County Criminal Court:
CRIMINAL LAW – DUI – Motion to Suppress—Based on totality of the
circumstances where an officer observed the erratic operation of a motor
vehicle for a sufficient period of time, the officer’s investigatory stop of
the vehicle was lawful - Order denying motion to suppress affirmed. Cook v. State, No.
6th Cir.App.Ct. Jan.24, 2008).
NOT FINAL UNTIL TIME EXPIRES FOR
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH
OF THE STATE OF FLORIDA
IN AND FOR PINELLAS COUNTY
CHARLES E. COOK
Appeal No. CRC 07-00003APANO
STATE OF FLORIDA
Opinion filed _____________________.
Appeal from an Order Denying
Motion to Suppress
entered by the Pinellas County Court
County Judge William H. Overton
Mark J. Ware, Esquire
Attorney for Appellant
C. Marie King, Esquire
Attorney for Appellee
ORDER AND OPINION
MATTER is before the Court on Appellant, Charles E. Cook’s appeal from a
decision of the Pinellas County
Court to deny Appellant’s motion to suppress. The
Appellant pleaded no contest to Driving Under the Influence, Failure to Drive
Within a Single Lane, and Violation of Driver’s License Restrictions 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
At approximately 1:00
a.m. on March 21, 2006, Sergeant David Persyn of the Treasure Island Police
Department observed the Appellant operating a motor vehicle. It appeared Appellant’s vehicle was not going
to stop at a red traffic signal until it stopped late. The signal had been red for some time. Sergeant Persyn began to follow the vehicle
and it began swerving within its lane and at times crossing over into the
median lane straddling both lanes and then would go back to the right and
nearly strike the curb on the right side of the road. There was no other traffic affected. Sergeant Persyn observed the Appellant’s
vehicle for six tenths of a mile. Based
upon his training and experience Sergeant Persyn thought the Appellant may be
impaired or having some medical issue. He then initiated a traffic stop as the
Appellant made an abrupt turn into a restaurant parking lot. Sergeant Persyn
issued the Appellant three citations. The
citations were for Driving Under the Influence, Failure to Drive Within a
Single Lane, and Violation of a Driver’s License Restriction. Sergeant Persyn has twelve years experience in
law enforcement and has received training in DUI Investigations.
The Appellant filed a
motion to suppress asserting that there was no lawful basis for the traffic
stop. That motion was denied after
hearing. The Appellant reserved the
right to appeal the denial of his motion to suppress.
Standard of Review
Our review of a trial
courts 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
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).
1. Stops for
Traffic Infractions or Suspected Crimes. It is well established that the
prohibition against unreasonable searches and seizures contained in the Fourth
Amendment of the United States Constitution applies to investigatory stops of
automobiles. United States
v. Cortez, 449 U.S.
411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic
stop under the Fourth Amendment thus requires courts to determine whether the stop
was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). The constitutional
reasonableness of a traffic stop under the Fourth Amendment does not depend on
the actual, subjective motivations of the individual officers involved in
conducting the stop, but rather it depends on the validity of the basis
asserted by the officers involved in the stop. Whren v. United
States, 517 U.S. 806, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996). The Florida Supreme
Court has adopted this objective test. Holland v. State, 696 So2d 757 (Fla. 1997). The correct test to be applied is whether the
particular officer who initiated the traffic stop had an objectively reasonable
basis for making the stop. Dobrin v. Department of Highway Safety & Motor Vehicles,
874 So2d 1171 (Fla.
2004). Specifically, in the Whren case,
the United States Supreme Court held that the temporary detention of a motorist
is reasonable when an officer has probable cause to believe that the motorist
has committed a traffic infraction.
To justify an investigatory stop, the
officer must have a reasonable suspicion that the person detained committed, is
committing, or is about to commit a crime. § 901.151(2) Fla.
Stat. (2006); Popple v. State, 626 So2d 185 (Fla.
1993); Dept. of Highway Safety & Motor Vehicles v. DeShong, 603 So2d
1349 (2nd DCA Fla.
1992); Randall v. State, 600 So2d 553 (Fla. 2nd DCA 1992). A reasonable suspicion is “a suspicion which
has some factual foundation in the circumstances observed by the officer, when those
circumstances are interpreted in the light of the officer’s knowledge.” McMaster
v. State, 780 So2d 1026 (5th
2001). While “reasonable suspicion” is a
less demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence, the Fourth Amendment requires at least
a minimal level of objective justification for making the stop. The officer must be able to articulate more
than an “inchoate and unparticularized suspicion or ‘hunch’ “ of criminal activity.
Illinois v. Wardlow, 528 U.S.
119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). “Mere” or “bare” suspicion, on the other hand,
cannot support detention. State v.
Stevens, 354 So2d 1244 (4th
DCA Fla.1978); Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976).
Mere suspicion is no better than random
selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio,
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d
15 (Fla.1st DCA 1971). The court determines
the stop’s legitimacy by considering the totality of the circumstances
surrounding the stop. McMaster, 780 So.2d at 1029. In order for a traffic stop for an infraction
or a crime to be proper, the police must have a reasonable suspicion of criminal
activity, or probable cause to believe a traffic infraction has been committed.
Jones v. State, 842 So2d 889 (Fla. 2nd DCA
2. Traffic Stops Based Upon Erratic Driving. Florida courts have
recognized that a legitimate concern for the safety of the motoring public can
warrant a brief investigatory stop to determine whether a driver is ill, tired,
or driving under the influence in situations less suspicious than that required
for other types of criminal behavior. Bailey
v. State, 319 So.2d 22 (Fla.1975); State of Florida,
Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349
(Fla. 2nd DCA 1992); State v. Bean, 12 Fla.
L. Weekly Supp. 610 (Fla.
6th Jud. Cir. App. Ct.
March 9, 2005). “Because of the dangers
inherent to our vehicular mode of life, there may be justification for the
stopping of a vehicle by a patrolman to determine the reason for its unusual
operation.” Bailey, 319 So.2d at
26. For such a stop to be lawful, when
there is no apparent traffic infraction or crime, there must be a reasonable
suspicion of erratic driving. DeShong,
603 So.2d at 1352. The driving must
have been observed for a sufficient period of time to support the conclusion of
the police that the driving was not just an isolated incident but was approaching
a pattern of unusual driving. Bean, 12
Weekly Supp at 613. The court determines
the stop’s legitimacy by considering the totality of the circumstances
surrounding the stop.
Florida cases involving erratic driving
address two situations. First, if the
driving is sufficiently unusual, the police may make a stop to determine if the
driver is ill or tired, or to see if there is a problem with the vehicle. Bailey, 319 So.2d at 26; DeShong, 603
So.2d at 1352. Second are cases that
involve erratic driving that is consistent with someone who is DUI. In these cases, if the law enforcement
officer, based upon his or her training and experience, testifies that the
involved driving is consistent with someone who is DUI, then a stop may be
justified. State v. Davidson, 744
So2d 1180 (Fla 2nd DCA 1999); Roberts v. State, 732 So2d 1127
DCA 1999); Nicholas v. State, 857 So2d 980 (Fla.
4th DCA 2003); State v. Carrillo, 506 So2d 495 (Fla. 5th
DCA 1987); Ndow v. State, 864 So2d 1248 (Fla.
5th DCA 2004); Yanes v.
State, 877 So2d 25 (Fla. 5th DCA
2004); Hurd v. State, 958 So2d 600 (Fla. 4th DCA 2007).
3. The Present
Case. In the present case, the ruling of the trial court found the
testimony of the officer to be credible, that Appellant’s driving was
sufficiently unusual to justify a stop and that the officer observed that
driving for a sufficient period of time. The trial court’s factual findings are
supported by competent, substantial evidence. This court agrees that, considering the
totality of the circumstances, the stop of the Appellant’s vehicle was lawful.
This court concludes
that the order of the trial court denying Appellant’s Motion to Suppress should
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 January, 2008.
William H. Overton
Mark J. Ware, Esquire
Office of the State Attorney