County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – deputy testified that he pulled over appellant for failure to maintain a lane-deputy acknowledged that the sole basis for the stop was his perception that appellant violated the statute- no testimony at all elicited at the hearing that the deputy effectuated the stop for a reason other than his perception that appellant violated the statute. Order of trial court reversed. Leyland v. State, No. 0506090CFAES  (Fla. 6th Cir.Ap.Ct.  January 19, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 JEFFREY JOHN LEYLAND,    

                        Appellant,

v.                                                                                 Case No: 0506090CFAES

 

STATE OF FLORIDA,                                              

                        Appellee.

_____________________________/

 

Appeal from Pasco County Court

 

Wm. Newt Hudson, Esq.,

for Appellant

 

Devin Jones, A.S.A.,

for appellee

 

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on JEFFREY LEYLAND’S appeal of the trial court's order denying his Motion to Suppress. After reviewing the briefs and record, this Court reverses the trial court’s decision.

Appellant was stopped and issued a traffic citation for an alleged violation of 316.089, entitled “Driving on Roadways Laned for Traffic.” Appellant was thereafter arrested and charged with a violation of 316.193 on April 21, 2005 and issued a Florida DUI Uniform Traffic Citation.  At the motion to suppress, Deputy Hentschel testified that he was on duty April 21, 2005, when he pulled over appellant for failure to maintain a lane.  He explained that the car was weaving in the center lane.  He defined weaving as ‘he was maintaining a lane but bouncing from line to line.’

The state asked “[a]t any point were you concerned that something might be going on with the defendant’s vehicle, whether it be medical or –“ and the deputy replied “[o]h, definitely.  The way he was driving, yes, sir.”  The officer testified that he pulled the appellant over based on his driving actions and stated “[j]ust concerned for the safety of the public.”

During cross examination, the deputy testified that he did not pull the appellant over ‘just to check him out’ but pulled him over because of his belief that he violated the statute.  He acknowledged that the sole basis for the stop was his perception that appellant violated the statute. 

On redirect, the deputy was asked if he pulled the appellant over because he believed he might be in some type of medical trouble, and the deputy replied “[n]ot really.  More for the safety of the public.”  When asked if he was concerned with appellant’s safety at all, the deputy testified “I was more concerned about the safety of the public.  I mean if he kept on continuing down the road, eventually, he was going to come into some traffic.” On re-cross, the deputy again acknowledged that he pulled the appellant over because he thought he had violated the statute; not to ‘check him out.’  

After all of the evidence, the trial court specifically found that there was not a violation of the failure to maintain a single lane.  However, the court then directed the parties to research whether  “objectively, the officer had a basis to stop the [appellant]. The fact that he didn’t articulate it very well is the issue.”  The parties later submitted memorandum and the trial court entered an order Denying the Motion to Suppress on September 28, 2005. Thereafter, the appellant filed a Motion for Reconsideration which was denied.  Appellant then entered a plea of Nolo Contendere specifically reserving his right to appeal.

This Court agrees that the record supports the trial court’s determination that a violation of the failure to maintain a single lane did not occur, since the statute requires evidence that the driving patterns caused a reasonable safety concern.  Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1999).  Therefore, there must have been some other legal basis for the stop. As argued by the appellant, “[t]he validity of a traffic stop is determined by considering whether the officer who stopped the vehicle had an objective basis to do so, not whether it would be standard police practice to stop the vehicle.” Dobrin v. DHSMV, 874 So. 2d 1171 (Fla. 2004).  At the hearing, Hentschel was expressly asked whether the basis for the stop was his perceived violation of the lane statute, to which he affirmatively answered and further specifically stated that he did not stop the appellant to check him or determine if there was a medical or mechanical problem.  Since there was no testimony at all elicited at the hearing that the deputy effectuated the stop for a reason other than his perception that appellant violated the statute, the decision must be reversed.  It is therefore,

 

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January,  2007.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

 

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable Marc H. Salton

William Newt Hudson, Esq.

Devin Jones, Esq. A.S.A.