County Criminal Court:  CRIMINAL LAW – DUI – traffic stop – traffic stop was lawful from the totality of the circumstances observed by arresting officer before activating his overhead lights – appellant was observed speeding, swerving in his lane and failed to use turn signals – officer testified that he suspected defendant was impaired and expressed concern for other traffic -- Order affirmed.  Tooke v. State, No. 03-00003 APANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004). 

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARK BRADLEY TOOKE,

                        Appellant,

 

vs.                                                                                            Appeal No. CRC 03-00030 CFANO

                                                                                                UCN522003AP000030XXXXCR

STATE OF FLORIDA,

                        Appellee.

__________________________________/

 

Opinion filed _______________________

 

Appeal from Order Denying

Defendant’s Motion to Suppress

Judge Shawn Crane

 

J. Kevin Hayslett, Esquire

Attorney for Appellant

 

Derek Reams, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Mark Bradley Tooke (Tooke), from the Order Denying Defendant’s Motion to Suppress (Order), entered February 10, 2003, after which Tooke entered a plea of no contest to the charge of DUI, reserving the right to appeal.  The standard of review of the trial court’s application of the law to its factual findings is de novo, but the Court must defer to the trial court’s factual findings if supported by competent substantial evidence.  See Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003).  Accordingly, upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Order as set forth below.

            The record shows that at 1:00 a.m., on March 11, 2001, Tooke was stopped by Sergeant Renault of the Largo Police Department.  Sergeant Renault first observed Tooke traveling at a high rate of speed southbound on U.S. 19.  Sergeant Renualt estimated that the vehicle was traveling approximately 75 m.p.h. in a 55 m.p.h. zone.  Sergeant Renault attempted to catch up to get a pace but, before he could do so, the vehicle exited U.S. 19 and made a U-turn onto Frontage Road.  Sergeant Renault followed the vehicle and observed Tooke straddling the center lane divider, “smack dab in the middle of the road,” for approximately 100 feet.  Tooke swerved a couple of times, as if he were going to turn, and veered back out into his lane of travel.  Tooke then turned onto 150th Avenue North without using his turn signals, after which Sergeant Renault initiated the traffic stop. 

            Upon making contact with Tooke, Sergeant Renault smelled the odor of alcohol and noticed several other signs of impairment, including that Tooke’s speech was slurred and that his eyes were bloodshot.  Tooke failed the subsequent field sobriety tests and was arrested for DUI.  After being read the implied consent warning, Tooke refused to take the breath tests.  Sergeant Renault also issued Tooke a citation for failure to maintain a single lane.

            On appeal, Tooke argues that there is not competent substantial evidence to support the trial court’s ruling as the trial court relied on additional factors not relied on by Sergeant Renault in conducting the traffic stop.  Tooke’s argument is premised on Sergeant Renault’s testimony that he followed Tooke for approximately 100 yards as Tooke was straddling both lanes of traffic and “[a]t that point, [1] I prepared to initiate a traffic stop.” (emphasis added).  However, “preparing” to initiate a traffic stop is obviously not the equivalent of actually doing so.  Indeed, his testimony immediately thereafter clarifies that Sergeant Renault did not initiate the traffic stop until after Tooke turned onto 150th Avenue.  Therefore, Tooke’s driving behavior up to the time that Sergeant Renault activated his overhead lights was properly considered by the trial court.  The Court finds that in viewing the totality of the circumstances as set forth above, coupled with Sergeant Renault’s experience and training, Sergeant Renault had the requisite founded suspicion to conduct a lawful traffic stop. See Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999)(enumerating factors to be considered by the officer prior to conducting a traffic stop are: time of day, the day of the week, the location, the physical appearance of the suspect, the behavior of the suspect, the appearance and manner of operation of any vehicle involved and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge).

            The Court also finds that the trial court properly applied the case law to the facts of this case.  As set forth in the Order, Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002), and Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), are distinguishable from the present case.  A key factor in both appellate decisions, which concluded that the underlying traffic stop was unlawful, is that there was no evidence or testimony presented that the arresting officer believed the driver to be intoxicated or impaired.  Likewise, in the recent Florida Supreme Court in Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 2004 WL 306051 (Fla. 2004), the Court upheld the trial court’s finding that the stop was not lawful as there was nothing in the record to indicate that the arresting officer thought the driver was impaired.  Conversely, Sergeant Renault testified that he feared, based on his observations, that Tooke may be impaired and also expressed a safety concern for other drivers who may be traveling on 150th Avenue, a two-lane highway, in the opposite direction.  Accordingly, the Court finds that the trial court correctly applied the law to the facts of this case in denying Tooke’s motion to suppress.

Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Denying Defendant’s Motion to Suppress is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2004.

           

 

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

                                                           

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

 

 

Copies furnished to:

Judge Shawn Crane

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  34625

 

Derek Reams, Assistant State Attorney

[1] The Court notes, as pointed out by the State, that Sergeant Renault frequently used this phrase throughout his testimony, thus reducing the grammatical potency this phrase might have had if it had only been used once.