County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Police officer’s observation of defendant's vehicle exceeding the posted speed limit  is sufficient reasonable suspicion to justify the stop.  Judgment reversed.  State v. Smith,  CRC05-4311CFAES (Fla. 6th Cir.App.Ct. May 16, 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.

 

CULLEN SMITH,                                                     Case No: 054311CFAES

                        Appellee.                                             Lower No: 05481833WTES

____________________/

 

On appeal from the Pasco County Court

Honorable Robert P. Cole

 

Justin B. Petredis, Esq., A.S.A.

 

A.R. Mander, III, Esq. 

 

ORDER AND OPINION

 

            On January 21, 2005,  appellant was arrested and charged with Driving Under the Influence.  On May 20, 2005, defense counsel filed a Motion to Suppress Confessions, Statements, and Admissions, as well as a Motion to Suppress evidence, in which he argued that there was no reasonable suspicion to justify the stop.  The trial court granted  defendant's motion to suppress at a hearing on August 2, 2005.  This Court REVERSES the trial court's order. 

            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(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. 

                        At the motion to suppress Deputy Shaw testified that he observed a vehicle traveling in front of him and noticed the vehicle was exceeding the posted speed limit.  When asked how he made that determination, he testified "[w]ell, once--first by [visual] observation."  He was asked, "[d]o you have any sort of training in the detection, visually, of persons exceeding the speed limit?" and he replied "[y]es, sir.  That's part of the requirements to be certified by the State of Florida to operate radar."  He testified that he was certified to operate radar in the State of Florida and that certification is current.   He further explained that he activated the radar while following the vehicle and obtained a reading of fifty one miles an hour.  The deputy testified that the speed limit on that section of Dean Dairy Road is only 30 miles an hour.  Shaw explained that he followed the vehicle for approximately a quarter of a mile.  The deputy also testified that he observed the vehicle slightly weaving towards the center of the two lane road.  He stated that ". . . the driver's side wheels just brushed up against the yellow line; when you're coming to the area of the safety lane before the turn lane." Shaw testified that he initiated the traffic stop on Eiland Boulevard.  Appellant was arrested for DUI.

                        On cross examination, Shaw testified that Vanderwaall, an off duty deputy, was working at Cheers that night and radioed Shaw shortly before he pulled the defendant over.  Vanderwaall told Shaw that he thought he had a possible drunk driver for him.  He did not say that there was a car speeding. He acknowledged that the first opportunity he would have had to see the vehicle, to determine whether it might be speeding or not, was not until he got around Vanderwaall's vehicle.  Shaw was then asked "[o]kay, and so you're making this visual observation in the darkness, from behind the vehicle, in this short a distance?" and Shaw replied "[y]es, sir."  Defense counsel then asked "[a]nd  so what you're saying is, is as soon as you got around this vehicle you saw some [taillights] up ahead of you; and they're what, at least eight to ten car lengths ahead of you at that point, right?. . . And --and you can tell in the darkness that you thought that this vehicle was speeding; and you turned on the radar, is that right?" and Shaw responded "[y]es, sir. I've been doing this for about sixteen and half years." 

            On redirect, the state asked how long he visually observed the vehicle he testified "[m]aybe like four or five seconds, I don't know."

            The court entered an Order on August 12, 2005, granting the defendant's motion to suppress, making the following findings;

            1. Deputy Shaw testified on direct and cross that Deputy Vanderwaall had been   working off duty at a bar and radioed him to say that he, Vanderwaall, had a possible drunk driver for him.

            2.  Deputy Shaw says he went to Chancey road and saw the vehicle in question in             front of Deputy Vanderwaall's vehicle.  

            3.  Deputy Shaw states he passed Vanderwaall and was able to visually estimate    that the defendant's car was speeding and that his radar indicated that the    defendant's vehicle was traveling at 51 mph in the 30 mph zone.

            4. The state did not attempt to introduce any proof of the reliability or certification            of Deputy Shaw's radar.

            5.  Deputy Shaw estimated the speed of the defendant's car as it was going away from him in the darkness.

 

The court found that the state "has failed to meet it's burden in showing the validity of the stop of the defendant for speeding." The trial court erred.

            Section 316.1906(2), Fla. Stat. sets forth the conditions precedent to the

 

introduction of any evidence regarding speeding violations.  That section reads:

           

            2) Evidence of the speed of a vehicle measured by any radar speed-measuring         device shall be inadmissible in any proceeding with respect to an alleged     violation of provisions of law regulating the lawful speed of vehicles, unless       such evidence of speed is obtained by an officer who:
            (a) Has satisfactorily completed the radar training course established by the            Criminal Justice Standards and Training Commission pursuant to s. 943.17(1)(b).
            (b) Has made an independent visual determination that the vehicle is operating in excess of the applicable speed limit.
            (c) Has written a citation based on evidence obtained from radar when conditions             permit the clear assignment of speed to a single vehicle.
            (d) Is using radar which has no automatic speed locks and no audio alarms, unless             disconnected or deactivated.
            (e) Is operating radar with audio Doppler engaged.
            (f) Is using a radar unit which meets the minimum design criteria for such units      established by the Department of Highway Safety and Motor Vehicles.

 

(Emphasis added). Thus, as argued by the state, it is not necessary to meet these

 

conditions at a Motion to Suppress evidence, because such a motion is not a proceeding "with respect to an alleged violation of law regulating the lawful speed of vehicles."  316.1906(2), Fla. Stat .  See also, Dept. of Highway Safety and Motor Vehicles v. Nelson, 823 So. 2d 828 (Fla. 1st DCA 2002).  The only issue in this proceeding was whether or not the stop was lawful.

            Whether or not the stop was lawful depends on whether or not the officer had  reasonable or founded suspicion to stop defendant's car for speeding. State v. Eady, 538 So. 2d 96 (Fla. 3rd DCA 1989) (a simple 'founded' or 'reasonable' suspicion of a violation is all that is necessary to stop a car for a traffic offense.)  A stop is justified where the suspicion is based on the officer's visual perception.  State v. Joy, 637 So. 2d 946 (Fla. 3rd DCA 1994) (fact that patrol car's speedometer was not calibrated is of no moment because an officer may stop a vehicle suspected of speeding based on the officer's visual and aural perceptions.) In this case, the officer testified that he observed defendant's vehicle traveling in front of him and noticed the vehicle was exceeding the posted speed limit.  The officer's reasonable suspicion justifies the stop.  "Once a driver is validly stopped, probable cause to arrest may be lawfully based on the office's observations during the standard procedures following a traffic stop."  Eady at 948.  Based on Deputy Shaw's testimony of defendant's condition when he was stopped, the deputy had probable cause to arrest defendant for driving under the influence. [1]

 

            IT IS THEREFORE ORDERED that the judgment and sentence be REVERSED.

 

            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of May,  2006.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable Robert P. Cole

Justin B. Petredis, Esq., A.S.A.

A.R. Mander, III, Esq. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[1] This Court recognizes that the officer's credibility may have played a part in the trial court's decision and this court will not substitute its judgment for that of the trial court on the issue of the credibility of the witnesses and the weight to be given to the evidence.  This Court is only addressing the trial court's apparent belief that the arresting officer was required to lay the predicate necessary to prove the speeding occurred and/or that something more than reasonable suspicion was necessary to effectuate the stop.