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
v. Roth, No. 0605021CFAWS (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
Appeal No: 0605021CFAWS
DOUGLAS ROTH, Case No: 06519723XTWS
Senior Judge David Seth Walker
Sean T. Donovan, Esq. A.S.A.
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.
ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.
DONE AND ORDERED in Chambers at New
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Honorable David Seth Walker
Sean T. Donovan, Esq. A.S.A.
Sonny Im, Esq.