the Circuit Court in and for the Sixth Judicial Circuit
Pinellas County, Florida
STATE OF FLORIDA,
vs. Appeal No. CRC 01-05037 CFANO
LARRY ALAN HANSEN,
Appeal from Order Granting Motion to Suppress
Pinellas County Court
County Judge William H. Overton
Wendy L. Pepper, Esq.
Assistant State Attorney
Attorney for Appellant
Scot E. Samis, Esq.
Attorney for Appellee
THIS MATTER is before the Court on the state’s appeal from the trial court’s order granting the defendant’s Motion to Suppress. After reviewing the briefs and record, this court affirms the trial court’s decision.
STANDARD OF REVIEW
“Appellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court's application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). 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 September 30, 2000, Officer Ferro and Officer Hayes of the Indian Shores Police Department approached a parked vehicle at 190th Avenue and Gulf Boulevard on Indian Shores Beach. Inside the vehicle, they found a sleeping passenger and no driver. Just then, the defendant staggered towards the officers on foot. Officer Hayes noted that the defendant had the odor of alcoholic beverages coming from his breath, slurred speech, and bloodshot eyes. The officers determined that the defendant was with the passenger, they had both been drinking, and they were attempting to visit a friend who was not at home. Officer Hayes performed the Horizontal Gaze Nystagmus task on the defendant and observed six clues out of four. Since the officers had not seen either of the men driving up to this point, and both the defendant and the passenger told the officers that they would be calling someone to pick them up, the officers left the scene without taking any further action.
Approximately two hours later, Officer Hayes observed the same silver Mercedes being driven on Gulf Boulevard. Officer Hayes verified the license plate number and activated his emergency lights to initiate a traffic stop. Officer Hayes testified that the reason for the stop was to do a “welfare check” on the occupants of the vehicle to make “sure that neither one of them were driving.” The officer admitted that he did not see any driving infraction and that the vehicle pulled over without incident.
Upon making contact with the occupants of the vehicle after the stop, the defendant was found to be driving. The defendant subsequently failed field sobriety tasks and was arrested for DUI.
Defendant filed his Motion to Suppress arguing that the officer who stopped the defendant lacked probable cause and/or founded suspicion to initiate a traffic stop. In granting the defendant’s Motion to Suppress the trial court found that there was no unusual operation of the defendant’s vehicle prior to the stop. Furthermore, the court found that the officer did not know who was behind the wheel, and stopped the vehicle to verify that the defendant was not behind the wheel.
ANALYSIS AND CONCLUSION
The issue on appeal is whether the trial court erred in suppressing evidence of the defendant’s performance of field sobriety tasks and breath alcohol level by ruling that there was no founded suspicion to make a stop of his vehicle not withstanding the fact that officers had observed him exhibiting classic signs of impairment approximately two hours earlier. In it’s brief, the state argues that a well-founded suspicion existed to warrant the stop of the defendant’s vehicle based on the officer’s testimony that when they initially made contact with the defendant he was exhibiting classic signs of impairment; and the officers, two hours later, saw the same vehicle and initiated a traffic stop to ensure the defendant was not driving.
Our analysis begins with the determination that the officer’s stop of the defendant’s vehicle was an investigatory stop since, as confirmed by Officer Hayes, they were investigating to determine whether the defendant was in fact driving. A well-founded suspicion of criminal activity is necessary to justify an investigatory stop. Berard v. State, 731 So.2d 768 (Fla. 2nd DCA 1999); White v. State, 737 So.2d 1117 (Fla. 2nd DCA 1999).
Here, Officer Hayes admitted that he observed no indication of criminal activity as he followed the defendant’s vehicle prior to the stop. The only reason he could give for the stop was that he had encountered the defendant earlier that night, who appeared intoxicated, and stopped the car only to ensure that the defendant was not driving. In other words, the officer stopped the car merely to ascertain the identification of the driver.
A police officer may not stop a vehicle in order to ascertain the identity of the driver without a proper founded suspicion of criminal activity. In Crew v. State, 738 So.2d 352 (Fla. 2nd DCA 1999), Tampa police officers had information that a particular suspect used a teal green truck to pick up packages containing drugs from a specific house. After they had arrested another suspect with the package, the police were able to find out where the owner of the teal green truck lived. They staked out his residence until a man got in the truck and drove away. They stopped the truck and found evidence that led to an arrest. In ordering suppression, the court noted that the police had not observed evidence of criminal activity, and that the sole purpose of the stop was investigatory-to ascertain the identify of the driver. This was insufficient and improper in Crew and is similarly improper in this case. In effect, Mr. Hansen’s car was pulled over so that the officer could ascertain his identity; i.e., whether he was the same person that he had seen intoxicated two hours earlier. When the officer observed the car on the road two hours later (giving plenty of time for a third party to come get the two men), he had no reasonable suspicion that the person being stopped (i.e., the driver of the car) was engaged in criminal activity. In fact, any suspicion that the defendant was behind the wheel would have been dispelled by the fact that the officer observed no improper driving, since according to the officer, the defendant was highly intoxicated two hours earlier.
In Payne v. State, 654 So.2d 1252 (Fla. 2nd DCA 1995), a police officer observed three people walking through a convenience store parking lot near midnight. The officer testified that they appeared to be intoxicated or arguing. The three crossed the lot and got into two separate cars, at least one of which was partially occupied. The officer radioed to another cruiser to stop the car. As it left the lot, the original officer saw it spin its wheels, and the second officer saw the car driving with its headlights off for a short time. The stop led to an arrest. In ordering the evidence suppressed, the appellate court ruled that the officer did not have a founded suspicion of criminal activity to justify the stop of the car. It was not enough that he thought the people getting into the car might have been intoxicated because there was no testimony that the driver was one of those people.
By comparison, the officer in the case at bar had even less to justify a stop. He did not observe the defendant getting into the car or driving away. Further, he had evidence that the defendant would not be driving because someone was coming to take him home. Then, when he saw the car two hours later, the officer did not see any improper driving or other indication of criminal activity.
This Court notes that with minimal inconvenience, the officer in this case might have avoided making an illegal stop by pulling alongside the suspect vehicle to see if the man he had observed earlier was driving. As an alternative, he could have continued to follow the car to observe possible signs of driver impairment. He did neither. Instead, he made an illegal stop, as was properly ruled by the trial court.
In its brief, the state focuses on the officer’s encounter with the defendant two hours earlier, when he was told that somebody was coming to get them. These observations of a person outside the subject vehicle two hours earlier without any evidence that the same person was driving the subject vehicle later does not amount to reasonable suspicion. The impropriety of the stop is further illustrated by Officer Hayes characterizing the stop as a “welfare check to make sure that neither one of those two gentlemen were driving the vehicle.” Hence, he was not investigating a reasonable suspicion of criminal activity, but rather making a stop to be sure that criminal activity was not occurring. These facts are insufficient to justify the officer’s investigatory stop. The lower court’s suppression order is proper and should be upheld.
ORDERED AND ADJUDGED that the trial court’s order granting the defendant’s Motion to Suppress is AFFIRMED.
DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 18th day of March, 2002.
NANCY MOATE LEY
Primary Appellate Judge
W. DOUGLAS BAIRD
R. TIMOTHY PETERS
Copies furnished to:
The Honorable William H. Overton
Wendy L. Pepper, Esq.
Assistant State Attorney
Scot E. Samis, Esq.
P.O. Box 1511
St. Petersburg, Florida 33731-1511