County Criminal Court:  CRIMINAL LAW – Traffic Stop – trial court did not error in granting motion to suppress- state failed to prove fresh pursuit under Section 901.25, Florida Statutes, or common law and Court found the state failed to prove exigent circumstances for the stop.  Order affirmed.  State v. Luna, CRC0501461CFAES (Fla. 6th Cir. App. Ct. August 18, 2005).

 

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.

 

JORGE LUNA,                                               Case No: 0501461CFAES

                        Appellee.

____________________/

 

Appeal from Pasco County Court

Judge Debra Roberts

 

Office of the State Attorney

Attorney for Appellant

 

Scott D. Miller, Esq.

Attorney for Appellee

 

 

ORDER AND OPINION

 

 

            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.

            Luna was charged by uniform traffic citation for the offense of driving under the influence.  He filed a motion to suppress arguing that Officer Zarra, an off duty Clearwater officer, did not have legal authority to stop or detain him since he was out of his jurisdiction.

            The state called Christian Zarra as its first witness. He testified that he is a detective with the narcotics division of the Clearwater Police Department.  He explained that between  10:30 to 11:00 p.m. on  November 11, 2004, while on his way home from work, in his marked police cruiser, he came into contact with Jorge Luna.  He testified that he was northbound on US19 in the turn lane and made a right turn headed eastbound, in Pasco County.  Approximately three or four cars ahead he noticed a large van that said "Jorge Luna" on it.  Zarra testified that it was some kind of marine repair truck.  He further testified that it immediately caught his attention because it was weaving all the way into oncoming lanes of traffic and he did it several times to the point where he tried to use his police radio to call into his dispatch to notify Pasco County dispatch, but it was out of range.  He explained:

            . . . he swerved completely into oncoming traffic, both tires went into oncoming              traffic and they swerved back.  It happened approximately one or two times.  He            was traveling  slowly, 15 to 20 miles an hour.  There was a lot of traffic backed up behind him, including myself.  . . . He all of a sudden swerved off to the right      shoulder, the south shoulder of Moog Road.  It's a two lane road.  He got out of     his car.  Actually, he fell out  of the van, out of the driver's side and started            stumbling into traffic.  At that point I had no other choice but to take action to    protect him, for his safety, and I used my cell phone to call Pasco County Sheriff's   Office so that they could come and respond and take the appropriate action.

 

Zarra testified that he used his back flashers "just to protect. . . . His van was still in traffic.  It wasn't a stop.  It wasn't more than . . . protective measures to make sure he didn't hurt himself. "  Zarra testified that Luna interfered with traffic, stating  "luckily, there were no oncoming cars going westbound, but other traffic that was around him was taking appropriate measures by staying back and trying to avoid him and his driving". He acknowledged that Luna was a danger to others on the road. 

            He explained that when he did actually stop where Luna stopped  his sole purpose was "just to protect him and the safety of others that maybe around him and make sure  that he got back into the vehicle until the appropriate authorities that had jurisdiction in that area took appropriate action." He explained that when Luna stopped his car, he got out of the vehicle and began to wander into traffic and he called to him and as soon as he called to him, he walked over to the front of the truck.  Zarra could not see him for a couple of moments and then he came back around towards him.  Luna was unsteady. There was a ditch on the far end, so Zarra asked him 'why don't you just sit down'.  Zarra  testified that he explained who he was and he again asked Luna to sit down ; telling him  that the Pasco County Sheriff's Department was on the way. Zarra testified that he contacted the Pasco County Sheriffs Department immediately and although it took a little while, the Department did respond.  When asked if Luna attempted to leave during the time they were waiting for the police to arrive, Zarra stated that he did not, and also stated that they did not talk much to each other, adding, "he appeared under the influence of an alcoholic beverage."  He explained that he seemed to speak broken English.  His speech was extremely mumbled and slurred.  He had blood shot, watery-glassy eyes.  He had a very strong odor of an alcoholic beverage coming from his breath.  He testified that based on is observations, he formed a suspicion that Luna was under the influence of an alcoholic beverage.

            On cross examination, Zarra testified that he did not stop Luna and only turned on his back flashers after Luna had already stopped.  He explained that he was several cars behind Luna when he stopped and was not in his proximity. He stopped and got out of his car and he almost stumbled into traffic.

            Jorge Luna testified.  He said that he went to his house and the officer put on the lights and stopped him.  He did not know why.  He stated that the officer told him to "go very close to [his] house."  He testified that he stopped his car because he saw the police following him. He said he did not drink that day.  When asked why he stopped the car that evening, he  said because he saw the police and he saw the lights.

 

There were no more witnesses - and the court heard argument.  Defendant argued  that the officer had no reason to stop the defendant and therefore the stop should be suppressed and the evidence that came as a result of it.  It was not his jurisdiction. 

            The state presented two arguments. First, if the court found that this was a traffic stop and that the only reason the defendant stopped in this case was through the actions of Officer Zarra, such a stop would have been pursuant to Florida Statute 901.25, "Fresh Pursuit Arrest Outside of Jurisdiction Statute."  The state explained that the statute defines the term fresh pursuit to mean pursuit of any person who has violated a county or municipal ordinance or Chapter 316 , the traffic law enforcement code , or has committed a misdemeanor.  Subsection 2 of that section says that any duly authorized state, county, municipal, arresting officer is authorized to arrest a person outside the officers jurisdiction when in fresh pursuit. Such officers shall have the same authority to arrest and hold such person in custody outside his or her jurisdiction subject to the limitations hereafter set forth as any authorized arresting state, county, municipal officer of the state to arrest and hold in custody a person not arrested in fresh pursuit.  The state further argued that subsection (3) says that they must immediately call the sheriff of the jurisdiction that they are in.  The state argued that if the court  were to find that this was a traffic stop, the officer's testimony provided evidence of reckless driving. 

            The court asked: "Where's the evidence of fresh pursuit; that's what we all need?" and the state responded "Judge, he observed the defendant driving in a careless manner.  I would submit to you also a reckless manner as well." The judge asked "Is that the same as fresh pursuit?" and the state replied "Well, judge, he's observing the crime as it develops and as it happens."  The state explained that careless driving or reckless driving is a  violation of the traffic code and since the officer observed it it would be fresh pursuit since the actions were developing in his presence ; he watched a violation of 316 unfold in front of him.

            Next the state argued that if the court did not find that this is a traffic stop and if the court believed the officer's testimony that the defendant just stopped and fell out of his car, then he would argue exigent circumstances. He sees an emergency unfolding in front of him.  He comes to render aide or assistance to the driver and investigates what is unfolding and happened to him. The state argued that it appeared from the testimony that the officer stated that Luna just pulled over and fell out of his car, which would alarm the average person and lead them to believe that something is wrong with Mr. Luna.  The officer's testimony was that he stopped and put on his back flashers to investigate whether or not there was anything wrong with Luna. The state argued that therefore, it was exigent circumstances and once he makes contact with Luna he learns of the odor of alcohol and the other signs of impairment that he testified to. The state said "either way I would maintain it's a valid stop."

            The defense argued, as far as fresh pursuit, "had the officer seen Mr. Luna driving in Clearwater and followed him up Pasco County I would say that was fresh pursuit; that is not what we have here. As far as why Mr. Luna stopped the vehicle, I would submit that one version defies credibility and that it was a police stop and he was outside of his jurisdiction."

           

 

The court entered an order finding the following:

            On or about November 12, 2004, the defendant was driving a motor vehicle eastbound on Moog Road in Pasco County.  The undisputed testimony is the defendant was driving very slowly with Officer Zarra following in his marked police cruiser several vehicles behind the defendant's vehicle.  The defendant's vehicle weaved into the westbound lane one or two times. No cars were traveling in the westbound lanes.  At no time did Officer Zarra observe the defendant driving in Pinellas County and first observed the defendant's driving on Moog Road.  The court finds the testimony of the officer credible to this point.

            The dispute in this case arises from the circumstances of the stop.  The defense alleges the stop was illegal.  The defendant testified he stopped his vehicle when stopped by the officer who used the overhead lights on the cruiser. The officer testified the defendant voluntarily stopped his vehicle without any prompting, opened his door and fell out of the car, stumbling into traffic.  The officer states the defendant had already stopped his vehicle when he pulled behind the defendant's vehicle and turned on his rear flashers, but not his overhead lights.  When weighing the testimony, the court finds the defendant's testimony is more credible as it relates to the stop.

            After the stop, Officer Zarra observed the defendant's blood shot glassy eyes and smelled an odor of alcohol.  He suspected the defendant was under the influence of alcohol and because of the safety of the public and the defendant Officer Zarra called Pasco County Sheriff and asked the defendant to remain until the Pasco officers arrived.

            The state makes two arguments; first, that Officer Zarra was in fresh pursuit of the defendant, and second that there were exigent circumstances for the stop.  The Court rejects both arguments.  The state has failed to prove fresh pursuit under Section 901.25, Florida Statutes, or common law.  Further, the Court  finds the state failed to prove exigent circumstances for the stop.    

 

            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 trial court found appellee to be more credible. 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). 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, relying upon the trial court's findings of fact, as we must, this Court affirms the trial court's ruling on the motion to suppress.[1] 

            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 Debra Roberts

Office of the State Attorney

            James Goodnow, Esq.

Scott D. Miller, Esq.

 

 

 

 



[1] On appeal, the State raises the additional argument  that, even assuming the trial court was correct in finding that Zarra conducted a traffic stop on Luna's vehicle, Zarra had legal authority to stop Luna out of Officer Zarra's jurisdiction because Luna's erratic driving was a breach of the peace. The state argues that the standard applied to an extra jurisdictional police arrest is the same as that applied to a citizen's arrest.   At common law a citizen may arrest a person who in the citizen's presence commits a felony or a breach of the peace.  Thus, the state argues, Luna's actions jeopardized his own safety, as well as the safety of other motorists. As a result, Luna's erratic driving amounted to a breach of the peace; thus there was a legal basis for the traffic stop. While the argument of citizen's arrest may have some appeal, this argument is precluded from being raised on appeal because it was not preserved for review.  To properly preserve an issue for appellate review, a litigant must make a timely, contemporaneous objection and must state a legal ground for that objection; for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below. West's F.S.A. § 924.051(1)(b), (3).