Criminal County Court: CRIMINAL LAW --- Search and Seizure – Stop --- trial court erred in finding that a citizen encounter can only be based upon a well founded suspicion-officer in present case testified he was worried about driver’s health-lower court made no findings regarding officer’s concerns-reversed and remanded for further consideration. Reversed and remanded. State v. Avery, CRC0400140CFAES (Fla. 6th Cir. App. Ct. September 4, 2008).
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
v. CASE NO: 04-00140CFAES
Bryan Sarabia, Esq. APD
Attorney for Appellant.
Dale Brewster, Esq.
Attorney for Appellee.
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal of the trial court's order granting the defendant/appellee’s Motion to Suppress. After reviewing the briefs and record, this Court REVERSES the trial court’s decision.
The defendant/appellee was charged with DUI and
filed a motion to suppress based on a lack of reasonable suspicion to conduct a
traffic stop. At the motion to suppress Officer Kirkpatrick testified that, while
The trial court granted the Motion to Suppress, finding that the initial encounter was an investigatory stop and that the officer did not have reason to believe that the defendant had committed or was about to commit a criminal activity. The court specifically cited to Danielewicz v. State, 730 So. 2d363 (Fla. 2d DCA 1999).
We reverse the
lower court’s order granting the appellee’s Motion to
The lower court’s order is apparently based on the proposition that a
citizen encounter of the type involved in the instant case can only be based
upon a well founded suspicion that the appellee had
committed, was committing or was about to commit a crime. While this was, in fact, the holding in Danielewicz, it should be
noted that the court specifically pointed to the fact that the officer
involved in Danielewicz “…did not testify that he was concerned for the driver's
personal health”, whereas, the officer in the instant case testified that he
was concerned for the health of the appellee. It is clear that a citizen encounter may also
be justified by legitimate concerns for the driver’s health. State v. Baez, 894
So.2d 115 (
ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.
DONE AND ORDERED in chambers in New Port Richey,
Primary Appellate Judge
Copies furnished to:
Brian Sarabia, Esq., ASA
Dale Brewster, Esq.