IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

†OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

ERIK BORRESEN,

††††††††††† Appellant,

 

vs.†††††††††††††††††† ††††††††††††††††††††††† ††††††††††† ††††††††††† Appeal No. CRC 01-11556 CFANO

 

STATE OF FLORIDA,

††††††††††† Appellee.

_________________________________/

 

 

Opinion filed March 18, 2002.

 

Appeal from denial of defendantís Motion to Suppress

Pinellas County Court

County Judge J. Thomas McGrady

 

Scot E. Samis, Esq.

Attorney for Appellant

 

Shawn R.H. Smith, Esq.

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendantís appeal from the trial courtís denial of the defendantís Motion to Suppress.† After reviewing the briefs and record, this Court affirms the trial courtís decision.

 

STANDARD OF REVIEW

ďAppellate 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.Ē† Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).† Furthermore, ďa 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.Ē† Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).†

 

FACTUAL AND PROCEDUAL HISTORY

††††††††††† On October 13, 2000, at approximately 12:30 a.m., Officers David Disano and Michael Egulf of the St. Petersburg Police Department (SPPD) DUI Enforcement Unit were summoned to the 300 block of 20th Avenue North in St. Petersburg by Sergeant Sotolongo, also of the SPPD, in reference to an individual found asleep in a vehicle in park with the engine running.† When officers Disano and Egulf arrived at the scene, Sergeant Sotolongo was present with his vehicleís flashers on.† Also present was another DUI investigator, Officer Huntington, who was there for videotaping purposes.

††††††††††† The vehicle in question was facing east on 20th Avenue, approximately 30 feet from the intersection, partially on the road and partially on the side of the roadway on property owned by the City of St. Petersburg.† There is no curb at that location.† The roadway abuts directly with the cityís property known as Sunken Gardens.† There were no ďno parking signsĒ where the vehicle was located, and there is street parking throughout the area.† The 300 block of 20th Avenue is a residential roadway that is undivided, but allows for traffic in both east and west directions.† The vehicle was situated in a manner that it would impede the flow of traffic in the eastbound direction.† If another vehicle were traveling eastbound on the same on the road, if would have to go around the vehicle or it would strike the vehicle.

††††††††††† Officers Disano and Egulf approached the defendantís vehicle and were able to observe the defendant sleeping behind the wheel with the windows up.† Officer Disano knocked on the driverís side window numerous times and was able to waken the defendant who rolled down the driverís side window.† Officer Disano asked the defendant for his registration, driverís license and proof of insurance.† As Officer Disano asked the defendant to produce his documentation, he detected an odor of alcohol on the defendantís breath and observed that the defendant had bloodshot, watery eyes, slurred speech and a flushed face.† The officer observed that, while searching for his driverís license, the defendant passed over it several times and finally attempted to hand the officer an employee identification card.† The officer asked the defendant whether he had been drinking that evening and the defendant admitted that he had approximately three to four beers.† The officer then asked the defendant to step out of the vehicle and conducted a DUI investigation, which led to the defendantís arrest for DUI.

††††††††††† The defendant filed his Motion to Suppress contending that the stop and investigation was not founded upon reasonable suspicion, and therefore, all evidence obtained in connection with, and subsequent to, the stop should be suppressed.

In denying the motion to suppress, the Court stated:† ď...I guess the distinction I see in this case is heís at least partially obstructing traffic based upon the testimony I have heard.† And I have to take this in the light most favorable to the State.† Seeing a person passed out with the engine running at that hour of the morning in a residential neighborhood, I would expect and I would want the police officers to at least check it out; and when they check it out, then the reasonable suspicion occurs.Ē

Finally, the Court noted for the record, ďThat no officer testified that he was concerned for the safety or whether the driver may be ill, and you may want to use that if you appeal.Ē

On July 12, 2001, the Defendant entered a no contest plea to the charge reserving his right to appeal the dispositive order denying his Motion to Suppress.

ISSUE

††††††††††† The defendantís issue on appeal is as follows: Does a person found sleeping in a legally parked car give rise to a reasonable suspicion of criminal activity sufficient to justify an investigatory stop?

 

ANALYSIS

††††††††††† It is clear from the record, and as pointed out in the defendantís brief, that the officersí actions amounted to an investigatory stop.† The defendant, when he awoke, found himself in the presence of four members of the St. Petersburg Police DUI enforcement squad, at least one of whom had the flashers of his vehicle turned on, one who was banging on his window with a flashlight, and another trying to videotape the events.† A reasonable person in the defendantís position would not feel free to leave under those circumstances. See, Popple v. State, 626 So.2d 185 (Fla. 1993).† The question therefore is whether the investigatory stop was lawful.

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.† Id.† Furthermore, ďthe courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behaviorĒ.† State Depít of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992).† 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, 769 So. 2d 404 (Fla. 2d DCA 2000).

As indicated, the officers came upon a vehicle at 12:30 in the morning, with the car running, the windows rolled up, and the driver asleep or unconscious behind the wheel.† The car was at least partially obstructing the flow of traffic.† Several reasonable assumptions could be made by anyone coming upon the scene: the driver was asleep, ill, a crime victim, attempting suicide, or the car was broken down.† The totality of the circumstances present in this case as viewed by the two experienced officers warranted a brief investigatory stop, not only for the defendantís welfare, but also for the welfare of others traveling that roadway.†

Once they were able to awaken the defendant, the officers then reasonably asked the defendant to produce his license, registration, and proof of insurance.† While the defendant attempted to locate his documentation, the officers detected several indicators of impairment, which justified the officerís request for the defendant to step out of the car and perform field sobriety tasks.

The defendant in his brief cites to Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999), and argues that the Second District has directly and unambiguously ruled that a police officerís observation of a defendant apparently asleep behind the wheel in a legally parked with the engine running is insufficient to establish a well-founded suspicion that the person was about to become involved in criminal activity so as to justify an investigative stop.

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 defendantís 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 driverís 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 DUI.

Danielewiczís defense counsel filed a Motion to Suppress Evidence of DUI alleging that the officerís 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 driverís personal health.

In this case, the following factual differences distinguish it from Danielewicz to the extent that this case is not bound by the courtís ruling in Danielewicz:

1. The defendantís vehicle, although not illegally parked, was partially on the road and partially on the side of the roadway on property owned by the City of St. Petersburg, in a manner that would impede the flow of traffic in the eastbound direction.† It was not legally parked in a parking lot.† If another vehicle were traveling eastbound on the same on the road, if would have to go around the vehicle or it would strike the vehicle.

2. Both Officer Egulf and Officer Disano testified that the defendantís car was parked in a place that they would stop to investigate if they initially encountered the car.

3. Officer Disano had to knock on the driverís side window numerous times to awaken the defendant, instead of knocking only once.

4. The defendant initially rolled down the driverís side window allowing the officers the ability to observe him.

5. As Officer Disano asked the defendant for his registration, driverís license and proof of insurance, he detected an odor of alcohol on the defendantís breath and observed that the defendant had bloodshot, watery eyes, slurred speech and a flushed face.† In Danielewicz, the officer did not observe signs of impairment until the defendant was ordered out of the car

6. While searching for his driverís license, the officer noticed that the defendant passed over it several times and finally attempted to hand the officer an employee identification card.

7. The officer asked the defendant whether he had been drinking that evening and the defendant admitted that he had approximately three to four beers.

8. It was after Officer Disano took into account all of these facts that he then asked the defendant to step out of the vehicle.† In Danielewicz, the officer initially asked the defendant to get out of the car.

Lastly, the defendant argues that the trial judge applied the wrong standard.† In denying the Motion to Suppress, the trial judge stated that he had to take the facts in a ďlight most favorable to the State.Ē† However, ďa conclusion or decision of a trial court will generally be affirmed, even when based on erroneous reasoning, if the evidence or an alternative theory supports it.Ē† Caso v State, 524 So.2d 422 (Fla. 1988).† We find that the evidence supports the trial courtís decision.

CONCLUSION

We find that when the record is viewed in the light most favorable to upholding the decision of the trial judge, the officers had well-founded suspicion to stop the defendant and investigate the defendant for DUI.†

It is therefore

ORDERED AND ADJUDGED that the trial courtís denial of the defendantís Motion to Suppress Evidence is AFFIRMED.

††††††††††† DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 18th day of March, 2002.

 

 

__________________________

NANCY MOATE LEY

Circuit Judge
Primary Appellate Judge

 

___________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 ___________________________

R. TIMOTHY PETERS

Circuit Judge

 

Copies furnished to:

 

The Honorable J. Thomas McGrady

 

Scot E. Samis, Esq.

P.O. Box 1511

St. Petersburg, Florida 33731-1511

 

Shawn R.H. Smith, Esq.

Assistant State Attorney