County Criminal Court:  APPELLATE PROCEDURE – Principles of Procedure – dispositiveness of motion to suppress – trial judge has obligation to determine whether issues raised in motion to suppress are dispositive – Order and conviction affirmed.  Dulus v. State, No. 02-15001 (Fla. 6th Cir. App. Ct. April 28, 2003).

 

County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress – length of detainment in rear of police cruiser – trial court did not err in denying motion to suppress – appellant was visibly intoxicated on scene, attempting to flee, intersection was busy and dangerous – temporary detention of 30-45 minutes was reasonable response to demands of situation – detention was necessary to prevent appellant’s escape and to conclude accident and DUI investigations – detainment did not amount to de facto arrest – Order and conviction affirmed.   Dulus v. State, No. 02-15001 (Fla. 6th Cir. App. Ct. April 28, 2003).

 

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

APPELLATE DIVISION

 

MICHAEL DULUS,

                        Appellant,

 

vs.                                                                          APPEAL NO:  CRC02-15001CFANO

 

STATE OF FLORIDA,

                        Appellee.

                                                                      /

 

Opinion filed April ____, 2003.

 

Appeal from a decision of the

County Court for Pinellas County;

Robert J. Morris, Judge, and

William H. Overton, Judge.

 

Roger D. Futerman, Esquire

Attorney for Appellant.

 

Hayward Dykes, Jr., Esquire

Assistant State Attorney.

 

ORDER AND OPINION

 

In the lower court, Dulus pleaded no contest to driving under the influence (DUI) after the trial judge denied his motion to suppress.  He was convicted and sentenced to one year probation, assessed various fines and costs, and his driver’s license was suspended for one year.  His argument on appeal is twofold.  He contends that the pat-down search of his person was improper as law enforcement lacked a good faith basis to believe that he was armed and dangerous.  He also asserts that the duration of his detainment in the back of the police cruiser while handcuffed was unlawful.  We affirm.

In Connor v. State, 803 So. 2d 598 (Fla. 2001), the Florida Supreme Court clarified that appellate courts must accord lower court rulings on motions to suppress “a presumption of correctness ... with regard to the ... determination of historical facts.”  Id. at 608.  However, “mixed questions of law and fact that ultimately determine constitutional issues” are subject to independent, de novo review.  Id.   In this case, the trial judge orally denied the motion; a signed order was entered to the same effect.  However, the trial judge who heard the motion made no factual findings of record.  As such, we must review the testimony de novo to determine the mixed questions of law and fact.

The testimony presented to the trial court on the motion to suppress was as follows.  On February 9, 2002, Officer Doswell of the Pinellas Park Police Department was dispatched, at approximately 9 p.m., to the scene of an accident involving significant damage to the victim’s vehicle but no personal injuries.  Upon arrival, Officer Doswell observed that a Pinellas County Sheriff’s deputy was already on scene.  In exchanging custody, the Sheriff’s deputy informed Officer Doswell that, according to the victim and the on-scene witnesses, Dulus caused the accident and then attempted to flee the scene but was prevented from doing so by the victim and witnesses.  Further, he informed Officer Doswell that he performed a pat-down search on Dulus, which revealed no weapons, but that he did locate tools in the bed of Dulus’ truck that could be used in a threatening manner.  Finally, he informed Officer Doswell that he detained Dulus with handcuffs in the rear of his cruiser for being combative and verbally abusive.

In transferring Dulus to his own cruiser, Officer Doswell observed that he was unable to communicate coherently, could not stand on his own, and had slurred speech.    Subsequently, Officer McNeil arrived on the scene, after which Officer Doswell assigned the case over to him.  Dulus was then unhandcuffed and released to Officer McNeil for a DUI investigation.  Pursuant to that investigation, Dulus failed the field sobriety and breathalyzer tests. 

The first issue we must discuss is jurisdictional.  In State v. Ashby, 245 So. 2d 225 (Fla. 1971), the Florida Supreme Court held that a defendant in a criminal case may plead no contest conditioned on his right to preserve a question of law for appellate review.  Subsequently, the Florida Supreme Court narrowed that holding in Brown v. State, 376 So. 2d 382 (Fla. 1979), by ruling that “an Ahsby nolo plea is permissible only when the legal issue to be determined on appeal is dispositive of the case.”  Id. at 384 (finding that motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are all dispositive, but that a motion seeking to suppress a confession is not).  

Here, the record before us does not reflect that the trial judge found the issues to be dispositive. [1]   Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988) (holding that the trial court “is obligated to determine the dispositive nature of the reserved question,” and that the mere acknowledgment that the defendant reserved an issue for appeal does not suffice).  Nor does the record reflect that the State stipulated to the dispositiveness of the issues.  Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980).  It may be that had the trial judge granted the motion, the State would have proceeded to trial on other evidence.  See e.g., Sune v. State, 402 So. 2d 11 (Fla. 3d DCA 1981) (issues on motion to suppress not dispositive because evidence to same effect was available through witness testimony).

In his brief, Dulus states that he entered his plea specifically reserving the right to appeal the denial of the motion to suppress.  He also asserts that the trial judge found the motion to be dispositive.  In support of the latter statement, he cites to R34-37.  That record cite, however, refers to the Judgments of Guilt and Orders of Probation, which contain only boilerplate language.  Moreover, the plea form, which indicates Dulus pleaded guilty, does not reflect that he reserved the right to appeal the denial of his motion to suppress. 

Although the record is devoid of any finding that the issues were dispositive, the “murky” record on appeal suggests that Dulus entered his plea with the understanding that the issues were dispositive.  Therefore, as was done in Everett, we shall review the issue of whether the detainment was permissible; we shall not, however, review whether the pat-down search was authorized.  We find that the issue of whether law enforcement was permitted to conduct a pat-down search of Dulus is clearly not dispositive for the simple reason that no physical evidence was confiscated from his person.  A finding by this court that the pat-down search was not permissible would have no bearing on the admissibility at trial of the field sobriety or breathalyzer test results, or on witness testimony. 

At the suppression hearing, the Sheriff’s deputy, who was first on the scene, did not testify. [2]   Instead, Officer Doswell testified, without hearsay objection, as to what the Sheriff’s deputy communicated to him when he arrived on the scene.  That testimony is indicated above.  As to Officer Doswell, he explained that he briefly detained Dulus, who he thought was visibly intoxicated, because the witnesses told him that Dulus was attempting to flee the scene.  He also explained, on redirect, that he detained Dulus for officer safety, and for Dulus’ own safety (i.e., “he wasn’t in a condition to be able to walk around” [a busy traffic intersection]). 

Officer Doswell testified that Dulus had been detained in the rear of the Sheriff’s deputy’s cruiser for “less than 30 minutes.”  He testified that Dulus was detained in his own vehicle for “less than 15 minutes.” 

Based upon a de novo review of the evidence presented below, we find that competent evidence exists to conclude that the temporary detention of Dulus was “a reasonable response to the demands of the situation.”  Reynolds v. State, 592 So. 2d 1082, 1084 (Fla. 1992).  In part, it was necessary to thwart Dulus’ attempt to flee.  Id.   In other part, it was necessary to conclude the accident and DUI investigations, which required eliciting assistance from other officers.  State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990).  There was no evidence presented to suggest that law enforcement failed to diligently pursue the accident or DUI investigations.  

In conclusion, we find that the duration of Dulus’ detainment was reasonable under the circumstances.  See Saturnino-Boudet v. State, 682 So. 2d 188 (Fla. 3d DCA 1996) (finding that temporary detention of a defendant for 30-40 minutes to await arrival of canine unit based on founded suspicion of drug activity was part of lawful Terry stop and not a de facto arrest); State v. Nugent, 504 So. 2d 47 (Fla. 4th DCA 1987) (holding that 30-minute detention did not transform Terry stop into arrest); Finney v. State, 420 So. 2d 639, 643 (Fla. 3d DCA 1982) (“Given the right to stop the vehicle, under the circumstances, the officers were justified in detaining the defendant for approximately ninety minutes.”); State v. Merklein, 388 So. 2d 218, 219 (Fla. 2d DCA 1980) (finding that it was reasonable for officers to detain the defendants for 20 to 40 minutes pending arrival of another officer, robbery victim, and witnesses); cf. Goss v. State, 744 So. 2d 1167 (Fla. 2d DCA 1999) (finding that handcuffing the defendant and placing him in the back of the patrol car during an investigatory stop was not justified where the State “introduced no testimony or evidence showing a reasonable necessity for this action, either for officer safety or to prevent Goss from fleeing.”).

We reject Dulus’ argument that his detention amounted to a de facto arrest.  The cases to that effect typically involve the defendant’s removal from the scene, which did not occur here.  See Saturnino-Boudet, 682 So. 2d at 193 (“Where, however, the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring probable cause of prior judicial authorization.”); Goss, 744 So. 2d at 1168 (“The cases recognizing a de facto arrest generally involve physical removal from the scene and transportation, not just temporary placement, in a patrol car.”); see also State v. Rivas-Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996) (finding defendant de facto arrested for DUI where he was handcuffed, placed in patrol car, and transported back to the police station for questioning).

We affirm the trial judge’s ruling on the motion to suppress.  However, we remand with directions for the clerk to correct the scrivener’s error on the plea form. [3]

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.

 

                                                                        ____________________________________

                                                                        JOHN A. SCHAEFER, Circuit Judge

 

 

                        ____________________________________

                                                                        W. DOUGLAS BAIRD, Circuit Judge

 

cc:        Roger D. Futerman, Esquire

            State Attorney’s Office             ____________________________________

                                                                        NANCY MOATE LEY, Circuit Judge



[1]    We note that the change of plea and sentencing hearing from August 22, 2002 was not transcribed for purposes of appeal. 

[2]    We note that the State should have called the Sheriff’s deputy to testify at the suppression hearing.  He was the first officer on the scene, and was the first law enforcement officer to detain Dulus.

[3]    The plea form indicates that Dulus pleaded guilty, while the Judgments of Guilt and Orders of Probation, along with the briefs on appeal, indicate that Dulus pleaded no contest.