County Criminal Court:  CRIMINAL LAW – DUI – traffic stop – changing lanes more than once with directional on is not sufficient for an investigatory stop-an appellate court will not substitute its judgment for that of the trial court on  the credibility of the witnesses and the weight to be given to the evidence-no evidence officer  was concerned for other traffic -- Order affirmed.  State v. Greenless,  No.  04-1930CFAES (Fla. 6th Cir. App. Ct. January 18, 2005).  













                        Appellant,                                             Case No: 04-1930CFAES



MARIA CRUZ GREENLESS,                                     





Appeal from Pasco County Court


County Judge Marc Salton


Michael Harris, Esq.

Attorney for Appellant


Curtis M. Crider, Esq.  

Attorney for Appellee




            THIS MATTER is before the Court on the State of Florida's appeal of the trial court's order granting a Motion to Suppress. After reviewing the briefs and record, this Court affirms the trial court’s decision.

            Deputy Morano of the Pasco County Sheriff's Office testified that he works in the DUI squad.  On November 14, 2003, he was conducting traffic control on U.S. 19 .  The deputy explained that as he traveled northbound on U.S. 19, he observed defendant's vehicle traveling southbound.  It was approximately 1:45 am. He testified that both he and defendant were traveling approximately 40 mph. He observed the defendant driving in the left hand lane with her left directional on.  He noticed that the driver was slouched and appeared to be intoxicated with two hands on the wheel and gazing into the roadway.  The deputy turned around to follow her. Morano explained that he followed her approximately two tenths of a mile and observed her vehicle go from the left lane to the middle lane and right back to the left lane and then approach state road 52 at the traffic light.  The vehicle then went into the left most turn lane at 19 and 52.  During this entire time, the vehicle had its left directional on.  Morano testified that both the way she was positioned and the way she drove the vehicle were indicators of impaired driving. Morano believed the driving was poor enough to conduct a stop before an accident occurred. 

            The deputy testified that there were no other vehicles around and no other vehicles were affected by the defendant's lane changes.  When the court inquired about the lane change, the judge asked ". . . there is no weaving or swerving or anything like that?"  At that point, Morano responded that it was a "weaving-type driving" and that it did not appear to be a deliberate lane change.  The deputy did not cite defendant for failing to maintain a lane.

            The trial court granted the motion for several reasons.  First, the court cited to the fact that throughout the deputy's testimony he described defendant's behavior as a lane change up until the court asked a question with regard to "weaving."  At that point, the deputy then described the behavior as weaving.  The trial court found that this diminished the officer's testimony. Additionally, the court found no more than a bare suspicion. At the hearing and in the trial court's order, the judge found the defendant's actions more consistent with a person who was unsure of where she was to turn.  

            The trial court has "the superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d 1155, 1159 (Fla. 1998). Thus, so long as its decisions are supported by competent, substantial evidence, an appellate court will not substitute its judgment for that of the trial court on  the credibility of the witnesses and the weight to be given to the evidence.  Id.


IT IS THEREFORE ORDERED that the judgment is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January,  2005.


                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge




                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:

Office of the State Attorney

Curtis M. Crider, Esq