County Criminal Court: CRIMINAL LAW Ė Search and Seizure Ė Stop

There was sufficient reason for the police to investigate the situation where they received a call near midnight to go to an area, and once there they found the defendant in car with the door open and sprawled in the driverís seat appearing to be either asleep or unconscious. Ė Judgment and sentence affirmed. Wiseberg v. State, No. CRC 02-21295 CFANO (Fla. 6th Cir. App. Ct. June 29, 2004).












††††††††††† Appellant,


Appeal No. CRC 02-21295 CFANO

†††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††††UCN522002CF021295XXXXNO





††††††††††† Appellee.




Opinion filed __________________.


Appeal from a decision of the

Pinellas County Court

County Judge Thomas Freeman


J.S. Lucas Fleming, Esq.

Attorney for appellant


C. Marie King, Esq.

Assistant State Attorney




††††††††††† THIS MATTER is before the Court on Kimberly Wisebergís appeal from a decision of the Pinellas County Court to deny her motion to suppress. [1]After reviewing the briefs and record, this Court affirms the decision of the trial court.

††††††††††† The defendant was charged with DUI. She pleaded no contest to the charges, reserving her right to appeal the denial of her motion to suppress. The defendant claims that the police had no basis to detain her.

††††††††††† The testimony was that near midnight the police received an anonymous phone call that there was a person passed out behind the wheel of a car at a particular location. When the police arrived they observed a car haphazardly parked, with the driverís side door open, the keys in the ignition, and the engine running. The officer approached the car and found the defendant sprawled back in the driverís seat, appearing to be either asleep or passed out. The defendant did not respond immediately when addressed by the officer. When asked for her driverís license and registration, she responded by giving him other items. Although there was no odor of alcohol, the officer was suspicious that the defendant might be impaired. The officer asked if she was on medication, and the defendant responded that she had taken Soma that afternoon. She also mentioned that she was recently upset in her personal life. The officer asked the defendant to submit to field sobriety exercises; which in the opinion of the officer the defendant did not perform properly. He arrested her for DUI. The trial court determined that the officer was correct in approaching the defendant, asking her to perform the exercises, and in arresting her. Therefore, the court denied the defendantís motion to suppress. The defendant is appealing that decision. The standard of review is de novo. See Cillo v. State, 849 So.2d 353 (Fla. 3d DCA 2003).

The defendant claims that the officer did not have justification to begin an investigation. She argues that she was breaking no law by simply being asleep in her car. In support of her argument she cites the case of Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). In Danielewicz the appellate court held that there was insufficient reason for the police to conduct an investigation when they encountered a driver seemingly asleep behind the wheel with the engine running. The court reasoned that there was insufficient evidence to support a belief that the driver was engaging in criminal activity. The trial court, however, distinguished Danielewicz by pointing out that in the case at bar the police were summoned there by a phone call.†††††††

This Court agrees with the trial court. In the case at bar there was sufficient evidence for the police to conduct an investigation. The police were called to the location. This was not a case of the police just being curious. Additionally, unlike the facts in Danielewicz, the driverís door was open. This Court concludes that this behavior, taken as a whole, is suspicious. The officer was justified in conducting an investigation. Indeed, the situation required an investigation. It was dangerous for the defendant to be in such circumstances that late at night.

††††††††††† The defendant also argues that there were legitimate reasons why she appeared impaired and could not perform well on the field sobriety exercises. She claims that her less than immediate response to the officer was consistent with someone just waking up. She contends that her poor performance on the field sobriety exercises was the result of her being significantly overweight. At trial the defendant could have raised these issues in her defense. Once the officer began his investigation, the defendantís unusual responses and behavior provided reasonable suspicion that she was impaired.

In addition, the defendant also claims that a reason for her seeming impairment was she took Soma earlier that day, and that Soma was not a controlled substance at the time of the incident. The fact that she blamed her condition on Somo does not deprive the officer of reasonable suspicion. As the State points out, the defendantís seeming impairment might have been caused by any number of things. The officer was not bound by the defendantís selection of the reason.

††††††††††† In summary, the officer had a reasonable suspicion that the defendant was in physical control of a motor vehicle while impaired. She was lawfully apprehended. Therefore, it was proper for the trial court to deny the defendantís motion to suppress.

††††††††††† IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2004.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† James R. Case

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Nancy Moate Ley

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† Circuit Judge



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

cc:State Attorney


†††††† J.S. Lucas Fleming, Esq.


†††††† Judge Freeman

[1] This matter was previously remanded to the trial court so that it could enter a written order denying the motion to suppress.