Criminal Court: CRIMINAL LAW – Search and Seizure – Stop–trial court
did not error in granting motion to suppress- officer had reasonable suspicion
that appellee was driving under the influence and officer was entitled to
further investigate whether or not he had probable cause for arrest, but by ordering
the defendant out of the vehicle and further subjecting him to a forced test
(gaze nystagmus) the defendant's freedom of movement was restrained without
probable cause or well founded suspicion of criminal activity. It is the trial court who determined that the
officer "commanded" the HGN test and,
as a result, the stop turned into a detention which required probable
cause. - Order affirmed. State v.
Hancock, CRC0403486CFAES (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
v. CASE NO: 04-03486CFAES
Appeal from decision of the Pasco County Court
County Judge Robert P. Cole
Dustin Anderson, ASA
Attorney for Appellant
A.R. Mander, III, Esq.
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is
before the Court on the State of
On March 4, 2004, appellee was arrested for
Driving Under the Influence. Appellee
filed a Motion to Suppress which was heard on July 28, 2004. At the hearing,
Deputy Carmen testified that he has been
a deputy with the Pasco County Sheriff's Office since October of 2000. He testified that he works in the traffic
unit monitoring traffic and DUI investigations.
Carmen stated that he was on duty on March 24, 2004, at approximately
1:00 a.m., in the area of
On cross examination, Carmen testified that he was not exactly sure where on County Road 541 the median stops; he stated "[w]here the lane merges into one lane is where I observed him to appear to hit the center area of the roadway . . ." The deputy testified he first noticed appellee when he was turning on to County Road 541 and appellee was already headed south on 581. The deputy admitted that he never mentioned the car hauling trailer in his Probable Cause Affidavit. The deputy also admitted that he did not know for a fact that appellee even touched the median because of the distance and the darkness. Carmen stated that he turned on his lights around the same time he turned on the video. Carmen admitted that he controls when the video is turned on and that in this video he is not able to determine the speed he is traveling. The deputy testified that he is able to determine when a vehicle is traveling in excess of 75 miles an hour. He also testified that he is able to determine when he is traveling over 70 miles an hour. Carmen admitted that after he passed the car hauler, while trying to catch up to appellee, he exceeded the speed limit without his emergency lights on. The deputy testified that the reason he stopped this vehicle was mainly because of his speed. He admitted that appellee pulled over timely and was completely off the road safely. He signaled off the road, opened the door before Carmen approached, waited in the vehicle and handed the deputy his drivers license and registration. Carmen admitted that he did not walk up there with a ticket book but also stated that he never takes a ticket book up to anyone on a traffic stop. Carmen admitted that he did not write a speeding ticket nor did he provide a warning for speeding. Finally, Carmen admitted that although he has a microphone for the video, and that he is in control of the microphone, he did not put the microphone on during his initial conversation with the appellee. He testified that he did not put it on because it is an officer safety issue. The deputy stated that after the initial conversation with appellee he went back to his vehicle for approximately 5 minutes. When he walked back up to appellee, he still did not have his ticket book nor did he write a speeding ticket for appellee. Instead, he told appellee to get out of vehicle. The deputy admitted that prior to telling appellee to get out of his vehicle, he moved his own vehicle further to the left so that he could block the area of the pavement because he had decided to give a field sobriety test. He admitted that he decided to change this from just an infraction to a criminal investigation. The deputy acknowledged that he then approached appellee, but did not read him his Miranda. However, he did ask him questions about his drinking. Carmen acknowledged that appellee was not free to leave. Carmen further acknowledged that the appellee's driving did not noticeably improve after the video was turned on and acknowledged that there was no swerving on the video. Carmen admitted that he could have turned the video on much sooner.
testified that although appellee did not have to do the field sobriety tests,
he did not remember advising appellee that he had a choice. He simply stated
"I want you to follow this object with your eyes." The deputy
admitted that he made his determination of probable cause after he gave the
field sobriety exercises. He also
testified that he is not a certified gaze nystagmus expert and that his
training was a standardized field sobriety school which covered HGN. Carmen
acknowledged that he kept statistics on how many DUI arrests he makes and that
he is aware that whoever gets the most annually is sent to
On redirect, Carmen testified that immediately, upon initial contact with appellee, he noticed the odor of alcoholic beverage on appellee and observed watery bloodshot eyes. Carmen stated that he noticed this before he positioned his vehicle the way that he did. He testified that he observed appellee before the audio went on. He further testified that he did not put the audio on because it is not on his belt, it is on the passenger side visor. He did not turn it on upon initially stopping the vehicle because he noticed the appellee open his door. He testified instead of waiting to grab the audio portion, he wanted to get out and make contact with him because there were two subjects in the vehicle. For safety reasons, he wanted to approach the vehicle first. Carmen testified that he does not normally turn the audio on first for every stop. The deputy explained that he stopped appellee because of his speeding, but also because he thought he may have hit the median and observed him swerve several times within his lane. He again explained that it appeared that appellee was attempting to pass the vehicle in order to get passed it before it went into one lane; it appeared that appellee went into the center median in order not to hit the vehicle as they were merging together. Carmen testified that he normally performs HGN examination as part of his field sobriety tests. He further testified that he decided to arrest appellee after he conducted all of his field sobriety exercises. He explained that if appellee performed poorly on the HGN but performed well on the remaining exercises, he would not have arrested appellee for DUI but if he did not perform the HGN on appellee but performed all other examinations on appellee, and appellee performed poorly, he would have arrested appellee. Carmen testified that he did not order appellee to conduct the field sobriety exercises, but asked him if he would. Carmen testified that never told appellee that he had to perform those exercises.
On recross the deputy acknowledged that there are other reasons for blood shot and watery eyes and that he did not ask appellee if anything else might have caused that. He also acknowledged that he could not tell how many drinks a person has had simply by smelling alcohol on someone's breath.
The defense called appellee. Appellee testified that he disputed the fact that he was going 78 miles per hour in a 55 speed zone. He stated that he believed he was doing the speed limit. Appellee testified that he had run that evening for around an hour, 5:30 to 6:30. He further testified that it had been about six months since he last ran a long distance like that. He stated that he told the deputy that he ran six miles. Appellee stated that the deputy never asked him why his eyes were bloodshot or glassy. Appellee also testified that he did not ever weave outside of his lane that night. He testified that he pulled over promptly after the deputy turned on his overhead lights, he signaled, he got off the road, he pulled out his license and registration and had it ready for the deputy when he approached and handed it to him. When asked if he held something up in front of his face and had him follow it with his eyes, the appellant said that he did. When asked why he did it, the appellee stated "[b]ecause he told me to." Appellee stated that he did not feel as if he had a choice.
cross examination appellee admitted that he was drinking and testified that he
had two twelve ounce beers about three hours after he ran the six miles. He
stated that he stopped running at about 7:00 PM, had one beer with dinner at around 9:00 and one after
dinner, at about 10:00 PM, finishing it around 10:30 PM. He testified that he
had soup and salad for dinner. Appellee
denied that he was impaired that night. Appellee testified that the officer
asked him if he would like to do a field sobriety, he did not tell him to do
them. Appellee could not recall what was
said during the time when there was no audio tape on the video. Appellee stated
that he was going a maximum of 60 MPH that night. When asked what he based that
on, he stated "I just base it on how I drive. I'm not a
speeder." Appellee admitted that he
had one speeding ticket. However, when
the state asked if he had two, he said "I guess I could have had
two." The state pointed out one in
On redirect the appellee stated that the officer did not give him a choice about the Gaze Nystagmus Test.
argument, the Court took it under advisement.
An order granting the Motion to Suppress was entered the following day.
The trial court made the following findings: the defendant was stopped for
speeding; after receiving the defendant's license and registration the deputy
moved his car obviously in preparation to get the defendant to do field
sobriety tests; the deputy testified that he smelled the odor of an alcoholic
beverage on the defendant and that the defendant had bloodshot watery eyes; the
deputy conceded that the smell of alcohol and bloodshot watery eyes does not
establish probable cause that the defendant
was committing a crime; the deputy ordered the defendant out of his
vehicle and directed the defendant to the side of the roadway where he
subjected the defendant to the gaze nystagmus test without asking the
defendant's consent; the deputy further had the defendant do field sobriety
tests which the deputy says the defendant did poorly; the defendant was
arrested for DUI. The Court found that by ordering the defendant out of the
vehicle and further subjecting him to a forced test (gaze nystagmus) the
defendant's freedom of movement was restrained without probable cause or well
founded suspicion of criminal activity. The court cited Popple v. State,
626 So. 2d 185 (
ruling on a motion to suppress presents a mixed question of law and fact. Ornelas v.
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 (
IT IS THEREFORE ORDERED that the decision of the trial court is AFFIRMED.
DONE AND ORDERED in Chambers at New
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
County Judge Robert P. Cole
Dustin Anderson, ASA
A.R. Mander, III, Esq.
officer's direction for occupant of legally parked car to exit his vehicle was
"seizure" of occupant requiring that officer have reasonable
suspicion to detain occupant; officer's direction constituted show of authority
which restrained driver's freedom of movement in that reasonable person under
the circumstances would believe he should comply with officer's direction. Popple v. State 626 So.2d
 Holding that, as a general rule, an encounter between a police officer and a citizen becomes an investigative stop when the citizen is asked to exit a vehicle." Danielewicz v. State, 730 So.2d 363, 364 (Fla. 2d DCA 1999). In order to justify an investigative stop, the officer must have a well-founded suspicion that the subject of the stop is or is about to become involved in criminal activity. Id at 363 -364.