Court: CRIMINAL LAW – Search and Seizure – Stop – Stop justified where
police saw defendant haphazardly parked in area that had increased auto theft,
slumped over the steering wheel with engine running and headlights on, and
officer testified that he believed defendant either ill or DUI. Officer parking
behind car not significant because defendant unaware her car was blocked. Order
granting defendant’s motion to suppress reversed. State v. Roosa, No.
CRC 06-50 APANO, (
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 06-50 APANO
SARA LYNN ROOSA
Opinion filed ____________________.
Appeal from a decision of the
Honorable John Carballo
Andrew Taylor, Esquire
Assistant State Attorney
Marc N. Pelletier, Esquire
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.
Approximately 3:30 A.M. a police officer with nine years experience saw a car parked haphazardly in a hotel parking lot --- the vehicle was not fully into the parking space, protruding into parking lot traffic. The engine was running and the headlights were on. The general area had an increased number of auto thefts. The officer testified that the driver, the defendant, was lying slumped over the wheel and appeared to be sleeping. The officer testified that he believed the defendant was either ill or DUI. The officer parked behind the defendant’s car, partially blocking it, --- the officer testified the lot was full and it was the only place to park --- and went to investigate. When the officer arrived at the vehicle, he knocked on the window several times. The defendant looked at the officer and said: “no, no, no.” She then laid back in the driver’s seat and either passed out or went back to sleep. After several more knocks on the window and the roof of the vehicle, the defendant rolled down the window a bit. At that point the officer noticed a strong odor of alcohol. He also noticed the defendant’s slurred speech. The defendant was ultimately arrested for DUI. She brought a motion to suppress, which the trial court granted. The State is appealing that order.
A trial court’s
determination of reasonable suspicion to conduct an investigatory stop or
detention is subject to de novo review. Ornelas v.
review of the transcript of the hearing reveals that the trial court relied
upon Danielewicz v. State, 730 So.2d 363 (
this case is actually a consensual encounter. The defendant was not detained by
the officer’s act of merely parking behind her.
Because she was either asleep or unconscious, she was completely unaware
that she had been blocked in by the officer. There
has been a difference of opinion on whether or not the act of a police officer in
parking behind a motorist is actually detaining the motorist when the motorist
is either asleep or unconscious and unaware of the officer’s presence. In Head
v. State, No. CRC 03-8 APANO (Fla. 6th Cir. App. Ct. May 4, 2005),
one appellate panel of this circuit held that a sleeping motorist could not
have been aware that he was seized, stopped or detained when the police parked
behind him; therefore, he was not seized for purposes of the Fourth Amendment. In Chavarria v. State, No. CRC
02-14774 CFANO (
IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is reversed, and this case is remanded to the trial court for action consistent with
this Order and Opinion.
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 Thomas B. Freeman
Marc Pelletier, Esq.