions in drugs or of any other serious crime."

Rodriguez, 469 U.S. at 5 (citation omitted).

Here, Officer Gregoire and Officer Walker had a well-founded suspicion 

that Mr. Leach was involved in the break-in of the truck at the remodeling business a 

short distance from their location. Mr. Leach's explanation for his presence in the 

parking lot of the closed business was doubtful at best and could not be verified. Under 

these circumstances, holding Mr. Leach for a few minutes to allow an eyewitness to 

 

4Terry v. Ohio, 392 U.S. 1 (1968).
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come to the scene and confirm whether or not Mr. Leach was the perpetrator of the 

vehicle break-in was entirely reasonable. See State v. Merklein, 388 So. 2d 218, 219-

20 (Fla. 2d DCA 1980) (holding that it was reasonable to detain the defendants for 

twenty to forty minutes pending the arrival of another officer, the robbery victim, and 

witnesses where the defendants and their automobile fit the radio description of two

attempted armed robbery suspects); Fernandez v. State, 57 So. 3d 915, 917 (Fla. 3d 

DCA 2011) ("[T]he detention was brief and was limited to the sole purpose of allowing 

the victims to be transported to where the defendant was being detained to conduct 

show-up identifications. . . . [W]e reject the defendant's contention that the police officer 

exceeded the scope of the temporary detention."); Saturnino-Boudet, 682 So. 2d at 191 

(rejecting the defendant's argument that his detention lasting thirty to forty minutes 

pending the arrival of a canine unit was the de facto equivalent of an arrest without 

probable cause); Bilinski v. State, 463 So. 2d 424, 425 (Fla. 3d DCA 1985) ("The 

defendants were not unlawfully in custody when they were identified by the eyewitness 

at a prompt on-the-scene police show-up . . . ."). It is worth remembering that in most 

scenarios such as the one in this case, the failure of the witness to identify a suspect 

paves the way for the detainee's prompt release.

Moreover, the officers' decision to handcuff Mr. Leach while they waited 

for the witness to arrive did not convert a valid investigatory detention into a custodial 

arrest. See Reynolds v. State, 592 So. 2d 1082, 1084 (Fla. 1992) ("Courts have 

generally upheld the use of handcuffs in the context of a Terry stop where it was 

reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to 

flee."); Studemire, 955 So. 2d at 1257 ("The use of handcuffs does not automatically 
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turn an investigatory stop into a de facto arrest."); Saturnino-Boudet, 682 So. 2d at 191 

(same). Here, Mr. Leach's attempt to conceal himself, his initial refusal to obey the 

officers' commands while they were pointing pistols at him, and his proximity to a car 

into which he might reach for a weapon or that he might use as a means of escape 

raised reasonable concerns for the officers' safety and the possibility that Mr. Leach 

might attempt to flee. Under the circumstances, it was reasonable for the officers to 

handcuff Mr. Leach during the brief, investigative detention while they waited for the 

witness to arrive.

V. CONCLUSION

To summarize, we hold that the officers' initial detention of Mr. Leach was 

supported by reasonable suspicion. The detention was not converted into a premature 

arrest either by the relatively brief duration of the detention or the officers' decision to 

place Mr. Leach in handcuffs while waiting for the eyewitness to arrive. For these 

reasons, the circuit court erred in granting Mr. Leach's motion to suppress. We reverse 

the order granting the motion to suppress, and we remand this case to the circuit court 

for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

KHOUZAM and SLEET, JJ., Concur.