County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Evidence --- Hearsay testimony was permissible for trial court to consider in ruling on defendant’s motion to suppress even though witness did not have independent recollection of events. Order granting motion to suppress affirmed. Linsley v. State, No. CRC 06-55 APANO (Fla. 6th Cir.App.Ct. Feb. 29, 2008).

 

 

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

 

 

PETER LINSLEY

 

            Appellant,

 

Appeal No. CRC 06-00055APANO UCN522006AT000055XXXXCR

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Denying

Motion to Suppress

entered by the Pinellas County Court

County Judge Paul A. Levine

 

Eilam Isaak, Esquire

Attorney for Appellant

 

Nathan T. Vonderheide, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Peter Linsley’s appeal from a judgment entered by the Pinellas County Court. The defendant pleaded no contest to Driving Under the Influence but reserved his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment.

Factual Background and Trial Court Proceedings

            On April 17, 2004, Appellant, Peter Linsley, entered a roadside sobriety checkpoint.  Appellant entered a lane where he came in contact with Deputy Curtis Kindle of the Pinellas County Sheriff’s Department.  Deputy Kindle noted signs of impairment and requested Appellant perform Field Sobriety Exercises.  After Appellant performed poorly on those exercises he was placed under arrest for Driving Under the Influence.  The Appellant filed a motion to suppress requesting the trial court to suppress all evidence obtained at the roadside sobriety checkpoint.  At hearing on the motion to suppress the State presented the testimony of Deputy Kindle who testified on direct examination without objection.  During cross examination the deputy testified that he did not have an independent recollection of the events in question.  In final argument on the motion to suppress Appellant’s counsel asked the trial court to grant the motion to suppress because of the lack of independent recollection of Deputy Kindle.  The trial court denied the Motion to Suppress.

The Issue

Appellant’s argues that the trial court erred in allowing testimony, at a suppression hearing, contrary to the requirements of § 90.803(5) Fla. Stat.  Appellant relies on K.E.A. v. State, 802 So2d 410 (Fla. 3rd DCA 2001) as principal supporting authority.

 

 

Standard of Review

Our review of a trial court's ruling on a motion to suppress evidence involves a mixed question of law and fact. We accord a presumption of correctness with regard to the trial court's determination of facts where the trial court's factual findings are supported by competent, substantial evidence. However, we review the trial court's application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001); State v. Pruitt, 967 So2d 1021 (Fla. 2nd DCA 2007).

Evidentiary Hearings on Motions to Suppress.

1. Evidentiary Requirements.  The hearing conducted in the present case was not a trial it was an evidentiary hearing on a motion to suppress.   At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980); United States v. Matlock, 415 U.S. 164, 172-74, 94 S.Ct. 988, 993 995, 39 L.Ed.2d 242 (1974); United States v. Boyce, 797 F.2d 691 (8th Cir.1986); Ferrer v. State, 785 So2d 709 (Fla. 4th DCA 2001); see also Lara v. State, 464 So2d 1173 (Fla. 1985); Harris v. State, 826 So2d 340 (Fla. 2nd DCA 2002).  The right of confrontation does not apply to the same extent at pretrial suppression hearings as it does at trial. The interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. Ferrer, 785 So2d at 711.

2. The Present Case.  In the present case, Appellant’s point on appeal is that the trial court erred in allowing testimony contrary to the requirements of § 90.803(5) Fla. Stat., which is one of the exceptions to the hearsay rule.  The fundamental difficulty with the Appellant’s argument is that hearsay evidence is admissible at a suppression hearing and the exceptions to the hearsay rule are not an issue.  The Appellant’s reliance on the K.E.A. case is misplaced.  That case involved evidence submitted at a trial, not a suppression hearing.

Secondly, all of the testimony of Deputy Kindle was before the trial court and became part of the evidence without contemporaneous objection or motion to strike from the Appellant.  To prevent the admission of such evidence a timely objection or motion to strike must be made stating the specific grounds for the objection. § 90.104(1)(a) Fla. Stat. (2004); Winn Dixie Stores, Inc. v. Merchant, 652 So2d 1206 (Fla. 4th DCA 1995).  It was not until final argument on the motion to suppress that Appellant’s counsel asked the trial court to grant the motion to suppress because of the lack of independent recollection of Deputy Kindle.  Even then the Appellant did not ask that the deputy’s testimony be stricken.  The testimony remained before the court as part of the evidence in the case and was usable as proof just as any other evidence.  Tallahassee Furniture Company v. Harrison, 583 So2d 744 (Fla. 1st DCA 1991); Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla.1987).

Conclusion

            The order of the trial court denying Appellant’s Motion to Suppress should be affirmed.

            IT IS THEREFORE ORDERED that the order of the trial court denying Appellant’s Motion to Suppress is affirmed.

ORDERED at Clearwater, Pinellas County, Florida this ____ day of February, 2008.

 

 

 

_____________________________

Michael F. Andrews                                               Circuit Court Judge

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

                                                           

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

           

cc:        Honorable Paul A. Levine     

            Eilam Isaak, Esquire

            Office of the State Attorney