LESLIE R. SITKO,
vs. Appeal No. 99-6783-CI-88A
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY & MOTOR VEHICLES,
This cause came before the Court on the Petition For Writ Of Certiorari, the Response and the Reply. Upon consideration of the same, the Court finds that the Petitioner has raised one issue in his Petition.
1. The issue raised in the Petition For Writ Of Certiorari is whether the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), denied the Petitioner a fair hearing by failing to invalidate the Petitioner’s driver’s license suspension because there was not a reasonable suspicion of impairment to conduct a traffic stop by law enforcement.
2. After a review of the record, including the video of the traffic stop, the Court finds the Department’s Order, entered September 7, 1999, is not supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995). There was no reasonable suspicion or objective basis with which to justify the traffic stop of the Appellant. Crooks v. State of Florida, 710 So.2d 1041, 1042 (Fla. 2d DCA 1998). As the Appellant was not lawfully stopped, he was therefore not lawfully arrested for DUI. Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1351 (Fla. 2d DCA 1992).
3. The record shows that on July 15, 1999, at approximately 11:40 p.m., Corporal Nalven, of the Pinellas County Sheriff’s Office, was parked in his police vehicle at the Alley Cats Cafe talking on his cell phone, when Appellant exited the restaurant and found his vehicle blocked by Corporal Nalven’s. Upon Corporal Nalven moving his vehicle, Appellant backed up and proceeded to leave the parking lot. Corporal Nalven testified that the Appellant was being “very cautious” and driving “extremely slow” while leaving the parking lot and that it appeared the Appellant was “aware of my presence.” Corporal Nalven then decided to follow Appellant’s vehicle, which was recorded on video, and testified that the Appellant was “weaving in his lane, jerking back and forth.” After following Appellant for approximately two minutes, some of which was spent sitting at a red light, Corporal Nalven conducted a traffic stop.
4. In order to effect a valid traffic stop for DUI, the officer need only to have a “founded” or “reasonable” suspicion of criminal activity. See DeShong, 603 So.2d at 1352 (citations omitted). Courts have held that observing erratic or unusual driving behavior may provide a founded suspicion to justify a traffic stop. See id. However, in the present case, after watching the video a number of times, the Court was unable to find that the Appellant’s driving behavior was in any way erratic or unusual. The Appellant was not weaving or jerking back and forth. To the contrary, the Appellant appears to be driving lawfully and safely, as in using turn signals when appropriate and making proper lane changes. Unlike the driver in DeShong, the Appellant did not use the line markers to position his vehicle and did not abruptly slow down or speed up.
Additionally, this Court finds that driving slow through a restaurant parking lot would not objectively create a reasonable suspicion of impairment. Further, nothing in the record indicates that the Appellant’s driving behavior created a reasonable safety concern. See Crooks, 710 So.2d at 1043. Rather, it appears that Corporal Nalven was acting on a “mere” suspicion, or “hunch”, that Appellant may have been drinking prior to exiting this particular establishment at that time of evening. However, mere suspicion is not a founded suspicion and has no objective justification. Noorigan v. State of Florida, 2000 WL 291557 (Fla. 4th Cir. Ct.)(citing State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).
5. Appellant’s driving behavior is not what got the attention of Corporal Nalven initially, but rather that Appellant had to wait while Corporal Nalven’s moved his police cruiser from blocking the Appellant’s vehicle. The record further shows that the Appellant was aware that Corporal Nalven was a police officer and Corporal Nalven followed Appellant from the parking lot, which may have affected Appellant’s driving behavior. See State of Florida v. Davidson, 744 So.2d 1180, 1181 (Fla. 2d DCA 1999).
6. This Court finds that the Appellant’s driving pattern did not objectively establish a founded or reasonable suspicion of impairment to warrant a traffic stop and there was no other objective basis for suspecting that the Appellant was impaired. Therefore, the Department’s conclusion that Appellant was lawfully arrested is not supported by competent, substantial evidence.
It is therefore,
ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is granted and the Department’s Order, entered September 7, 1999, is quashed.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 5th day of July 2000.
CHARLES W. COPE
Circuit Judge, Appellate Division
Copies Furnished To:
Thomas G. Tripp, Esquire
4930 Park Boulevard, Suite 12
Pinellas Park, FL 33781
Attorney for Petitioner
Heather Rose Cramer, Esquire
Assistant General Counsel
Florida Dept. of Highway Safety & Motor Vehicles
2330 South Congress Avenue, Suite 2G
West Palm Beach, FL 33406
Attorney for Respondent
Bureau of Driver Improvement
2814 East Hillsborough Avenue
Tampa, FL 33610
Staff Attorney, Appellate Division