Criminal Court: CRIMINAL LAW-DUI-Checkpoint- clear purpose of lighting and warning on the roadway, in advance of the stop, is to reduce threat of startling the driver, and alert motorists that they are approaching something legitimate; it is not to give them advance notice so that they may turn and avoid the checkpoint.  Order of Suppression reversed.  State v. Bradley, 0606806CFAWS,  State v. Smith, 0606804CFAWS, State v. Miller, 0606805CFAWS, (Fla. 6th Jud. Cir. November 30, 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.                                                                                 Appeal No: 0606806CFAWS

                                                                                    Lower No: CTC069976XANTWS

PETER BRADLEY,      

            Appellee.

____________________/

 

 

STATE OF FLORIDA,

                                                                                    Appeal No.: 0606804CFAWS

v.                                                                                 Lower No.: CTC06519563XTWS

 

JAMES RUSSELL SMITH

______________________/

 

STATE OF FLORIDA,

                                                                                    Appeal No.: 0606805CFAWS

v.                                                                                 Lower No: 06519355XTWS

 

JOHN JAY MILLER,

_____________________/

 

Neil P. O’Brien, Esq., A.S.A

for appellant.

 

Robert W. Attridge, Jr., Esq.

for appellee.

 

 

ORDER AND OPINION

 

On March 17, 2006, the appellee’s were arrested and issued a Uniform Traffic Citation for Driving Under the Influence. Each entered a written plea of not guilty and filed  a Motion to Suppress contesting the stop on grounds that the Traffic Stop Checkpoint lacked the constitutional safeguards and thus contrary to the U.S. Constitution and the Constitution of the State of Florida.  An evidentiary hearing was then set for November 7, 2006, at which time all three cases were heard together. The trial court then conducted an evidentiary hearing and after doing so entered an order granting the appellees’ Motion to Suppress. 

At the hearing, Lt. Scott Baker testified that on March 17, 2006, he was involved with a comprehensive safety checkpoint on Massachusetts Avenue, in front of the Kash N’ Karry. He testified that there were about 11 or 12 officers all together, and all of the officers wore their duty uniforms and traffic safety vests. Baker stated that there were several patrol vehicles at the scene, with emergency lights on. Baker testified that he drafted the written plan outlining the duties and responsibilities of personnel working the safety checkpoint, both the Comprehensive Safety Checkpoint and the Comprehensive Traffic Checkpoint Operational Plan. Baker testified that the written plan establishes guidelines and criteria to be used in the checkpoint. He testified that part of the checkpoint criteria was the  use of a warning device, and that the department uses a lighted signboard that indicates the checkpoint is on the roadway. He  further testified that there was a lighted sign at the checkpoint on March 17, just west of Anderson Street, on Massachusetts, on the south side of the road. The sign was placed two streets before the actual checkpoint,  the two streets being Anderson Street and Davis Street.  He  stated that there were traffic cones in front of the Congress Shopping Center, all the way back towards the area of Davis Street. He testified that purpose of placing the checkpoint signs far in advance of the checkpoint is to warn approaching drivers that a checkpoint is ahead.   He said that it allows the drivers to turn off if they do not want to participate in the checkpoint.  He explained that a motorist could turn down either Anderson Street or Davis Street to avoid the checkpoint. Baker testified that he designated Davis Street as the alternate route and they had an officer posted at that location the entire time.  He explained that each of the officers had their reflective vests with traffic wands, the cruisers where there, and there was a stand alone light with a generator lighting system that teleports up and lights up the entire parking lot.   

Baker went on to testify that the department sent out a press release to all of the local newspapers prior to the event; St. Pete Times, Tampa Tribune, and The Suncoast News. He testified that he sent out the press release three days in advance. Baker went on to state that only the Suncoast News printed something about the checkpoint. 

Baker testified that the lighted sign stated “TRAFFIC SAFETY CHECKPOINT-PREPARE TO STOP.” The officer acknowledged that the sign did not indicate the motorist could turn around or take an alternate route. The officer stated that he talked to four people that night, and one of the four said he was a little bit confused by the checkpoint. Baker said he did not go back and try to make changes, because he said he didn’t’ think there was any confusion and it was “pretty defined on the roadway.”

At the conclusion of the hearing, the court found that the safety of the motorists going through the traffic stop was not in question. The court also found that the degree of the  intrusion upon motorists and the length of detention appeared to be slight. However, the court went on to find that there was no meaningful notice prior to the traffic stop. The court stated “I don’t think that the circumstances in this particular traffic stop gave those involved the sufficient ability to choose the alternative to which they are legally entitled; therefore, the motion to suppress is granted.”  This was error.

            This Court is mindful that the law is somewhat vague. However, the clear purpose of the lighting and warning on the roadway, in advance of the stop, is to reduce the threat of startling the driver,  State v. Jones, 483 So. 2d 433 (Fla. 1986), and to alert motorists that they are approaching something legitimate; it is not to give them advance notice so that they may turn and avoid the checkpoint.  U.S. v. Trevino, 60 F.3d 333 (7th Circ. 1995).  We find that the police in this case did provide adequate notice so as to avoid or reduce the potential for fear in motorists. It is, therefore,

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

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

                                                                                    ________________________

                                                                                     W. Lowell Bray, Jr.,

Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                   

______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Neil P. O’Brien, Esq. A.S.A.

Robert W. Attridge, Jr. Esq.