County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop- the stop of a vehicle weaving within its own lane is justified even without rising to the level of an infraction, to determine if the operator is under the influence of alcohol or drugs or just having mechanical problems.  Order of trial court reversed.  State v. Ortiz, No. 0506403CFAES,  (Fla. 6th Cir.App.Ct   January 24, 2007).

 

 

 

 

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.

 

JACQUELINE ORTIZ,                                               Case No: 0506403CFAES

                        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 reverses the trial court’s decision.

Deputy Carmen testified that he has been employed by the Pasco County Sheriff’s Office since October 2000 and prior to that was a New Jersey police officer for four years.  He stated that he was assigned to the STEP unit which enforces traffic and DUI  investigations. He testified that he has investigated over 1000 DUI cases. Carmen testified that he was on duty February 17, 2005.  At approximately 3:30 in the morning, while waiting for the traffic signal in the southbound lane at the intersection of U.S. 19 and Alternate 19, he observed a 1993 Nissan  make a U-turn in front of him and start heading southbound. He explained that the vehicle made a u-turn from the left turn lane, which was northbound.  When it made the U-turn, both right tires went over the white line of the shoulder and then it swerved back into the right lane.  He testified that at that time, he began to follow the vehicle. He testified that only a few seconds later, the vehicle swerved again with both right tires going over the right line of the shoulder. The deputy testified that he was concerned that “maybe the driver was falling asleep, sick, or impaired.”   

Carmen testified that he conducted a traffic stop on the vehicle “[t]o check the welfare, to make sure the driver wasn’t falling asleep, sick, or impaired.”  The deputy explained that when he stopped the defendant he explained to her that the reason she was stopped was because he noticed that she wasn’t maintaining a single lane and she drifted into the shoulder twice.   

The trial court entered an order granting the defendant’s motion to suppress. The trial court found that the deputy observed the defendant make a U-turn and head southbound.  He then followed the vehicle and observed the vehicle swerve with its right tires going over the right shoulder line.  The court also found that the deputy’s articulated reason for the stop was to check the welfare of the driver whom the deputy though might be falling asleep or intoxicated.  Finally, the trial court found that the deputy  had conducted over one thousand DUI investigations.

The trial court concluded “[b]ased on the facts of this case and after considering the totality of the circumstances, this Court agrees with the defense that the deputy lacked probable cause or reasonable suspicion to stop the defendant’s vehicle.” The court cited DHSMV v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992), State v. Davidson, 744  So. 2d 1180 (Fla. 2d DCA 1999) and State v. Christiansen, Case No. CRC04-00663CFAES (6th Circuit Court, April 2005).

The State argues that the stop was justified after the observation of an erratic driving pattern which included both right side tires of the vehicle crossing the shoulder line two times within a short period of time, coupled with the belief that the driver may be sick, tired or impaired. This Court agrees. As argued by the State, the stop of a vehicle weaving within its own lane is justified even without rising to the level of an infraction, to determine if the operator is under the influence of alcohol or drugs or just having mechanical problems.  Bailey v. State, 319 So. 2d 22 (Fla. 1975).[1] An officer’s observation of a vehicle weaving within its own lane, even if the weaving does not interfere with or endanger other drivers, coupled with an officer’s suspicion that another crime is being committed can provide the required founded suspicion to stop that vehicle. Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999).[2] 

This Court finds that the trial court misinterpreted Christiansen.  The arresting officer in Christiansen never indicated that he made the stop based on anything other than what he perceived to be probable cause for a DUI arrest.  The officer did not say he was concerned about a possible health issue on the part of the driver or possible vehicle malfunctions.  Thus, the officer had no suspicion other than DUI, and the driving was insufficient to establish a founded suspicion of DUI. Under those facts, this Court ruled in favor of the defendant.  However, there was a companion case to Christiansen;   State v. Murphy, which it appears the trial court may have overlooked. In Murphy,   the officer attempted to explain the basis of the stop, but the trial court prevented him from testifying. This Court specifically remanded for further fact finding to determine the critical facts as to exactly why the officer stopped the defendant.  Although the driving may not establish a founded suspicion to stop for DUI in the instant case, the officer testified that he was concerned about other matters, specifically, “to check the welfare, to make sure the driver wasn’t falling asleep, sick, or impaired.” Thus, unlike Christiansen, the officer was justified in conducting the stop.   

 

IT IS THEREFORE ORDERED that the decision of the trial court is REVERSED. 

 

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

                                                                                   

________________________

                                                                                     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

Neil O’Brien, Esq. A.S.A. 

Kenneth W. Lockwood, Esq. A.P.D.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


[1] Bailey v. State, 319 So. 2d 22 (Fla. 1975)(Florida Supreme Court upheld traffic stop of driver even where there were no circumstances which would reasonably have led the officer to believe criminal activity was taking place; “because of the dangers inherent to our vehicular mode of life…”.  

[2] Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999)(police officer can stop vehicle based on founded suspicion that driver is under the influence, even where driver is not committing separate traffic offense.) .