County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop justified where police saw defendant stopped at red light with her heard bobbing up and down as if asleep and finally slumping over as if asleep or passed out. Judgment and sentence affirmed. Stenmark v. State, No. CRC 06-29 APANO, (Fla. 6th Cir. App. Ct. April 23, 2007).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

DEBORAH STENMARK

 

            Appellant,

 

                                                                              Appeal No. CRC 06-26 APANO

v.                                                                                                                                                       UCN522006AP00026XXXXCR

 

 

STATE OF FLORIDA

 

            Appellee.

______________________________/

 

 

Opinion filed ___________________.

 

 

Appeal from a decision of the

Pinellas County Court

Honorable County Judge John Carballo

 

Jennifer Card, Esq.

Attorney for appellant

 

Erin McKenney, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant, Deborah Stenmark’s,


appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The defendant is appealing the trial court’s decision to deny her motion to suppress. She pleaded no contest to DUI charges, reserving her right to appeal the denial of her motion to suppress. [1]      

            Approximately 2:00 A.M. a police officer observed the defendant stopped at a red traffic light. The defendant’s head was bobbing up and down as if she was falling asleep. According to the officer’s testimony: “After it bobbed a few times, her head finally slumped over as if she had passed out.” The officer testified that he thought the defendant may have been having a medical problem or was possibly impaired. The officer is certified in drug and alcohol impairment recognition and has participated in approximately 300 DUI arrests. The officer conducted a traffic stop, and the defendant was ultimately arrested for DUI. In this appeal, the defendant claims the trial court erred in not granting her motion to dismiss.

            The defendant argues that her actions were consistent with innocent behavior ---- her version of events is that she spilled food and drink on herself and her car floor and was looking down to clean it off her and pick up the spilled food. She denied falling asleep or passing out. These circumstances concerning the spilled food and drink, however, even if taken as being true, would not be known to the officer who had just noticed the defendant.

A trial court’s determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review. Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997). “Appellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court’s application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). “A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001).

            There is nothing to indicate that the trial court did not believe the testimony of the officer. His testimony that he believed the defendant had fallen asleep or passed out while in a motor vehicle stopped at a red light with the engine running is an objective reason justifying an investigatory stop. In determining whether or not an investigatory stop is justified, the court is to look at the totality of the circumstances. Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004). In considering the totality of the circumstances in this case, the officer’s decision that the defendant was ill or impaired is reasonable. As noted by the trial court: “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). The stop was valid. Accordingly, the motion to suppress was properly denied.

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

 

DONE AND ORDERED this _____ day of April, 2007.

 

 

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable John Carballo

 

            Jennifer Card, Esq.

 

 

 



[1] This Court notes the decision in Stenmark v. Department of Highway Safety and Motor Vehicles, 941 So.2d 1247 (Fla. 2d DCA 2006), in which the Second District Court of Appeal found in the administrative proceedings on the suspension of the defendant’s driver’s license that the officer had sufficient reason to conduct a traffic stop. That case, however, is not dispositive to the case at bar because the standards of review are different, and the facts are somewhat more developed in this criminal proceeding.