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[T] State v. Zeilinger5/28/2003
. The State appeals a judgment dismissing one count each of third-offense operating while intoxicated, operating with a prohibited blood alcohol concentration, and operating after revocation against Timothy Zeilinger. The trial court dismissed the charges after it determined the anonymous tip the police relied on to stop Zeilinger did not establish reasonable suspicion to justify the stop leading to his arrest. We agree with the trial court and therefore affirm the judgment.
Background
. On August 25, 2002, officer Eric Lehman of the Osceola Police Department and deputy Robert Rorvick of the Polk County Sheriff's Department both monitored a dispatch call reporting suspicious activity on State Highway 35. The dispatch was based on an anonymous tip. The informant called the police several times regarding the activity, eventually relating that some people were attempting to get a truck out of a ditch.
. Lehman proceeded to the area and noticed a white truck at a stop sign with a go-cart in the back and some weeds hanging from the undercarriage. Believing this to be the truck, Lehman turned onto 50th Avenue, where a man was waiting at the end of a driveway. The man told Lehman the white truck was the one stuck in the ditch. Lehman did not ask the man about the driver's possible intoxication nor did he inspect the area where the truck had reportedly been in the ditch.
. After speaking to the man, Lehman began to follow the truck. He did not observe any erratic driving or other traffic violations. Lehman then pulled the truck over. He noticed an odor of intoxicants on the truck's driver, Zeilinger. Shortly thereafter, Rorvick arrived and took over the stop. After performing field sobriety tests and a preliminary breath test, Rorvick arrested Zeilinger. The State charged him with operating while intoxicated, third offense, operating while revoked and operating with a prohibited blood alcohol concentration.
. Zeilinger moved to suppress the evidence obtained from the stop, arguing Lehman had no reasonable suspicion to stop him. After testimony from Lehman and Rorvick regarding the tip and stop, the court granted Zeilinger's motion, concluding the stop was improper. The court reasoned:
But with that whole line of cases on anonymous tips and on probable cause lead to the conclusion that the officer, in order to come in contact with the individual that you want to talk to, that you want to find out about, that you want to have a look-see at what they are doing, there has to be a reasonable suspicion that is articulable in court, and here the basis for the suspicion comes from an anonymous tip. An anonymous tip, which it's questionable whether there was anything other than there was suspicious activity which -in Rorvick's report-"after several calls they finally stated it was a pick-up truck in the ditch."
Neither officers' report mentions anything contained within the anonymous tip to dispatch that would indicate that there was a suspicion of intoxicated operation. If the truck was still in the ditch, as obviously it was at the time dispatch put out this call, there were two good reasons for the officers to go there and have contact.
Number one was protect the public. "Suspicious activity, we want to check it out." Number two, serve the public. "If this guy is in the ditch, needs help getting out of the ditch, let's figure out what he needs to get out of the ditch." Plenty of probable cause to go to that site originally, but once he's out there, the suspicious activity has stopped, the need to serve the public in terms of his dilemma being in the ditch has stopped. That situation no longer exists and you have to ha
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