County Criminal Court: CRIMINAL LAW –DUI – Stop not justified where police saw defendant commit traffic offense on private property (apartment complex) where State failed to show complex generally open to traffic, and complex and police did not have a written agreement allowing police to enforce traffic laws. Judgment and sentence reversed. Nemeth v. State, No. CRC 05-89 APANO, (Fla. 6th Cir.App.Ct. October 3, 2006).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

ALENA J. NEMETH

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 05-89 APANO

   UCN522005AP0000008XXXXCR

STATE OF FLORIDA

 

            Appellee.

_____________________________/

 

 

Opinion filed _________________.

 

Appeal from a judgment

and sentence entered by

the Pinellas County Court

County Judge John Carballo

 

J. Kevin Hayslett, Esq.

Attorney for appellant

 

Dawn Henrichon, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Sullivan)

 

            THIS MATTER is before the Court on the defendant, Alena J. Nemeth’s, appeal from a judgment and sentence entered against her by the Pinellas County Court. The defendant pleaded no contest to DUI and driving without headlights charges, reserving her right to appeal the denial of her motion to suppress. After reviewing the briefs and record, this Court reverses the judgment and sentence.

            The trial court’s ruling on a motion to suppress is a mixed question of law and fact. A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, as long as those findings are supported by the record. However, a suppression order that turns on an issue of law or the application of the facts to the law is subject to a de novo standard of review. Ornelas v. State, 517 U.S. 690 (1996); State v. Baldwin, 686 So.2d 682 (Fla. 1st DCA 1996).

            The defendant contends that her motion to suppress should have been granted because the police should not have stopped her vehicle. At approximately 1:30 A.M., a deputy saw the defendant driving in the parking lot of an apartment complex for a short distance, reversing, and then pulling into a parking spot. The defendant was operating the vehicle without its headlights illuminated.  The deputy stopped the vehicle from moving, and the defendant was ultimately arrested for DUI and driving without headlights. Usually, the police may stop an individual for driving without the headlights being illuminated because it is a violation of §316.217 of the Florida Statutes. In this case, however, the defendant contends that the stop was improper because the deputy did not have jurisdiction to enforce traffic laws on private property.

            Pursuant to §316.006(3)(b):

A county may exercise jurisdiction over any private road or roads, or over any limited access road or roads owned or controlled by a special district, located within its boundaries if the county and party or parties owning or controlling such road or roads provide, by written agreement approved by the governing body of the municipality, for county traffic control jurisdiction over the road or roads encompassed by such agreement … .

 

 The State agrees that the apartment complex and the county do not have such an agreement. Thus, the State must look elsewhere to find jurisdiction for the police to enforce the traffic laws.

            Pursuant to §316.640 of the Florida Statutes, the police have jurisdiction to enforce traffic laws on all streets and highways “wherever the public has the right to travel by motor vehicle.” The State contends that the trial court was correct when it ruled, apparently as a matter of law, that the apartment complex was a “street or highway” under the definition of §316.003(53). This Court disagrees.

§316.003(53)(a) defines a “street or highway” as: “The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.” There was no evidence presented one way or the other to show that this particular apartment complex was “open to the use of the public for purposes of vehicular traffic.” It is the State’s burden to demonstrate by evidence that it was; and a review of the transcript clearly shows that the State made no effort to meet its burden. Without any evidence to support its ruling, the trial court’s decision was in error.               

            The State cites the case of Zink v. State, 448 So.2d 1196 (Fla. 1st DCA 1984), which held that the DUI statute applied to driving on private property. There is a distinction, however, between enforcing a DUI statute and a traffic statute. The DUI statute, §316.193(1), specifically makes it unlawful for a person to be DUI “within the state.” The statute does not just apply to DUI on the public streets or highways. In addition, as noted in Daly v. State, 12 Fla. L. Weekly Supp. 1133 (Fla. 11th Cir.Ct. Sept. 14, 2005): “nothing prevents a law enforcement officer from enforcing non-traffic offenses in a private community that does not have a written agreement with the sheriff’s office.” In both Zink (criminal mischief) and Daly (criminal mischief) the police stopped the defendant for suspicion of committing a criminal, non-traffic offense.

            Turning back to the case at bar, if the deputy had observed a DUI or a non-traffic criminal offense in the apartment parking lot, then he had jurisdiction to make the stop. At that point, the deputy could conduct a criminal investigation, including one for DUI, based upon his observations at the scene. Alternatively, if the apartment complex and the county had a written agreement, then the deputy could enforce the traffic laws in the apartment parking lot. Since none of the circumstances is present in this case, the deputy did not have jurisdiction to make the traffic stop.

            IT IS THEREFORE ORDERED that the judgment and sentence is reversed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of September, 2006.

 

                                                                                    ___________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                Irene H. Sullivan

                                                                                                Circuit Judge

 

cc:        State Attorney

            J. Kevin Hayslett, Esq.

            Judge Carballo