County Criminal 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, (Fla. 6th Cir. App. Ct. June 15, 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

 

 

 

STATE OF FLORIDA

 

            Appellant,

 

 

v.                                                                                                                                                                   Appeal No. CRC 06-50 APANO

                                                                                   UCN522006AP000050XXXXCR

 

 

SARA LYNN ROOSA

 

            Appellee.

_____________________________/

 

 

Opinion filed ____________________.

 

Appeal from a decision of the

Pinellas County Court

Honorable John Carballo

 

Andrew Taylor, Esquire

Assistant State Attorney

 

Marc N. Pelletier, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

            (J. Demers)

 

 

            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. 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).

            A review of the transcript of the hearing reveals that the trial court relied upon Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). In that case the Second District held that a police officer did not have a reasonable suspicion of criminal activity when he observed the defendant in a parked car in a parking lot of a mall asleep with the headlights on and the engine running. Unlike Danielewicz, however, the officer in the case at bar testified that the defendant’s vehicle was parked haphazardly, the defendant was slumped over the wheel, and he feared the defendant was either ill and needed assistance or was impaired. In addition, unlike in Danielewicz, the area in the case at bar had seen an increased number of auto thefts. Finally, the officer did not order the defendant out of her vehicle as in Danielewicz. These differences distinguish this case from Danielewicz. The most important difference is that in the case at bar the officer testified that he was concerned that the defendant might have a medical emergency. Contrast that to the Danielewicz case where the appellate court specifically noted: “[t]he officer did not testify that he was concerned for the driver’s personal health.” Id. at 364. See also Vitale v. State, 946 So.2d 1220 (Fla. 4th DCA 2007)(excessive slumping of  defendant over wheel in parked vehicle with its engine running was sufficient to justify stop).

            Moreover, 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 (Fla. 6th Cir. App.Ct. Jan. 15, 2004), however, another appellate panel of this circuit found, under similar circumstances, that an objective reasonable person would believe he had been stopped. Subsequent to both Head and Chavarria, the case of  Houston v. State, 925 So.2d 404 (Fla. 5th DCA 2006) was decided. In Houston, the court held that because the defendant was unaware that the police had blocked his vehicle by parking behind him, there was no seizure. In light of the Houston case, this Court recedes from Chavarria and finds that knowledge on the part of the defendant that his or her vehicle has been blocked is a prerequisite to a finding that a stop or seizure has taken place under circumstances such as this where the defendant is either asleep or unconscious.

            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.

            ORDERED in Pinellas County, Florida this _____ day of June, 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 Thomas B. Freeman

 

                        Marc Pelletier, Esq.