County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in finding defendant's statements inadmissible since statements  were the product of a custodial interrogation and she was not advised of her Miranda rights- trial court did not error in suppressing the results of the breath test- trial court made the specific finding that the defendant was required by trooper to take a breath test prior to her arrest for DUI.  Order affirmed. State v. Conner, 0502525CFAES (Fla. 6th Cir. App. Ct. January 31, 2006).  

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

STATE OF FLORIDA, 

            Appellant, 

 

v.                                                                                             Case No: 0502525CFAES

 

 

VICTORIA ROARK-CONNER, 

            Appellee. 

__________________________________________/

 

County Judge Robert P. Cole

 

Justin B. Petredis, Esq., ASA

Attorney for Appellant

 

A.R. Mander, III

Attorney for Appellee

 

 

ORDER AND OPINION

 

            On February 11, 2005, defendant was arrested for reckless driving and fleeing or eluding.  On March 22, 2005, defense counsel filed a Motion to Suppress Confessions, Statements and Admissions and a Motion to Suppress Evidence. The trial court granted  defendant's motions. This Court affirms the decision of the trial court

            At the hearing, Trooper Ramos testified that at approximately 10:30 pm on February 11, 2005, he received a "Be On the Look Out" for a white Toyota Camry driving recklessly southbound on 93. The BOLO also provided a license plate number. Trooper Ramos testified that he observed the vehicle while parked in the median east of 75.  He testified that he was waiting for the vehicle because an updated BOLO came out advising that the vehicle was traveling eastbound on 54.  Ramos testified that he did come in contact with the vehicle traveling eastbound and stated that the vehicle was traveling under the speed limit.  He explained that traffic was backed up behind the vehicle. He attempted to make a U-turn, at which time she (defendant) made another U-turn to head back westbound on 54.  He testified that she was driving off the shoulder of the road onto the grass. He stated that he was able to observe the tag and it was the tag given over dispatch.  Ramos testified that the vehicle was swaying from left to right while traveling westbound on 54 "nearly striking some road sticks there.  Just east of 75 she was braking for no reason. . . .  [and] also [failed] to maintain a single lane."  He explained that at the light on 54, close to the entrance ramp, he initiated a traffic stop by turning on his blue lights and siren.  He testified that defendant was at a complete stop facing westbound on 54.  "Blue lights and sirens were activated, at which time the light turned green and she proceeded to keep going.  She entered the southbound ramp on 75 and proceeded to travel southbound, at which time I did continue to follow her with lights and sirens."  He testified that he was less than a car length away when he first put his lights and sirens on.  Trooper Ramos testified that he followed her approximately five miles from State Road 54 to State Road 56 where she exited.  Ramos testified that she then continued eastbound on 56,  where he did make the traffic stop, just east of 75. Ramos testified that his lights and sirens were on the entire time he followed her and he was approximately one and half car lengths behind her the entire time he was following her. Ramos testified that she was "swerving from the inside lane onto the median" and he counted a total of three times.  He stated that she also attempted braking on the interstate a total of two times that he noticed.

            Trooper Ramos explained that the basis of his stop was "the pattern of driving, which clearly affected other vehicles, and the fact that she was failing to yield, failing to stop for a traffic stop." He went on to state "I pulled her over initially for reckless driving and the fleeing and eluding, at which time I did place her under arrest when she exited the vehicle from the traffic stop." Ramos stated that as soon as she stopped the vehicle, she jumped out.  He did not know who was in the vehicle at the time, so he had his gun drawn.  The trooper testified that he noticed she did not have any weapons on her; she waved her hands in the air.  He stated that he put his gun in the holster and proceeded to place her under arrest.  Ramos stated that he placed her under arrest for fleeing and eluding and reckless driving. He was asked if he planned to take her to jail for fleeing and eluding and he stated that he did. Ramos was then asked if he spoke with the defendant at all and he stated that he spoke with her briefly.  He explained that she was in his front passenger seat while he was trying to run her license and check on NCIC.  Ramos stated "[s]he initially made a spontaneous statement saying, she was going to Plant City, from, . . . a gathering she had with her friends or family members."  He then testified that he did ask her if she had been drinking from wherever she came from and she stated she had some wine.  He was asked if she was going the correct way to Plant City and Ramos stated "On my initial observations, I checked off that her statements seemed kind of confused, meaning that she was confused.  I don't think she knew where she was going.  Heading to Plant City, she exited onto 54, and that's what I based that on."  The state then asked if he noticed any signs of impairment and he replied that "[a]s soon as she got out of the vehicle at the initial stop, she was a little staggered, a little unbalanced.  I noticed her eyes were bloodshot and her speech was slurred, and she sort of got sarcastic, laughing and making statements, putting her feet on the dash-different--initial observation."   He was then asked if he noticed any odor of alcohol and he stated that he did.  When asked what kind of odor, Ramos replied "[c]ommonly associated with alcohol.  It was coming from her mouth area when she would speak." Ramos testified that the odor was fairly strong.  He was then asked if he noticed any other signs of impairment and he stated that "[a]t the time, what he noticed was the eyes and her speech, mumbled . . . ". He went on to testify that at this point, he believed she was impaired "based on [his] initial observations of her getting out of the vehicle, the breath --of alcohol coming from her mouth area, and her driving prior to the stop."  He testified that not including her statements, he would believe she was impaired.

            Ramos explained that after the initial arrest for fleeing and eluding, he did take her to the station to conduct field sobriety exercises. He testified that "she  had open-toed shoes and didn't have any socks on, so it was more comfortable to do it at the station." He further explained that when they got to the station, he did uncuff her and asked her to do the exercises. Ramos testified that he ". . . did not necessarily give her implied consent; she did agree to it.  . . . ".Ramos testified that he conducted field sobriety exercises because "[a]t point, . . . I had probable cause to believe she was impaired."  Ramos explained that defendant performed "fairly poor" on the exercises.  He explained that on the one legged stand she was swaying from side to side and also raising her arms for balance.  He testified that she did put her foot down twelve times.  On the walk and turn test, defendant started before the instructions were given.  She did not touch heel to toe and stepped off the lines seven times one way and seven times coming back. On the finger to nose test she did not close her eyes.  She had her head slightly tilted back, but not as far as he told her.  Ramos testified that after the field sobriety tests, he believed he had probable cause for arrest for DUI.  He testified that was based on her performance in the field sobriety test, the odor of alcohol coming from her mouth area and her apparent impaired condition.  The state asked: "[n]ot including the HGN test and her statements, do you believe that . . . you had probable cause for arrest for DUI?" and Ramos stated that he did.

            On cross examination Ramos testified that this was about the fourth DUI arrest he has made since 'going solo' patrol. He acknowledged that when he put on his lights, he determined that he was going to stop her and she was not free to go. He also acknowledged that when he turned on his lights it was because he had made up his mind that he was going to arrest her for reckless driving. Counsel then asked Ramos if at the time, he knew what the elements of reckless driving were.  Ramos stated "I do know that it's a willful and wanton disregard for persons or property." Counsel then asked if Ramos remembered  appearing at a formal review hearing and he stated that he did.  Counsel then asked "[a]nd when asked, '[w]hat are the elements of reckless driving? you didn't know then at that time, did you?" Ramos replied "I didn't know the elements per se."  Counsel said "[s]ince then you've learned them, correct?" and Ramos replied "I would say so." Ramos stated that she was traveling under the speed limit and that he did not think she ever exceeded speed limit. He acknowledged that he had said she was usually going ten to fifteen miles below the speed limit.  He also acknowledged that he had stated that he had no evidence or belief that she was intentionally driving dangerously. Ramos acknowledged that defendant stopped for red lights and proceeded when the lights turned green.  He also acknowledged that she never struck any objects and never accelerated to get away from him.  Ramos testified that defendant gave no indication that she knew he was trying to stop her.  Ramos also acknowledged that when he did stop her, defendant stated that she did not realize he had been trying to stop her before that. When asked if he ever went up and tried to pass her or block her or went up beside her and used the loudspeaker or anything to make sure she actually saw him prior to him pulling her over, he replied that he did not. He acknowledged that when he pulled her over he walked up, pulled his gun out and she exited the vehicle.  He cuffed her and arrested her for reckless driving and put her in the car.  He did not read her Miranda at the scene and did not read her Miranda when he first arrived at the station. He acknowledged that he never read her Miranda until after he arrested her for DUI.  Counsel then asked "[a]nd when you did read her Miranda, you told her she had a choice about talking, she immediately invoked her right to remain silent and didn't answer any questions, right?"  Ramos replied that was correct. Counsel then asked "[a]fter you had taken her into custody and put her in your car, you asked her if she had been drinking and what she had been drinking and how much she had been drinking, didn't you?" and Ramos replied that he did. Ramos acknowledged that he used that information, along with other factors, in his decision to then order her to field sobriety exercises when he got back to the jail.  He also acknowledged that he relied on the fact that she did poorly on the HGN and that he relied upon that for his decision to continue ordering her to do more tests. He admitted that he also relied on the statements that he had gotten from her without Miranda in the back of his cruiser.  Ramos then acknowledged that after he conducted the field sobriety exercises, he then had her take the breath test.  He stated that she was already under arrest for DUI at that point. Counsel asked "you hadn't decided or told her she was under arrest for DUI at that point, had you?" and Ramos replied he is to make the decision on whether or not to charge the individual prior to administering the breath test. Counsel asked "[y]ou're supposed to arrest them for DUI before a breath test ...correct? You've learned that since? Ramos replied "[r]ight." He was then asked "[b]ut at the time you didn't realize that, right?" Ramos replied that she was already under arrest.  Counsel asked "[b]ut she wasn't under arrest for DUI, was she?" and Ramos replied "[r]ight." Ramos said "[s]he was arrested after the breath test was administered, but she was informed that she was going to be charged with DUI prior to the breath test. Counsel asked when Ramos learned the breath test needed to be after the DUI arrest.  Ramos replied that that was the way he was trained, "to establish probable cause prior to the breath test." Counsel then reviewed testimony from the formal review hearing in which Ramos acknowledged that he placed defendant under arrest for DUI after he got the results from the breath test. At the formal review hearing Ramos testified ". . . .[s]ubject performed very poorly on the field sobriety, blew a .177. Based on the odor of alcoholic beverage coming from the subject, the poor performance on field sobriety test, slurred speech and apparent impaired condition I also charged the subject with DUI." Ramos acknowledged that that was his testimony. Ramos also acknowledged that he was asked "[t]hen after you got the results of the breath test, then you placed her under arrest for DUI?" and he responded that he did. Ramos testified that he did read implied consent prior to the breath test.

            On redirect, Ramos testified that he believed defendant was driving dangerously.  He stated "[s]he wasn't necessarily going above the speed limit, though.  I felt that she was putting other vehicles danger." He stated that that was why he pulled her over.  He testified that he asked defendant to perform the field sobriety exercises; he did not order her to. He testified that if she would have said no, he would have read implied consent and the would have gone from there.  Ramos stated that he would not have forced her to the exercises and stated that he reads implied consent in all of his DUI cases.  He also testified that he would not have forced her to take the breathalyzer.  Trooper Ramos stated that before he did the breath test, he told her she was under arrest for DUI.  He testified "[s]he was charged with DUI.  She was placed under arrest prior."

            The state rested. The defense called defendant to testify. Defendant stated that she did not know the officer was trying to stop her before she was pulled over. She testified that when she was pulled over the officer had his gun pulled and she was afraid. Defendant testified that she was cuffed and put her in his vehicle.  She said that he did not read her Miranda.  Defendant stated that the officer told her he was arresting her for reckless driving. Defendant testified that when they got back to the station, he ordered her to do the gaze nystagmus test and the other field sobriety tests and she did not feel as if she had a choice about doing them.  She testified that nobody told her that she did not have to do the tests. She testified that she was born cross eyed and has a drifting eye.  The defendant testified that the first time the officer ever said she was under arrest for DUI was after she took the breath test.

            On cross examination she testified that she felt ordered to do the field sobriety tests, saying "[h]e told me to do it." She was asked "[i]sn't it true that he read you implied consent before breathalyzer?  Telling you that you could say no, but that would result in a one year suspension of your driver's license?"  She replied "[y]es.  He told me that if I didn't take it I would lose my license." When asked if he told her that she did not have to take it she replied "[y]eah.  But if I didn't I would lose my license, that's why I did."

            The defense rested and the court heard argument. The trial court granted defendant's motion to suppress finding:

                        1. Trooper Ramos responded to a BOLO and observed the defendant                          driving.

                        2. Trooper Ramos testified that defendant's driving caused him to attempt                                  to stop her but she kept driving despite his lights and siren.                                                  3. When she finally stopped she was arrested for Reckless Driving.

                        4. Trooper Ramos admitted that at that time he did not know the elements                                 of Reckless Driving.

 

            The Court  found:

                        1.  The defendant's driving as described by Trooper Ramos did not                                           constitute Reckless Driving so the stop was invalid.

                        2. The facts that Trooper Ramos relied upon to make the arrest for                                            Reckless Driving were inadequate for that charge.

                        3. The defendant was required by Trooper Ramos to take a breath test                                     prior to her arrest for DUI. 

 

            The motion to suppress was granted and the state appealed.

 

 Appellant first argues that the trial court erred in finding that the arresting officer did not have probable cause for the stop. Having reviewed the record, this Court agrees. The standard to be employed is objective, meaning so long as probable cause existed to stop the defendant, the stop is valid.  Whren v. United States, 517 U.S. 806 (1996).  By applying an objective standard to the stop, defendant's reckless or careless driving gave trooper Ramos sufficient probable cause to stop her. The trooper witnessed defendant  driving under the speed limit with traffic backed up behind her.  The trooper saw defendant drifting, driving off the shoulder of the road, nearly hitting road sticks, braking without reason, failing to yield for traffic and failing to stop for traffic.  Trooper Ramos testified that the defendant clearly affected traffic and placed other vehicles in danger. This gave Trooper Ramos probable cause to stop defendant for careless driving. A person is guilty of Careless Driving if they fail to drive upon the streets or highways of the state in a careful and prudent manner, having regard for such things as width, grade, curves, traffic and other attendant circumstances, so as not to endanger the life, limb or property of any person. F.S. 316.1925(1). Trooper Ramos clearly had probable cause to stop defendant for Careless Driving. Her unsafe driving patterns were neither careful nor prudent and did not appear to take into account any attendant circumstances.

            However, this Court finds that the trial court did not err in suppressing defendant's statement that she had been drinking.   The evidence was that when Trooper Ramos pulled over defendant's vehicle,  he walked up, pulled his gun out and defendant exited. Ramos cuffed her and arrested her for reckless driving and then put her in his patrol vehicle.  He did not read her Miranda at the scene.  When asked "[a]fter you had taken her into custody and put her in your car, you asked her if she had been drinking and what she had been drinking and how much she had been drinking, didn't you?" and Ramos replied that he did.  Since the defendant's statements were the product of a custodial interrogation and she was not advised of her Miranda[1] rights, the trial court did not error in finding the statement to be inadmissible.

            This Court further finds that the trial court did not error in suppressing the results of the breath test.  Trooper Ramos  first testified that defendant  was under arrest charged with DUI when he told her to take the breath test.  He then conceded she was under arrest but not for DUI.  He then testified that he told defendant he was going to arrest her for DUI prior to the breath test.  Counsel then impeached Ramos with the arrest notice from his police reports where he stated he did not arrest defendant until after he had the breath test results. Based on this evidence, the trial court made the specific finding that "the defendant was required by trooper Ramos to take a breath test prior to her arrest for DUI." 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.

 

Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Granting the defendant's Motion to Suppress is AFFIRMED.  

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

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Office of the State Attorney

A.R. Mander, III

 

 

 

 

 

 

 



[1] Miranda v. Arizona, 86 S.Ct. 1602 (1966).