County Criminal Court: CRIMINAL LAW Ė Search and Seizure Ė Officerís observation of defendantís driving provided officer with an objective basis to initiate a traffic stop, further investigation was warranted to ascertain defendantís welfare.Delorey v. State, No. 03-17 (Fla. 6th Cir. App. Ct. April 3, 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

HAROLD T. DELOREY, III,

††††††††††† Appellant,

 

vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††† CRC02-10328CFANO

 

STATE OF FLORIDA.

††††††††††† Appellee.

____________________________/

 

Opinion filed: ________________

Appeal from Order Denying Defendantís Motion to Suppress

Pinellas County Court

Judge William H. Overton

 

David R. Gemmer

Attorney for Appellant

 

Susan M. Mitchell

Assistant State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

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

††††††††††† On November 18, 2001, Officer Peter Magnani with the St. Petersburg Police Department observed the defendant traveling northbound on 4th Street in the 1700 block.The officer stated that the defendantís vehicle swerved halfway into the center lane and then back to the median lane.The officer observed the defendant straddle the lane for a few feet.The officer continued to follow the defendant as the defendant made a correct turn from 4th Street onto 38th Avenue.As the defendant continued on 38th Avenue, the officer observed the defendant almost swerve into the curb.The officer testified that the motion was very distinct and that the defendant ďswerved almost straight into the curb.ĒBased upon the defendantís driving, the officer testified that he suspected that the driver might be intoxicated or have a vehicle problem or some type of medical issue.Officer Magnani initiated a traffic stop of the defendant and began a DUI investigation once he approached the vehicle and smelled liquor on the defendantís breath.

††††††††††† On denying the defendantís Motion to Suppress, the trial court found that there was no traffic violation, per se.However the trial court found that there was evidence of two factual patterns before the court of the defendantís driving.One was the swerve in a jerky motion, basically straddling the center line and the subsequent swerve in a jerky motion of almost hitting the curb.The trial court reasoned that the defendantís unusual driving pattern and the officerís testimony that he stopped the vehicle because he believed the person was either under the influence or had some medical problem was sufficient to find that the officer had a reasonable suspicion for the stop of the vehicle.

††††††††††† ďAppellate review of a motion to suppress involves questions of both law and fact and the appellate court must make a de novo review of the trial courtís application of the

law to the facts.ĒRosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).Futhermore, when reviewing a trial judgeís factual findings, appellate courts must determine whether competent, substantial evidence supports the ruling.Vagas v. State, 737 So.2d 1206 (Fla. 2d DCA 1999).

††††††††††† The defendant argues that the officer did not have a reasonable suspicion to initiate a traffic stop.However, Officer Magnaniís observation of the defendantís driving, even if it did not rise to the level of a traffic offense, did provide an objective basis to initiate a traffic stop.See Department of Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992) (holding that in order to effect a valid traffic stop for DUI, an officer need only a founded or reasonable suspicion of criminal activity).Furthermore, after observing the defendantís driving behavior, an investigatory stop by Officer Magnani was warranted to ascertain the defendantĎs welfare.See DeShong, 603 So.2d at 1352 (stating that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop of a vehicle 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 behavior); see also Bailey v. State, 319 So.2d 22, 26 (Fla. 1975) (stating that because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its operation).

††††††††††† Therefore, this Court finds that there was substantial evidence in the record to support the trial courtís findings that the officer had a reasonable suspicion to stop the defendantís vehicle.It is therefore

ORDERED AND ADJUDGED that the trial courtís Order Denying the Defendantís Motion to Suppress is affirmed.

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

 

 

 

________________________________

JOHN A. SCHAEFER

Primary Appellate

Circuit Judge

 

 

 

_________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

__________________________________

NANCY MOATE LEY

Circuit Judge

 

 

Copies furnished to:

 

Judge William H. Overton

 

David Gemmer

Attorney for Appellant

 

Susan M. Mitchell

Assistant State Attorney

Attorney for Appellee