County Criminal Court: CRIMINAL LAW – Search and Seizure – Officer’s observation of defendant’s driving provided officer with an objective basis to initiate a traffic stop, further investigation was warranted to ascertain defendant’s 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 Defendant’s 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 defendant’s appeal from the trial court’s Order Denying the Defendant’s Motion to Suppress.  After reviewing the briefs and record, this Court affirms the trial court’s 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 defendant’s 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 “swerved almost straight into the curb.”  Based upon the defendant’s 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 defendant’s breath.

            On denying the defendant’s 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 defendant’s 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 defendant’s unusual driving pattern and the officer’s 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. 

            “Appellate 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 court’s application of the

law to the facts.”  Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).  Futhermore, when reviewing a trial judge’s 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 Magnani’s observation of the defendant’s 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 defendant’s driving behavior, an investigatory stop by Officer Magnani was warranted to ascertain the defendant‘s 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 court’s findings that the officer had a reasonable suspicion to stop the defendant’s vehicle.  It is therefore

ORDERED AND ADJUDGED that the trial court’s Order Denying the Defendant’s 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