COUNTY CRIMINAL COURT; CRIMINAL LAW – Search and Seizure – Stop – Stop of motorist was proper where police saw the motorist continually drifting in, and out, of her lane, and officer testified that the pattern of driving was consistent with someone who was DUI. Judgment and sentence affirmed. State v. Bean, No. CRC 04-22 APANO, (Fla. 6th Cir.App.Ct. March 4, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

 

v.                                                                                                                                           Appeal No. CRC 04-00022 APANO

UCN522004AP000022XXXXCR

MELANIE RENEE BEAN

 

            Appellee.

___________________________/

 

 

Opinion filed ___________________.

 

 

Appeal from a decision of the

Pinellas County Court

County Judge William Overton

 

Marc Plotnick, Esq.

Assistant State Attorney

 

J. Kevin Hayslett, Esq.

Attorney for appellee

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court to grant the defendant’s motion to suppress. The standard of review of this order granting the motion to suppress is de novo. See Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The defendant was seen by the police at approximately 2:54 A.M. continually drifting in and out of her lane, at one point nearly hitting the curb. The police observed her for some time --- enough for her to approach and cross a causeway bridge and continue down the road on the other side. The drifting, however, did not interfere with other traffic; therefore, there was no traffic infraction. The officer, based on her training and experience, did, however, suspect that the driver might be impaired or possibly ill. The officer made a stop, and the defendant was ultimately charged with DUI. The defendant filed a motion to suppress, which was granted by the trial court. The State is appealing that decision.

            A review of the written order and transcript reveal that the trial court based its decision on the belief that weaving within a traffic lane was not sufficient reason to make a traffic stop. In support of its decision the court relied upon two cases: Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998) and O’Connell v. State, 7 Fla. L. Weekly Supp. 3b (Fla. 6th Cir.Ct. 2001). It is clear the trial court believed the issue was extremely close, and it was trying to reconcile those two cases with other case law on the subject. This Court has reviewed the briefs, both ably written, along with the applicable case law on the subject, and reaches the following conclusion. The stop in this case was proper.

            The decisive factor in this case is that the police officer who made the stop testified that, based upon her training and experience,                                                                                                                                                                         the driver’s behavior was consistent with someone who was impaired. The defendant did not contest this testimony. In other words, there was no testimony, expert or otherwise, that refuted the officer’s contention that, based upon her training and experience, the driving pattern of weaving within and perhaps slightly out of a driver’s lane is evidence that the driver is DUI. It is, of course, the trial court’s prerogative to weigh the credibility of the witnesses and resolve any disputes in the evidence. In this case, however, there is no indication that the trial court did not find the testimony of the officer to be credible. Thus, what this Court has to review is the police officer’s testimony that, based upon her training and experience, the defendant’s pattern of driving indicated that the defendant was committing the crime of DUI. Unrebutted evidence that indicates the defendant is committing a crime is sufficient to justify a traffic stop so that an investigation may be made.

The testimony of the officer that, based upon her experience and training, she believed the weaving indicated that the defendant was DUI was not clearly present in either the O’Connell or Crooks case that the trial court relied upon in making its decision to grant the defendant’s motion to suppress. Therefore, those two cases are not dispositive of the case at bar.

In Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So.2d 1171 (Fla. 2004), the Florida Supreme Court found it significant that the officer who made a traffic stop did not make the stop in an attempt to determine if the driver was ill, tired, or driving under the influence. The Court implied that the stop would have been proper if the officer had testified that he stopped the vehicle because the defendant’s driving raised such issues. Moreover, in Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999) the court held that the defendant’s “continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence. Thus, the facts supported the stop.” See also, Carillo v. State, 506 So.2d 495 (Fla. 5th DCA 1987).

 When “determining whether an officer possesses a reasonable suspicion of criminal activity to justify an investigatory stop, the totality of the circumstances must be taken into account.” Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998). The factors that may be considered include: “the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” Id.  In the case at bar, both the time of day (2:54 in the morning) and the unusual pattern of operation of the vehicle are two important factors that support the stop.

             Although there may be times when a single instance of erratic driving would be sufficient to justify a stop1, typically something approaching a pattern of unusual driving is required. To establish a pattern the police must generally observe the driver for more than just a short period of time. See Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003). The police are not, however, obligated to wait until the driver causes an accident. In the case at bar, the testimony showed that the officer observed the defendant for a sufficient amount of time to establish a pattern of unusual driving.

Certainly, the police may stop a motor vehicle when they have probable cause to believe a traffic infraction has occurred. See e.g., State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001). Also the police may stop a vehicle if they believe a crime has been committed. See e.g., Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998).

In addition, courts have consistently held that because of the inherent dangers of motor vehicle travel, the police may stop a vehicle even when there is no reasonable suspicion that the driver has, is, or is about to commit a crime. In fact, stops are permitted even though the driver has not even committed a traffic infraction. See Bailey v. State, 319 So.2d 22 (Fla. 1975)(because of the dangers inherent to our modern vehicular mode of life, the police may be justified in stopping a vehicle to determine the reason for its unusual operation); Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992)(a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine if the driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior).

Each motion to suppress must necessarily be resolved under the specific facts peculiar to that situation. This must be done on a case-by-case basis. However, as a general aid to the trial courts in making these very close decisions, a summary of the current state of the law is in order. First, if there is probable cause to believe a traffic infraction has been committed, the police may make a stop. Second, if there is no infraction but the driving is sufficiently unusual, the police may make a stop to determine if the driver is ill or tired, or to see if there is a problem with the vehicle. Third, if based upon the law enforcement officer’s training and experience, the officer testifies that the driving is consistent with the conduct of someone who is DUI, then a stop may be justified. Fourth, if the police believe any other crime has been committed, then they may make a stop. Generally, if the police stop the driver on the second and third grounds, the driving must have been observed for a sufficient period of time to support the conclusion of the police that the driving was not just an isolated incident but was approaching a pattern of unusual driving. The trial court of course reviews the totality of the facts to determine if the stop is valid. In reviewing the facts the court may weigh the credibility of the witnesses and resolve any conflicts in the evidence.

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is reversed, and this case is remanded to the trial court for action consistent with this Order and Opinion.

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

 

                                                                                    ________________________

                                                                                                James R. Case

                                                                                                Circuit Judge

 

 

 

 

                                                                                    _________________________

                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge

 

 

 

                                                                       

                                                                                    __________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

 

cc:   State Attorney

 

        J. Kevin Hayslett, Esq.

 

        Judge Overton



1 See Finizo v. State, 800 So.2d 347 (Fla. 4th DCA 2001).