County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Police officer’s observation of defendant driving while head and body slumped over wheel and drifting across lanes justified stop. Particularly when defendant appeared to just drive off the roadway when making his stop Judgment and sentence affirmed. Towne v. State, No. CRC 04-62 APANO, (Fla. 6th Cir.App.Ct. Oct. 14, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

ALYN TOWNE III

 

            Appellant,

 

 

v.                                                                                                                                           Appeal No. CRC 04-00062 APANO

UCN522004AP00062XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

_____________________________/

 

 

Opinion filed _________________.

 

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge William Overton

 

Scot Samis, Esq.

Attorney for appellant

 

Philippe Matthey, Esq.

Assistant State Attorney

 

 

ORDER AND OPINION

 

            (J. Demers)

 

 

            THIS MATTER is before the Court on the defendant, Alyn Towne III’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 denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            A trial court’s 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). “Appellate 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 court’s application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).

            Approximately 1:49 A.M., a police officer observed the defendant’s head and body slumped over the steering wheel while he was driving his pick-up truck. The officer suspected the defendant was DUI, and the officer followed the defendant. The officer observed the defendant make a turn without using his turn signal. While making the turn the defendant intruded into the lane adjacent to his turning lane. The defendant’s vehicle drifted and crossed the dividing line by half a car length. The defendant then drifted back in the other direction and onto the grass median. Finally, the defendant pulled into the driveway of an apartment complex by traveling over two strips of grass on either side of the driveway. The officer testified that “it appeared to me that he just drove straight off the roadway.” R. 31. At that point the officer made the stop, and the defendant was ultimately arrested for DUI. The defendant filed a motion to suppress, claiming that the stop was not justified. The trial court denied that motion, and the defendant is appealing that denial.

The appellant contends that none of the driving that the officer witnessed was sufficient to merit a traffic infraction because there were no other vehicles in the area. The appellant fails to recognize the numerous decisions that permit the police to make a brief investigatory stop if the vehicle is being driven in an erratic manner. 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); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999)(police observation of defendant driving significantly below speed limit and drifting in and out of lane warranted stop); Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004)(if police observe motor vehicle being operated in unusual manner, there might be justification for stop even when no traffic infraction seen or citation given). This Court agrees with the trial court that the manner of driving was unusual; thus warranting an investigatory stop.

            Moreover, the officer testified in this case that based upon his training and experience, the defendant’s behavior was consistent with someone who was DUI. The officer testified that he had been a police officer for 22 years and had made roughly one to two thousand arrests for DUI, and that when he stops individuals who are driving while slumped over the steering wheel they turn out to be DUI.

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

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

 

                                                                                    ___________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

cc:   State Attorney

 

        Scot Samis, Esq.

 

        Judge Overton