County Criminal Court:  CRIMINAL LAW – DUI – Traffic Stop – defendant is entitled to de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court’s finding of probable cause – the standard used in determining whether the officer detained a person is objective:  whether a “reasonable person” would feel free to leave under the circumstances, not whether a person involved in a particular encounter is aware of the officer’s presence – denial of motion to suppress must stand since there is a theory or principle of law in the record to uphold the trial court’s ruling – videotape of traffic stop showed defendant illegally parked on the side of the road -- Order affirmed.  Chavarria v. State, No. 02-14774 CFANO (Fla. 6th Cir. App. Ct. Jan. 15, 2004). 











vs.                                                                                            Appeal No. CRC 02-14774 CFANO






Opinion filed ________________________


Appeal from Judgment of Guilt

Judge Shawn Crane


John D. Fernandez, Esquire

Attorney for Appellant


Misa A. Everist, Esquire

Attorney for Appellee





            THIS CAUSE came before the Court on appeal, filed by Robert B. Chavarria (Chavarria), from the Order Denying Defendant’s Motion to Suppress, entered April 4, 2002. Upon review of the briefs, the record, [1] including the video tape of the traffic stop, and being otherwise fully advised, the Court affirms the Order as set forth below.

            The undisputed facts are that at approximately 1:00 a.m. on October 14, 2001, Deputy Curtis Kindle, of the Pinellas County Sheriff’s Office, was on routine patrol when he received a BOLO (“be on the lookout”) that a potentially impaired driver had pulled off the side of the road in front of the La Quinta Inn on Ulmerton Road and 34th Street in Clearwater.  Deputy Kindle proceeded to that area and found a vehicle on the north side of Ulmerton Road facing westbound with a driver in the driver’s seat and the brake and rear lights illuminated.  The vehicle was situated in an area to the curbside of the traffic lane.  It was not off the roadway, but was outside the ordinary flow of traffic in what the trial court found to be a “safety zone.” [2]

            Deputy Kindle pulled behind the vehicle and activated his overhead lights for his own safety.  Deputy Kindle approached the vehicle and found Chavarria in the driver’s seat “passed out” and slumped over.  The gear selector was in reverse and Chavarria’s foot was on the brake.  Deputy Kindle tried to rouse Chavarria by knocking on the driver’s side window.  After approximately 10-15 seconds, Chavarria awoke and appeared to be attempting to drive off.  This would have resulted in the vehicle going in reverse, possibly striking Deputy Kindle’s cruiser.   Deputy Kindle reached inside the vehicle, moved the gear selector into park, turned the vehicle off, and removed the keys. [3]   Deputy Kindle noticed a strong odor of alcohol and other signs of impairment.  Chavarria was asked to exit the vehicle.  Chavarria failed the subsequent field sobriety tests and his blood alcohol level was 0.184 and 0.186, well over the 0.08 limit.  The Officer arrested Chavarria for DUI.

            Chavarria entered a plea of not guilty.  Chavarria then filed a Motion to Suppress, arguing that the initial traffic stop was unlawful as Deputy Kindle could not articulate a founded suspicion that the Chavarria was about to engage in criminal activity at the time Deputy Kindle activated his overhead lights. [4]   After a hearing, the trial court entered its order denying the Motion to Suppress.  The trial court found that the activation of the overhead lights did not result in an investigatory stop since Chavarria was “passed out” so he could not have been aware of the lights nor perceived the authority represented by the use of the lights.  In response to this ruling, Chavarria filed a Motion to Dismiss arguing that if Chavarria was “passed out” then he could not have been in actual physical control of his vehicle to support his arrest for DUI.  After this Motion was denied, Chavarria changed his plea to no contest, reserving his right to appeal. [5]

            On appeal Chavarria argues that the trial court erred in not granting his Motion to Suppress Evidence as the initial stop by Deputy Kindle was unlawful.  Additionally, assuming arguendo that the trial court’s ruling on the suppression motion was correct, Chavarria next argues that the case should have been dismissed since Chavarria could not have been in actual physical control of his vehicle if he was “passed out.” 

            In addressing the first issue, the Court reiterates that the underlying facts are without dispute.  However, in making a de novo review of the trial court’s application of the law to those facts, the Court finds that the trial court erred in concluding that the activation of Deputy Kindle’s overhead lights did not elevate what would have been a consensual encounter had the lights not been activated to an investigatory stop, due to Chavarria’s inability to see the overhead lights nor perceive authority represented by the lights.  See Nicholas v. State, 857 So.2d 980, 981 (Fla. 4th DCA 2003)(stating that a defendant is entitled to a de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court’s finding of probable cause).

            As stated in Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002), and the cases cited therein, the standard used in determining whether the officer detained an individual is objective: whether a “reasonable person” would feel free to leave under the circumstances, not whether a person involved in a particular encounter is aware of the officer’s presence.  In State v. Baldwin, 686 So.2d 682, 685 (Fla. 1st DCA 1996), the First District Court of Appeal succinctly explained that,

the test to determine whether a person has been “seized” by force or a show of authority is an objective test, “not whether the citizen perceived that he was being ordered to restrict his movement.”  California v. Hodari D., 499 So.2d 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690, 698 (1991).  The “reasonable person” test presupposes and innocent person.  Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389, 400 (1991); Jones v. State, 658 So.2d 178, 180 (Fla. 1st DCA 1995).


This “ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.”  See Bostick, 501 U.S. at 438, 111 S.Ct. at 2388 (1991)(citing Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 1980 (1988)). 

            Clearly, the suspect’s subjective degree of alertness is not relevant.  This Court could find no District or Supreme Court case law, in either State or Federal Court, finding that there is any specialized exception to this “reasonable person” test due to the defendant being “passed out” or asleep. [6]   Therefore, when Deputy Kindle activated his overhead lights he was conducting an investigatory stop, regardless of Chavarria’s ability to perceive the show of authority represented by the lights, and needed a well-founded suspicion that the driver had committed or was about to commit a crime.  See Errickson v. State, 855 So.2d 700, 702 (Fla. 4th DCA 2003)(reiterating that Florida courts consistently agree that an officer’s use of his or her emergency lights evidences an investigatory stop rather than a consensual encounter (citing Young, 803 So.2d at 882; Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999)).  There is not a “safety precaution” exception to this rule. [7]   See id. 

            Nonetheless, the Court finds that the Order Denying Defendant’s Motion to Suppress must stand as the record supports the trial court’s ruling.  See Florida Emergency Physicians-Kang and Associates v. Parker, 800 So.2d 631, 634 (Fla. 5th DCA 2001)(stating that “'[e]ven though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling”).  In viewing the video tape, this Court observed that Chavarria was parked or standing [8] at the right side of the roadway in an area clearly designated by white diagonal pavement markings.  Accordingly, in interpreting “the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling,” the Court finds that it cannot ignore the obvious: that this was not an area where Chavarria could “sleep it off” and that Chavarria was illegally parked.  See Nicholas, 857 So.2d at 981.  In reaching this conclusion, the Court gives no credence to the BOLO as it came from an anonymous tip that lacked any indicia of reliability.  See Jacoby v. State, 851 So.2d 913, 916 (Fla. 2d DCA 2003)(explaining that when an officer acts on an informant’s tip, the reliability of the information must be established before the officer can make an investigatory stop).  

            Thereafter, Deputy Kindle’s “seizure” of reaching into the vehicle, putting the vehicle into park, turning off the vehicle and then taking the keys was justified, given the immediate harm which may have resulted in the vehicle going backwards in what appeared to Deputy Kindle to be an attempt by Chavarria to drive off.  See Campbell v. State, 477 So.2d 1068, 1070 (explaining that under the “exigency rule” exception to a warrantless search, the reasonableness of police entry on private property is measured by existing circumstances). Additionally, once Deputy Kindle observed signs of impairment, including the strong odor of alcohol coming from inside the vehicle and Chavarria’s “very groggy” appearance and “extremely slow” movements, at least reasonable suspicion existed to conduct the field sobriety tests.

            In State v. Taylor, 648 So.2d 701 (Fla. 1995), the Court ruled that an officer has the authority to tell an individual to submit to field sobriety tests based on reasonable suspicion.  The totality of Deputy Kindle’s observations established probable cause for the subsequent arrest for DUI.  See Elliott v. State, 597 So.2d 916, 918 (Fla. 4th DCA 1992)(stating that probable cause to arrest and search exists when the totality of the circumstances more likely than not points to the commission of the crime).  As explained above, these observations and the subsequent seizure were lawful given the fact the Chavarria was unlawfully parked at the time Deputy Kindle activated his overhead lights.

            Lastly, the Court finds no error in the trial court’s denial of Chavarria’s Motion to Dismiss.  The record shows that material facts were disputed which mandated denial of the Motion.  See State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000)(explaining that the purpose of a motion to dismiss filed pursuant to Rule 3.190(c)(4) is to avoid a trial when there are no material facts genuinely in issue).  The fact the Chavarria was “passed out” does not mean that he cannot be found by a jury to be in “actual physical control” of his vehicle.  See e.g. Griffin v. State, 457 So.2d 1070, 1071 (Fla. 2d DCA 1984); Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988), aff’d on unrelated issue, 566 So.2d 768 (Fla. 1990); Mitchell v. State, 538 So.2d 106 (Fla. 4th DCA 1989).  

              Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Denying Defendant’s Motion to Suppress is affirmed and the denial of Chavarria’s Motion is Dismiss is affirmed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2004.




                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge






                                                                        IRENE SULLIVAN

                                                                        Circuit Judge





                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnished to:

Judge Shawn Crane

John D. Fernandez, Esquire

Misa A. Everist, Assistant State Attorney

[1] There is no transcript of the hearing before the trial court on Chavarria’s Motion to Suppress Evidence.  However, the parties’ Stipulation, filed July 17, 2003, provides that “the missing transcript is not necessary to review the alleged errors made by the trial judge in the proceedings below.”  Further, Chavarria states in his Response to Order Regarding Absence of Transcript, filed February 24, 2003, that the appellate record was reconstructed using the officer’s report, the trial judge’s findings of fact and Chavarria’s best recollection of events; Chavarria does not object to the State’s Statement of the Case and Facts.

[2] Despite Chavarria’s argument to the contrary, “safety zone” is specifically defined by statute as, “[t]he area or space officially set apart within a roadway for the exclusive use of pedestrians and so marked by adequate sign or authorized pavement markings as to be plainly visible at all times while set apart as a safety zone.”  See Fla. Stat. § 316.003(44).  Driving a vehicle through a safety zone is prohibited.  See Fla. Stat. § 316.1355.       

[3] In viewing the video tape of the traffic stop, the Court notes that the vehicle’s rear lights did not change after Deputy Kindle moved the gear selector into park suggesting that the vehicle was not actually in reverse.  However, the trial court’s finding that the brakes and reverse lights were on is presumed correct and neither party disputes this finding.

[4] The arrest affidavit states that the reason for the stop was that Chavarria was “passed out behind wheel.”

[5] The trial court did not enter a written order specifically denying Chavarria’s Motion to Dismiss, although it is undisputed the trial court heard, and denied the motion on the same day as Chavarria’s change of plea.  The Court declines to remand the matter for a separate written order as the issue is subsumptive to the Order Denying Defendant’s Motion to Suppress.

[6] Two Circuit Courts, sitting in their appellate capacity, have reached the opposite conclusion, including this Circuit, albeit by a different appellate judge who rendered the decision within the context of a civil appeal of an administrative DUI license suspension.  See Langley v. Department of Highway Safety and Motor Vehicles, Case N. 03-3444 (Fla. 6th Cir. App. Ct. Oct. 3, 2003)(finding that it was impossible for the driver to believe that he was not free to leave as the driver was passed out and completely incoherent when the officer activated his overhead lights);  see also State v. Hazel, 6 Fla. L. Weekly Supp. 204 (Fla. 20th Cir. App. Ct. Sept. 18, 1998)(finding that the fact the officer turned on his overhead lights for his safety did not transform the consensual encounter into an investigatory stop when the driver was “unconscious”).  We must respectively disagree with our colleagues in those cases.   

[7] The Court acknowledges the safety issues presented in this case.  Indeed the video tape shows vehicles traveling within a few inches of where Deputy Kindle was standing in his attempt to rouse Chavarria, even with his overhead lights on.  The Court would suggest that in such future scenarios, the responding deputy activate his/her spotlight, which has been determined not to transform a consensual encounter into an investigatory stop.  See Siplin v. State, 795 So.2d 1010, 1011 (Fla. 2d DCA 2001).  Additionally, the Court could find no prohibition against an officer using his emergency flashers.

[8] See Fla. Stat. §§ 316.003(27)(defining park or parking),(49)(defining stand or standing).