County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Stop was proper where the defendant had been told by the police earlier that night not to drive because he was intoxicated; but two hours later the police received a call saying the defendant was now attempting to drive. – Judgment and sentence affirmed. Fink v. State, No. CRC 03-93 APANO (Fla. 6th Cir. App. Ct. Sept. 19, 2004).














v.                                                                                                                                                                   Appeal No. CRC 03-93 APANO









Opinion filed __________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge William Overton


J. Kevin Hayslett, Esq.

Attorney for appellant


Aaron Slavin, Esq.

Assistant State Attorney




            THIS MATTER is before the Court on the defendant, Jason Robert Fink’s, appeal from a judgment and sentence entered by the Pinellas County Court. The defendant pleaded no contest to DUI charges, reserving his right to appeal the trial court’s denial of his motion to suppress. The trial court made specific findings of fact in its written order. Those findings are entitled to deference and will not be reversed if they are supported by competent, substantial evidence. See Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). Application of the law to the established facts, however, is subject to de novo review. See Williams v. State, 769 So.2d 404 (Fla. 2d DCA 2000). After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The defendant claims that the trial court should have granted his motion to suppress because the officer who made the stop did not witness any improper driving or have any other basis to stop him. This Court disagrees.

            The police initially had contact with the defendant at approximately 2:00 A.M. on the night of the incident. The defendant was a passenger in a truck that had been stopped by the police. The driver of the truck was arrested for DUI. The police noticed that the defendant was also “clearly intoxicated.” So they called a taxi for him and ordered him not to drive the truck until he sobered up. With the permission of the employees of a 7-Eleven store, the truck was parked in their parking lot. Approximately two hours later the police received a call from one of the employees of that 7-Eleven, and that employee told the police that the defendant had come back and was driving the truck away. That information was forwarded to the officers on patrol. One of the officers who had initially had contact with the defendant earlier that night saw the truck being driven. He observed the truck being driven out of its lane, over the white solid line, and into the bicycle lane. Suspecting the driver was DUI, the officer made the traffic stop. The defendant was ultimately arrested for DUI.

            In this appeal, the defendant argues that the officer had no legal grounds to stop him. The defendant, however, focuses exclusively on the driving witnessed by the officer and ignores the contact the police had with him just two hours previous to the stop. Whether or not a search and seizure is justified is to be determined by the totality of the circumstances in light of the officer’s knowledge and experience. See Blesky v. State, 831 So.2d 803 (Fla. 4th DCA 2002). Just two hours prior to the stop, the officer who made the stop had briefly observed the defendant and noticed he had a strong odor of alcohol on his breath, his speech was slurred, and in the officer’s opinion was “clearly intoxicated.” The officer was concerned enough about the state of the defendant to obtain a taxi for him and specifically order him not to drive until he sobered up. Approximately two hours later, however, the employees of the 7-Eleven recognized the defendant driving up to the truck on a bicycle, putting it in the back of the truck, and driving off in the truck. They phoned the police with this information. Because of this information, the officer had a reasonable suspicion that the defendant was DUI.

 It was reasonable for the officer to suspect that the defendant had not yet sobered up, had defied his specific instruction, and was DUI. Although defense counsel attempts to make much of the fact that the officer did not specifically identify the driver of the truck as the same man who the officer had contact with two hours earlier before he made the stop, the officer was entitled to rely on the 7-Eleven employee’s statement that it was the same person. Moreover, given the observation of the somewhat suspect driving and the overall circumstances of the situation, the officer would have been justified in making an investigatory stop to determine if in fact the driver of the truck was the same person that he had contact with earlier that night. The stop was proper. It was, therefore,

appropriate for the trial court to deny the defendant’s motion to suppress.         

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

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




                                                                                                James R. Case

                                                                                                Circuit Judge






                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge






                                                                                                John A. Schaefer

                                                                                                Circuit Judge


cc:  State Attorney


       J. Kevin Hayslett, Esq.


      Judge Overton