IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

GIUSEPPE DiCOSOLA,

            Appellant,

vs.                                                                   Appeal No. CRC 00-05072 CFANO

STATE OF FLORIDA,

_________________________________/

Opinion filed _____________________.

Appeal from Denial of Defendant’s Motion to Suppress Evidence

County Judge Thomas B. Freeman

Richard N. Watts, Esq.
Attorney for Appellant

C. Marie King, Esq.
Assistant State Attorney
Attorney for Appellee

ORDER AND OPINION

            THIS MATTER is before the Court on the defendant’s appeal from the trial court’s denial of the Defendant’s Motion to Suppress Evidence.  After reviewing the briefs and record, this Court affirms the decision of the trial court.

Defendant’s motion sought to suppress all evidence gathered as the result of an illegal stop and subsequent investigative stop because there was no well-founded suspicion on the part of Deputy Marshall.  A trial court’s determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review.  Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997).  Furthermore, a ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.  Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978). 

On August 28, 1999, at approximately 2:45 a.m., Deputy E. Marshall of the Pinellas County Sheriff’s Office was driving by Bay Meadows, an apartment complex in the Feathersound area of Clearwater, Florida.  In the parking lot of the complex, the deputy observed the defendant’s green BMW convertible with the convertible top down, the windows down, the headlights on, the engine running, and the radio blaring.  There was no indication that there was any problem with the vehicle, and no traffic infraction was observed.

Concerned that the vehicle may be stolen, the deputy approached the vehicle and found the defendant unconscious in the driver’s seat.  At that point, the deputy was concerned that the defendant was either experiencing a medical problem or asleep.  Upon approaching the defendant in the open vehicle, the deputy detected an odor of alcohol, coming from the defendant, the defendant’s vehicle or both.  To silence the radio, which was playing very loud in a residential area at 2:45 a.m., and for the defendant’s safety, the deputy reached into the defendant’s vehicle and turned off the ignition.  The deputy then shook the defendant’s seat in an attempt to awaken the defendant, but to no avail.  The deputy then shook the defendant’s seat vigorously, which finally roused the defendant in what the deputy described as a confused state.  After assessing all his observations up to that point, including the odor of alcohol emanating from the defendant, his vehicle, or both, the deputy, suspecting the defendant might be DUI, asked the defendant to exit the vehicle and conducted a field sobriety test.  Thereafter, the deputy arrested the defendant for Driving Under the Influence.

At the hearing on the Defendant’s Motion to Suppress Evidence, the trial court found that the deputy had reasonable cause to stop and detain the defendant, and therefore, denied defendant’s motion stating “the officer smelled alcohol when he approached the vehicle which gave him cause to further consider since the keys were in the ignition.”

            The defendant’s argument on appeal is that the motion to suppress should have been granted because when Deputy Marshall made the stop there was neither a per se violation of traffic law, nor did the deputy have a well-founded suspicion of criminal activity.

            A police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.  Popple v. State, 626 So.2d 185 (Fla. 1993).  Mere suspicion is not enough to support a stop. Id., citing Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

            We find that Deputy Marshall’s initial contact with the defendant was not a traffic stop, but was a consensual encounter, which does not require a well-founded suspicion of criminal activity or an observation of a traffic law violation.  See Florida v. Royer, 460 U.S. 491 (1983);  State v. Wilson, 566 So. 585 (Fla. 2d DCA 1990).  There is no evidence that the defendant was initially prohibited from leaving.  Deputy Marshall neither stopped the defendant in the sense that the deputy activated his lights or siren, nor was any evidence introduced to show that the defendant’s vehicle was blocked by the deputy’s vehicle.  The deputy clearly articulated that his encounter with the defendant was initiated by the deputy’s concern that the defendant’s vehicle may be a stolen vehicle, considering the fact that it was, as the deputy described, a “fancy” vehicle, that initially appeared to be abandoned at 2:45 in the morning with the engine running, the lights on and the radio blaring.  After approaching the vehicle and observing the defendant unconscious behind the wheel, the deputy then became concerned that the defendant was either experiencing medical problems or asleep.  The deputy then reached into the vehicle to turn off the ignition for two reasons: to turn off the blaring radio, and for the defendant’s safety, not to prevent the defendant from leaving to evade the officer.  Furthermore, there was no evidence that the deputy removed the keys from the ignition after turning it off.

Having determined that the initial contact between Deputy Marshall was a consensual encounter, we must now determine whether the deputy had the requisite well-founded suspicion that the defendant had committed, was committing, or was about to commit a crime to provide the deputy with justification for elevating the contact from a consensual encounter to an investigatory stop.  The founded suspicion necessary to justify a stop must be based upon the totality of the circumstances as viewed by an experienced officer.  Williams v. State, 2000 WL 1224751 (Fla. 2d DCA 2000).

The circumstances existing immediately prior to the deputy asking the defendant to exit his vehicle were as follows: the defendant’s vehicle was found at 2:45 a.m. in an apartment complex parking lot with the headlights on, the keys in the ignition, the engine running, and the radio blaring.  When the deputy approached the vehicle, he found the defendant passed out in the driver’s seat, with an odor of alcohol coming from the defendant, the defendant’s vehicle or both.  The deputy had to vigorously shake the defendant’s car seat to awaken him, and when he did, the defendant woke up with a confused expression.  At that point, the deputy suspected the defendant was DUI.  Furthermore, deputy Marshall, who had attended a forty-hour training course on the subject of DUI arrests, and had approximately 17 years of experience apprehending DUI drivers, was very experienced with identifying persons DUI.

Although not cited by either the defendant or the State, we are mindful of the court’s holding in Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999), the facts of which are nearly identical to the present case, but are clearly distinguishable.  In Danielewicz, an officer with the Clearwater Police Department pulled into the parking lot of the Bombay Bicycle Club, a restaurant/bar, at 1:30 a.m., and saw, in addition to other vehicles in the lot, the defendant’s car parked in a legal parking space near the rear of the business.  The headlights were on and the engine was running.  No traffic infraction was observed by the officer, and he had no reason to believe there was any problem with the vehicle.  As the officer approached the vehicle, he saw that water was condensing on the windows from the air conditioner.  He looked inside the car and saw Danielewicz in the driver’s seat.  She appeared to him to be asleep. The officer knocked on the window to get her attention.  Danielewicz looked at the officer, but did not open her locked door.  The officer then asked her to get out of the car.  She did not do so until the officer asked her five times.  After she unlocked the door and got out of the car, the officer gathered evidence, which led to her arrest for driving under the influence.

Danielewicz’s defense counsel filed a Motion to Suppress Evidence of DUI alleging that the officer’s contact was an illegal stop.  The trial court found that the contact instigated by the officer was an investigative stop and that it was lawful.  On appeal, the Second DCA agreed that when the officer ordered Danielewicz out of the car an investigative stop occurred, but found the stop unlawful.  In finding the investigative stop was not based on a well-founded suspicion, the court found the following facts dispositive:

1.  While the officer suspected Danielewicz was inebriated because she was asleep in her car, he also stated that people sleep in their cars without criminal implication.

2. The officer did not testify that he was concerned for the driver’s personal health.

The facts in this case that distinguish it from Danielewicz to the extent that this case is not bound by the decision in Danielewicz are as follows:

1. The deputy testified that he was initially concerned the defendant’s vehicle was stolen.

2. The deputy testified that when he saw the defendant unconscious in the driver’s seat he was concerned for the drivers’ personal health

3. The defendant’s car was a convertible with the top and the windows down, therefore allowing the deputy to better view the defendant, and to smell the odor of alcohol.  The deputy’s view was not obstructed by condensation on the windows.

4. The deputy had to shake the defendant’s seat vigorously to awaken him, as opposed to just knocking once on the window. 

5.  When the deputy roused the defendant, he had a confused expression.

6. The deputy smelled an odor of alcohol coming from the defendant, his car or both.

7. The deputy testified at the hearing that based on his observations, and prior to asking the defendant to exit his vehicle, the deputy assessed the Defendant as DUI.  

We therefore find that Deputy Marshall, through plain view and smell, had the requisite well-founded suspicion that the defendant was or was about to become involved in criminal activity, to wit, Driving Under the Influence.  This well-founded suspicion thereafter justified deputy Marshall instructing the defendant to exit his car, and to conduct field sobriety tests.  Since the stop as well as the search and seizure were legal, the trial court correctly denied the Defendant’s Motion to Suppress Evidence.   It is therefore

ORDERED AND ADJUDGED that the trial court’s denial of the Defendant’s Motion to Suppress Evidence is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this ______ day of October, 2000.

Copies furnished to:

The Honorable Thomas B. Freeman

Richard N. Watts, Esq.
1300 Ninth Street North
St. Petersburg, Florida 33705

C. Marie King
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 33758