County
Criminal Court: Criminal Law – Search and Seizure – Evidence
–Police justified by pulling behind parked vehicle that had its lights on and
engine running in response to a call to investigate a suspicious vehicle. Entry
into the vehicle justified when defendant failed to wake up after officer
knocked on window numerous times and noticed what appeared to be dried vomit on
driver’s door. Judgment and sentence affirmed. Head v. State, No. CRC
03-8 APANO, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
EDWARD D. HEAD, III
Appellant,
v. Appeal No. CRC 03-8 APANO
UCN522003AP000008XXXXCR
STATE OF
Appellee.
____________________________/
Opinion filed _______________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Shawn Crane
Dan Duryea, Esq.
Attorney for appellant
Derek Reams, Esq.
Assistant State Attorney
THIS MATTER is before the Court on Edward Head’s appeal from a judgment and sentence entered by the Pinellas County Court. The defendant pleaded no contest to DUI charges. He reserved his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment and sentence.
The defendant claims his motion to suppress should have been granted because the police had no right to detain him. At approximately 2:30 A.M. the police received a call to investigate a suspicious SUV parked in a public parking lot with someone inside. When the officer arrived at the scene, he observed the suspect vehicle and saw that it had its lights on and its engine running. There was a man inside the vehicle. The officer parked his car behind the suspect vehicle and went to investigate. As he approached the vehicle, he observed the defendant, who appeared to be either asleep or passed out, lying in the driver’s seat with the seat reclined. The officer also saw what appeared to be vomit on the outside of the driver’s door. All of the vehicle’s windows were closed. The officer attempted to wake the defendant by knocking on the widow glass several times (the officer testified that he knocked approximately fifteen times). The only response was the defendant lifting his head slightly and then laying it back down. The officer then tapped on the glass and shined his light inside the vehicle. The defendant only picked up his head and laid it back down again. At that point the officer became concerned for the defendant’s welfare, so he opened the driver’s door. Upon making contact with the defendant, the officer noticed a strong odor of alcohol and other indicia of impairment. The defendant was ultimately arrested for DUI.
A
trial court’s determination of reasonable suspicion to conduct an investigatory
stop or detention is subject to de novo
review. Ornelas v.
The defendant argues that the officer’s initial act of pulling his cruiser behind the defendant’s vehicle --- thereby preventing him from leaving --- was a stop and that it was made without sufficient reason. This Court does not agree with the defendant that the police officer’s act of pulling his cruiser behind the defendant’s car was a stop in this case. In order for there to be a stop under these circumstances, the detainee must at least be aware that he is being stopped. Although the defendant argues that he would have been prevented from leaving because the officer parked his cruised behind him and there was an obstacle that would have prevented him from driving forward, the defendant’s argument is merely hypothetical. It has nothing to do with the facts of this case. The defendant does not contest the fact that he was completely unaware that there was a police cruiser behind his vehicle. Neither does he argue that he attempted to leave but was prevented by the officer’s cruiser. The outcome of this case should not depend upon where the officer parked his car. Particularly when it was behind someone who was unconscious or asleep and who had no idea the officer was even there. This Court holds that before the defendant can claim to have been unlawfully detained or stopped in circumstances such as these where the police merely park behind the defendant’s vehicle, the defendant must at least be aware that he is being stopped or detained.1
The second argument raised by the defendant is that the police had no right to open the car door because the officer did not have a well-grounded suspicion of criminal activity. In support of his argument, the defendant cites to Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). In Danielewicz the appellate court reversed the trial court’s denial of a motion to suppress. In Danielewicz a police officer pulled into a public parking lot and saw the defendant’s car legally parked in the parking lot. He saw that the headlights were on, the engine was running, and the air conditioner was running. When he looked inside he saw that the defendant was in the driver’s seat and appeared to be asleep. The officer knocked once on the window, and the defendant looked at the officer, although she did not open her door. At that point the officer ordered the defendant out of
the car. She was subsequently arrested for DUI. The appellate court found that the officer had seized the defendant when he ordered her out of the car, and that the officer did this without the required well-founded suspicion of criminal activity.
Danielewicz,
however, is quite different from the case at bar. In the case at bar, the officer testified
that he opened the car door because he thought the defendant might be ill. In
addition, there appeared to be vomit on the passenger side of the vehicle ---
an indication that the defendant might be ill. Contrast that to the Danielewicz
case where there was no evidence of vomit, and where the appellate court
specifically stated: “[t]he officer did not testify that he was concerned for
the driver’s personal health.”
In the case at bar, the officer testified that although he knocked several times on the vehicle’s window and shined his light into the inside of the vehicle, the defendant failed to respond other than to raise his head. The officer testified that the defendant was not responding in the way one would expect of someone who was just sleeping. The officer “wasn’t satisfied with the way that he was responding to my trying to get him to look up at me. Or my concern was that he may have had a seizure or something like that.” T 59. In Danielewicz, the officer only knocked once, and the defendant appeared to immediately acknowledge the officer’s presence.
In addition, in the case at bar the officer approached the defendant because he was responding to a call about a suspicious vehicle with someone inside. But in Danielewicz there was no call to investigate, it seems the officer was just attracted to the parked car with its headlights on and engine running and suspected that there might be a DUI.
Although at first glance the case at bar and the Danielewicz case appear to be similar, a closer analysis of the circumstances surrounding the incidents reveals that the two cases are quite different. This Court holds that Danielewicz is distinguishable from the case at bar.
Next, the defendant argues that the discrepancies between the trial court’s written findings and the actual testimony demonstrate that the trial court did not base its decision upon substantial competent evidence. This Court does not agree. The discrepancies are essentially inconsequential, and in no way demonstrate that the trial court failed to understand the testimony or the argument of counsel.
Finally,
the defendant claims that the trial judge exceeded his authority by vigorously
questioning the defendant’s witnesses and asking questions of the officer that
were designed to elicit information that might support the stop. Trial judges
are allowed wide latitude in asking questions during motion to suppress
hearings. See, e.g., Am Jur. 2d Witnesses §698, Permissible Extent of Court’s
Examination (2004); Ashbury v. State, 765 So.2d 965 (
IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.
DONE
AND ORDERED in Chambers at
__________________________
Nancy Moate Ley
Circuit Judge
__________________________
R. Timothy Peters
Circuit Judge
__________________________
John
A. Schaefer
Circuit Judge
cc: State Attorney
Dan Duryea, Esq.
Judge Crane
1
This Court is aware of the contrary decision reached by another appellate panel
of this Circuit in Chavarria v. State, No. 02-14774 CFANO (