Criminal County Court: CRIMINAL LAW --- Search and Seizure Ė Stop ---

Investigation was proper where police were informed defendant was passed out in vehicle; when they arrived headlights were on, keys in ignition, and police observed alcohol-smelling vomit around car, on car, and on defendant. Judgment and sentence affirmed. Anderson v. State, No. CRC 06-88 APANO (Fla. 6th Cir. App. Ct. December 5, 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

 

DEVON TODD ANDERSON

 

††††††††††† Appellant,††††††††††††††††††††††††††††††††††††††††††††

v.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 06-88 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522006AP000088XXXCR

 

STATE OF FLORIDA

 

††††††††††† Appellee.

___________________________/

 

Opinion filed ________________.

 

Appeal from a judgment and sentence

imposed by the Pinellas County Court

County Court Judge John D. Carballo

 

Curtis M. Crider, Esquire

Attorney for appellant

 

Jason Bard, Esquire

Assistant State Attorney

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendant, Devon Andersonís, appeal from a judgment and sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the decision of the trial court.

The defendant entered a no contest plea to DUI charges, reserving his right to appeal the denial of his motion to suppress. The defendant claims all evidence following his initial detention should be suppressed because he was improperly detained. A trial courtís 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). ďAppellate 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 courtís application of the law to the facts.Ē Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). ďA reviewing court must accept the trial courtís 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.Ē Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001).

††††††††††† An employee of Publix contacted the sheriffís department and informed them about an individual who was passed out in a vehicle in the Publix parking lot. A deputy responded to the scene and found the defendantís vehicle parked. The windows were down, the headlights were on, the keys were in the ignition and the dome light was dimly lighted. He observed vomit on the asphalt outside the driverís door and also on the passengerís seat. There was a distinct odor of alcohol coming from both the vomit and defendant. The defendant was passed out behind the wheel, lying back in the driverís seat. He had vomit on his shirt and chin. The deputy testified he was concerned for the defendantís health. He then removed the keys from the ignition to prevent the vehicle from moving, and attempted to wake the defendant. The defendant was ultimately arrested for DUI.

††††††††††† Contrary to the assertions of the defendant, this situation is not like that in Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). In Danielewicz there was no call from a citizen informant, and there was no testimony that the officer was concerned about the health of the defendant --- there being no signs of vomit about the vehicle or defendant there. The biggest difference, however, is that in the case at bar the deputy developed reasonable suspicion to believe the defendant was DUI based solely upon his observations. The deputy could see the defendant in actual physical possession of a motor vehicle and there was evidence that the defendant had consumed alcohol and was impaired. The testimony was that the keys were in the ignition, and were partly turned because the dome light was on. In addition, there was an odor of alcohol coming from the defendant which the deputy could smell because the windows were down. Moreover, there was vomit smelling of alcohol around and in the vehicle. In Danielewicz, prior to the seizure, there was no apparent evidence that the occupant of the vehicle had consumed alcohol.

††††††††††† The trial court correctly denied the defendantís motion to suppress. Therefore, the judgment and sentence is affirmed.

††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

††††††††††† ORDERED at Clearwater, Florida this _____ day of December, 2007.

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Linda R. Allan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Circuit Court Judge

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† R. Timothy Peters

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Circuit Court Judge

cc:††††††† Curtis M. Crider, Esquire

††††††††††† Office of the State Attorney

††††††††††† Honorable John D. Carballo