County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - an officer needs no basis for approaching a person in a public place, identifying himself as an officer, and asking questions-deputy approached appellee to ask him why he was squealing his tires; why he was in a handicapped space without a visible handicapped sticker; and whether or not he knew the subject of the domestic violence injunction- no evidence in this record that appellee felt in any way restrained-would have been free to leave and no reasonable person would have believed otherwise.  Order granting motion to suppress reversed.  State v. Roth, No. 0605021CFAWS (Fla. 6th Cir.App.Ct. ( July 12, 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: 0605021CFAWS

DOUGLAS ROTH,                                                     Case No: 06519723XTWS

                        Appellee.                                                         

________________________/

 

Appeal from Pasco County Court

 

Senior Judge David Seth Walker  

 

Sean  T.  Donovan, Esq. A.S.A.  

for Appellant

 

No appearance by Appellee

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal of the trial court's order granting defendant’s Motion to Suppress. After reviewing the briefs and record, this Court reverses the trial court’s decision.

Deputy Gay testified that while at an apartment complex, attempting to locate a subject in order to serve a domestic violence injunction, he had asked several people on how to find the subject of the DVI, but was not able to locate him.  While standing next to his patrol car,  getting ready to leave, he heard tires squealing near the gate entrance.  He looked over and saw a green vehicle driving through the smoke. Gay testified that, based on his training and experience, his concern with someone driving in this manner is that the driver may be impaired. 

Gay testified that after squealing the tires, Roth drove into the parking area where Gay was parked.   As Roth drove by, Deputy Gay asked “[w]hat’s with the squealing tires?” After driving by Gay, Roth parked his car in a handicapped parking space.  Gay explained that he did not observe any handicap stickers on his vehicle.  Gay approached Roth to talk to him about the squealing tires and why he was parked in the handicap parking space. Gay stated that he did not have lights and sirens activated at the time, as his own vehicle  was in a parking space; nor did he have his gun drawn. The deputy testified that he also asked defendant about the name on the domestic violence injunction.

The trial court erred in granting the Motion to Suppress.  In the present case, the totality of the circumstances would support a finding that the initial contact between the officer and Roth was a consensual encounter.  A consensual encounter occurs when a police officer approaches a citizen and interacts in a manner such that a reasonable person would believe he was free to terminate the encounter and leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In such circumstances, Fourth Amendment protections are not triggered.  Thus, an officer needs no basis for approaching a person in a public place, identifying himself as an officer, and asking questions.  State v. Hughes, 562 So. 2d 795 (Fla. 1st DCA 1990).   In this case, the record reveals that the deputy merely approached Roth to ask him why he was squealing his tires; why he was in a handicapped space without a visible handicapped sticker; and whether or not he knew the subject of the domestic violence injunction. Once the officer approached, he made his observations. There is no evidence in this record that Roth felt in any way restrained.  Under these circumstances, Roth would have been free to leave and no reasonable person would have believed otherwise.  See M.W.H. v. State,  32 FLW D1410 (Fla. 5th DCA  2007).

It is therefore,  

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

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

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

 

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable David Seth Walker

Sean T. Donovan, Esq. A.S.A.

Sonny Im, Esq.