County Criminal Court: CRIMINAL LAW Ė Search and Seizure Ė Stop Ė Police officerís observation over time of defendant continuously weaving out of lane while driving very slowly over bridge justified stop. Order granting motion to suppress reversed. State v. Revilla, No. CRC 04-58 APANO, (Fla. 6th Cir.App.Ct. Sept. 13, 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.

Case No. CRC 04-58 APANO

UCN522004AP000058XXXXCR

JOHN REVILLA

 

††††††††††† Appellee

____________________________________/

 

Opinion filed ________________.

 

Appeal from an order of the

Pinellas County Court

County Judge William Overton

 

C. Marie King, Esq.

Assistant State Attorney

 

Timothy Weber, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

††††††††††† (J. Sullivan)

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order granting the defendantís motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.

††††††††††† Approximately 3:00 A.M. a police officer observed the defendant drifting out of his lane several times before reaching a bridge. The officer noticed that the defendantís vehicle was being driven very, very slowly. The defendant was driving a Hummer, which is a large and wide vehicle. Upon reaching the bridge, which was under construction, the defendant drove over the double-yellow line substantially into the oncoming traffic lane. The officer testified the defendantís left tires were completely over the double-yellow line the entire length of the bridge. There was, however, no traffic on the bridge at the time. Once the defendant crossed over the bridge, he proceeded to again drift back and forth between traffic lanes. When he crossed another bridge by again driving in the oncoming traffic lane, the officer believed he had seen enough and made a stop. The defendant was ultimately arrested for DUI. The defendant filed a motion to suppress all evidence obtained after the stop, claiming the stop was illegal. The trial court granted the defendantís motion to dismiss, and the State is appealing that ruling.

††††††††††† The officer was justified in making the stop for a variety of reasons. First, the officer had an objective basis that the defendant was DUI. In Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999) the court held that the defendantís ďcontinuous 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.Ē See also, Carillo v. State, 506 So.2d 495 (Fla. 5th DCA 1987); State v. Bean, No. CRC 04-22 APANO (Fla. 6th Jud. Cir. App. Ct. March 9, 2005). Similarly, the defendantís driving here involved substantial weaving. Even while going very, very slowly the defendant drifted numerous times out of his lane. The officer observed this for a sufficient amount of time to establish a pattern. The drifting was not one or two instances, it was several times.

Reviewing the written order granting suppression, it is obvious that the trial court was placing great emphasis on OíConnell v. State, 7 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct. July 23, 1999). That case, however, has been distinguished by the recent Bean case. In Bean, the appellate court noted that the officer who made the stop testified that he believed the pattern of drifting to be indicative of DUI. Similarly, in the case at bar the officer who made the stop testified that he believed that, based upon his 19 years of police experience, the defendantís driving pattern indicated the defendant was DUI.

Second, 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).

In the case at bar, the defendantís driving was sufficiently unusual to justify a stop even if it could be said that the driving was not indicative of someone who was DUI. The defendant crossed over the double-yellow line, substantially into the oncoming traffic lane for the entire length of a bridge. It was only good fortune that there was no oncoming traffic. In fact, the officer testified that because the way the bridge was made, a driver would not always be in a position to see if there was any oncoming traffic --- particularly at night.

The defendantís odd driving cannot be excused as simply a necessary adjustment for the construction taking place on the bridge. The officer testified that he has observed traffic on that bridge every day; and tractor trailers, dump trucks and both small and large vehicles do not normally navigate that bridge in that manner.

Even discounting the defendantís driving over the double-yellow line while on the bridge --- accepting the explanation that due to the size of the Hummer and the existence of the construction it was necessary --- there is sufficient evidence of somewhat erratic driving unrelated to the bridge. The testimony was that the drifting occurred both before and after the bridge. The defendant appeared to be frequently drifting. Given the number of drifts over the relatively short distance, and given the fact that the officer had extra time to observe the defendant because of the very, very slow speed of the defendant, the officer had both sufficient time to observe the defendantís driving pattern and sufficient reason to be concerned about the defendantís driving pattern.

There were sufficient objective grounds for the officer to suspect the defendant was DUI. In addition, the defendantís driving was sufficiently unusual to justify an investigatory stop of the defendantís vehicle. Therefore, the stop was justified.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to suppress is reversed, and this matter is remanded to the lower court for further proceedings consistent with this Order and Opinion.

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

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

†††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene S. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

cc:††††††† State Attorney

 

††††††††††† Judge Overton

 

††††††††††† Timothy Weaver, Esq.