NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 05-69 APANO
Opinion filed ____________________.
Appeal from a decision of the
County Judge William Overton
Jan Andrew Press, Esq.
Attorney for appellant
John Mulvihill, Esq.
Assistant State Attorney
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from an order of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.
At approximately 4:30 in the afternoon, a police officer observed the defendant’s vehicle and followed it for about four blocks. The defendant’s vehicle was weaving somewhat within its lane and when it made a right hand turn the vehicle’s tires came out of the curb lane and nearly struck the curb. The vehicle then swerved back into the curb lane and its left tires crossed over into the center lane. Believing the driving was unusual, the officer stopped the defendant’s vehicle because he was concerned about the driver’s welfare. The officer also believed that the red lens covering the tail light on the defendant’s vehicle was cracked. The defendant was ultimately arrested for DUI, and filed a motion to suppress, claiming the stop was improper. The trial court granted the motion to suppress, and the State is appealing that decision.
The State argues that the stop was proper because the driving was unusual. In support of its position, the State claims that the trial court found that the driving was unusual. The State appears to be arguing that the trial court found that if the driving had occurred late at night, the stop would be justified, but since the driving occurred during the day, the stop was not justified. The State’s position appears to be that while unusual driving late at night might increase the justification for a stop, unusual driving --- at any time of the day --- justifies a stop.
Although the trial court found unusual driving in this case, it appears that this finding was tepid at best. The officer’s testimony about the defendant’s driving was somewhat impeached. Defense counsel was able to point out that the officer’s report mentioned nothing about swerving within the lane. The trial court found on the record that the defendant’s driving was an unusual pattern, but the written order only finds the “officer’s testimony credible to show the operation of the defendant’s vehicle approaching a pattern of unusual driving.”  The unusual driving essentially consisted of one sharp turn that was quickly (although exaggeratedly) corrected. At worst, the driving was only marginally unusual, and not enough to be considered a pattern, or even approaching a pattern. If the driving were coupled with another factor, such as it being late at night, the driving might have justified a stop. If the driving were a bit worse or had continued a bit longer, the driving, even in the afternoon, might have justified a stop. However, because the driving was in the afternoon, only slightly unusual, and observed for a brief time, this Court agrees with the trial court that the stop was not justified under the circumstances.
State also contends that the stop was justified because the taillight was defective.
This Court does not agree.
In Doctor v. State, 596 So.2d 442 (
This is unlike the
situation in State v. Schuck, 913 So.2d 69 (
Neither the cracked taillight nor the driving justified the stop in this case. The trial court correctly granted the defendant’s motion to suppress.
IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is affirmed.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene H. Sullivan
cc: State Attorney
Jan Andrew Press, Esq.
 There is nothing in the record to explain why the in-court pronouncements appear to conflict with the written order apparently prepared by the defense counsel.