County Criminal Court: Criminal Law Ė Search and Seizure Ė Evidence ĖPolice 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 driverís door. Judgment and sentence affirmed. Head v. State, No. CRC 03-8 APANO, (Fla. 6th Cir.App.Ct. May 4, 2005).









††††††††††† Appellant,


v.                                                                                                                                           Appeal No. CRC 03-8 APANO




††††††††††† 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 Headís 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 driverís seat with the seat reclined. The officer also saw what appeared to be vomit on the outside of the driverís door. All of the vehicleís 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 defendantís welfare, so he opened the driverís 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 courtís determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review. Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997). ďAppellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial courtís application of the law to the facts.Ē Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).

††††††††††† The defendant argues that the officerís initial act of pulling his cruiser behind the defendantís 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 officerís act of pulling his cruiser behind the defendantís 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 defendantís 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 officerís 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 defendantís 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 courtís denial of a motion to suppress. In Danielewicz a police officer pulled into a public parking lot and saw the defendantís 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 driverís 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: ď[t]he officer did not testify that he was concerned for the driverís personal health.Ē Id. at 364.

In the case at bar, the officer testified that although he knocked several times on the vehicleís 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 ďwasnít 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.Ē T 59. In Danielewicz, the officer only knocked once, and the defendant appeared to immediately acknowledge the officerís 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 courtís 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 defendantís 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 ß698, Permissible Extent of Courtís Examination (2004); Ashbury v. State, 765 So.2d 965 (Fla. 4th DCA 2000). A review of the transcript does not reveal that the trial judge crossed over the line from neutrality to advocacy. The transcript reveals that the trial judge was essentially just attempting to understand the testimony and clarify certain pertinent matters. The result of the decision was not altered based on any of the trial courtís questions. Moreover, there was no objection made by defense counsel during the hearing.

††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of May, 2005.





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††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________________
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 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 (Fla. 6th Cir. App. Ct. Jan. 15, 2004). In that case the Court found that the standard to determine whether or not an individual was stopped or detained was objective, not subjective. In other words, it did not matter if the individual defendant believed he was detained, but what a ďreasonable personĒ would believe. However, this Court believes that the correct standard is whether or not a reasonable person who was asleep or unconscious would believe that he was not free to leave.