County 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 (Fla. 6th Cir. App. Ct. April 25, 2005).









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





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

              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 State Road  54 and County Road 581.  He testified that he was just making his way onto County Road 581 from State Road 54 when he looked ahead about a tenth of a mile, and observed the appellee's vehicle (a GMC pickup truck)  attempting to pass a tractor trailer on County Road 581. He explained that while he followed the appellee's vehicle, he observed him "appear to be accelerating to get past a car carrier in order to be in front of it before the lane merged into one lane." Carmen testified that the vehicle was passing on the left as the two lanes were merging and it appeared that the pickup hit the median with its front tire, was able to get passed the truck and accelerated away.  Carmen testified that it was not clear to him whether or not appellee actually hit the median, although it appeared that he did.  He testified that he was far away at that time and was trying to catch up. At that point, Carmen made his way around the same semi car carrier and while catching up to the appellee noticed his vehicle swerve "two or three more times" within its lane.  Carmen testified that it took him approximately a quarter of a mile to catch up to the appellee.  He further testified that he paced the appellee's vehicle for a quarter of a mile.  The deputy explained that he has training in making visual observations of vehicles as they travel and the rate of speed.  He testified that he was certified in radar and that the training entailed estimating the speed of several vehicles. Carmen stated that the training was approximately two years earlier.  He testified, based on his observation, that appellee was traveling at 78 miles per hour and the speed limit was 55 miles per hour. Carmen testified that he followed the vehicle for approximately one  half of a mile.  The deputy testified that he initiated his emergency lights and had the vehicle pull over. He made contact with the driver and immediately observed a strong odor of alcohol on the driver's breath.  When he first made contact, he asked him for his license and registration. Based on his observations of the driver/appellee, he asked the appellee to submit to field sobriety tests and the driver said that he would.  Carmen testified that the appellee performed the tests poorly and he arrested appellee.  After he was arrested, the deputy asked him if he would submit to a breath test and he agreed.  He testified that there is a 20 minute observation requirement which he did conduct; starting at 0153 while at the Land O' Lakes Jail.  The deputy testified that he conducted the breath tests at 0214 and 0217.  When asked if he read the defendant his Miranda rights, Carmen stated he had at the jail but not on the scene. The deputy testified that after reading him Implied Consent at the scene, he did not ask appellee any more questions.  The deputy testified that his vehicle was equipped with a video camera which was turned on after he paced the vehicle and was getting ready to make the traffic stop. The video was published.

            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.

            Carmen 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 Tallahassee by MADD.  He also stated that deputies are evaluated every six months to a year and one of the things evaluated is "productivity." Carmen stated that he believed DUI arrests are one of the areas related to productivity in the STEP unit, but did not think it was the main focus. Carmen acknowledged that he did not receive training of how to evaluate field sobriety exercises in a situation where somebody has just run six miles for the first time in six years a few hours before the test. Carmen also testified that when he asked appellee if he was sick or injured he remembered the appellee saying something about his knee but did not follow up with any questions. Carmen testified that he did not know what disease appellee had in his bones nor did he know what effect that may have on field sobriety exercises.

            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.

            On 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 Hernando County in 1995 and one in Polk County in 1998, when he was going 73 in a 55.  He admitted that he had sped, but he does not now speed. He admitted that going 60 in a 55, as he says he was doing on the night in question, is speeding.  Appellee recalled passing the car hauling vehicle on 581 South, but testified that it was four lanes when he passed the vehicle and shortly thereafter turned into two; one in each direction.  When asked where he was going that night, he said to some establishments on Bruce B. Downs to see what was going on.  When asked why he was going 60 in a 55 and whether or not he was in a hurry, appellee responded that it was an accident.  The state asked if he was in a hurry and he stated "not necessarily" then went on to say "no." Appellee was asked how he paid for dinner and he stated that he paid cash and did not keep the receipt. Appellee explained that he ran for one half hour and then lifted weights for one half hour.  He testified that he finished at 6:30, took a shower, and left to go to the restaurant at 8:30.  He stated that he did not have anything to drink prior to the going to the restaurant nor did he take any sort of drugs or narcotics that day.

            On redirect the appellee stated that the officer did not give him a choice about the Gaze Nystagmus Test.           

            After 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 (Fla. 1993)[1] and Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999).[2]  The trial court did not error.

            A ruling on a motion to suppress presents a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Deference is given to the trial court's factual findings, but the application of the law to the facts is reviewed de novo. Id. at 699, 116 S.Ct. 1657.  In this case, the record reveals that the officer conducted a valid stop for speeding.  Once appellee was pulled over, the officer approached the vehicle, noticed appellee's eyes were blood shot and noticed that appellee had alcohol on his breath.   At this point, the officer had reasonable suspicion that appellee was driving under the influence.  Therefore, the officer was entitled to further investigate whether or not he had probable cause for arrest.  State v. Taylor, 648 So. 2d 701 (Fla. 1995).  The officer was also entitled to ask the appellee to step out of the car in order to further investigate. Id.  The issue in this case, however, turns on the circumstances surrounding what happened next.  The officer testified that he performed an HGN test on appellee, but stated that he did not remember asking the  appellee if he would consent to such a test.  In fact, he acknowledged that once asking the appellee to exit the vehicle, he simply stated "I want you to follow this object with your eyes."  The officer did not recall telling appellee that he could refuse.  The officer further testified that at the point he conducted the HGN test, he did not have probable cause to arrest. Additionally, appellee testified that he did the test  "because [the officer] told [him] to" and the officer did not give him a choice. Based on these facts, and review of the video tape, which is not a part of this record, the trial court determined  that by subjecting appellee 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 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.  Thus, we have to rely on the interpretation of the trial court, who observed the videotape and observed the witnesses,  It is the trial court who,  after such observation,  determined that the officer "commanded" the HGN test and,  as a result, the stop turned into a detention which required probable cause. This Court finds that the trial court's findings are supported by competent substantial evidence. 

                        IT IS THEREFORE ORDERED that the decision of the trial court is AFFIRMED.


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


                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge





                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:


County Judge Robert P. Cole


Dustin Anderson, ASA


A.R. Mander, III, Esq.




[1] Police 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 185 (Fla.,1993)

[2] 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.