County Criminal Court:  CRIMINAL LAW – Traffic Stop – DETENTION-– detention of the appellant, while waiting for the arrival of the STEP unit deputy to conduct the investigation, did not transform the encounter  into a seizure without probable cause- Having probable cause to arrest the appellant himself, it is clear that the deputy  was clearly justified in detaining the appellant for the time it took to get a more highly specialized officer on the scene.  Order affirmed.  Littlejohn v. State, No. 0605304CFAWS, (Fla. 6th Cir. App. Ct. November 30, 2007).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JOSHUA LITTLEJOHN,

            Petitioner,

 

vs.                                                                    Appeal No: 0605304CFAWS

 

STATE OF FLORIDA,       

Respondent.

____________________________/

 

Curtis Crider, Esq.

For appellant.

 

Neil P. O’Brien, Esq. A.S.A.,

For appellee.   

 

ORDER AND OPINION

 

On March 24, 2005, the appellant was charged by Information with three misdemeanors; Possession of Marijuana, Possession of Paraphernalia and DUI.  Appellant filed a motion to suppress and a hearing was held on June 21, 2005. The Court denied the Motion to Suppress and appellant now appeals, raising two issues for review. First, the trial court erred in denying the defendant’s motion to suppress based on an illegal traffic stop, and second, the trial court erred in finding the defendant was not illegally detained and that the time period to issue the citation was reasonable. After reviewing the briefs and record, this Court affirms the trial court’s decision.     

At the hearing, Deputy Thomas testified that on February 19, 2005, at approximately 3:00 a.m., he observed the appellant operating his vehicle Westbound on Trouble Creek Road.  The deputy followed appellant for approximately 1 ½ to 2 miles. He testified that he observed defendant’s vehicle veer off to the right side (about a foot and a half or so) of the road. He was asked if the vehicle actually ran off the road and across the fog lines, and he said it did. He further explained that as they approached Madison and Trouble Creek, there was a flashing red light and a flashing yellow light. The red flashing light is for east and westbound traffic, so they have to stop; the yellow flashing caution light is for north and southbound traffic. The deputy testified that when defendant reached the intersection he did stop the vehicle, but he stopped in the middle of intersection. When asked how far into the intersection, the deputy explained “half his car length in front of the crossbar area…”.  The deputy went on to explain that they then continued westbound and appellant went off the road one more time to the right, “veered off to the right” and he then conducted a traffic stop.

After hearing the evidence, the court denied the appellant’s motion to suppress.  Although the court found that the deputy’s testimony did not support a traffic stop for careless driving; the court did find that the defendant violated F.S. 316.076.[1] This Court finds that the trial court did not error, since a violation of  F.S. 316.076(1)(a) is sufficient probable cause to conduct a stop.  

However, based on the deputy’s testimony, the defendant filed a second Motion to Suppress, alleging the deputy held the defendant longer than necessary to write a traffic infraction.  At the appellant’s first motion to suppress hearing, Deputy Thomas testified that :

In this particular case I didn’t put in my notes that I smelled an odor of alcohol, I can’t testify to that or, you know, be sure of that, but I did call for another deputy.

I can only assume that, you know, if I called for another deputy its because I smelled one of those things, but I can’t testify that I did actually smell alcohol because I didn’t write it in my notes.   

 

At the  second hearing on the motion to suppress, the deputy was asked to explain what, if anything, he noticed about the driver the moment he approached him after the stop, and the deputy replied: “I  could smell an odor of alcohol.” He testified that he has had a chance to review the transcript of his testimony, which reflected the same information as was contained in the probable cause affidavit.  He acknowledged that at the last hearing, he did testify that he was pretty sure he had smelled alcohol on appellant’s breath because that is the only reason why he would have called the STEP unit. He was then asked “Deputy, after having reviewed the PC affidavit and other documentation concerning this offense are you able to say a hundred percent that you remember smelling alcohol?” and he replied “Yes.”

Thomas then testified that he called the STEP deputy, while walking back to his car.  He stated that when he called the STEP unit, he had not written the citation out and he wrote the citation when the STEP deputy was in route. The deputy testified that it took the STEP unit about 10 to 15 minutes to arrive. He then testified that about 35 minutes elapsed from the time of the stop until appellant was arrested by the STEP deputy.

The trial court denied the defendant’s second motion to suppress, finding that the defendant was not illegally detained because the DUI investigator arrived prior to the issuance of the traffic citation and the time period to issue the citation was reasonable.  This Court agrees.  A person may not be detained for a traffic violation for any longer than is necessary to issue a citation. Summerall v. State, 777 So. 2d 1060 (Fla. 2d DCA 2001).  Deputy Thomas testified that he had not finished issuing the citation before the DUI unit arrived on scene and found cause to conduct a DUI investigation of defendant.  The record reveals that defendant was detained by Deputy Thomas for only 10 to 15 minutes while the deputy worked on the citation, and that the entire detention amounted to approximately 35 minutes. Accordingly, this Court finds that the defendant was not illegally detained and further finds that the time period to issue the citation was reasonable. 

Appellant argues that there are no articulable facts which would indicate that a continued detention was warranted, and that based on the credibility problems with the deputy’s testimony, the record does not contain substantial competent evidence necessary to allow an investigatory detention of the appellant.  However, the trial court is in the best position to weigh credibility and its decisions on credibility should not be lightly overturned. Hurst v. State, 941 So. 2d 1252 (Fla. 1st DCA 2006).  Here, the trial court found the deputy’s testimony credible. Moreover, independent evidence in the record supports Deputy Thomas’ testimony.

IT IS THEREFORE ORDERED that the ruling of the trial court be AFFIRMED.

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

                                                                                   

________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Curtis Crider, Esq.

Neil P. O’Brien, Esq. A.S.A.



[1] “Flashing red (stop signal). –When a red lens is illuminated with rapid intermittent flashes, driers of vehicles shall stop at a clearly marked stop line, ….”.