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. 07-00003APANO (Fla. 6th Cir.App.Ct. Jan.24, 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

 

 

CHARLES E. COOK

 

Appellant,

 

Appeal No. CRC 07-00003APANO

UCN522006CT040684XXXXXX

STATE OF FLORIDA

 

Appellee.

__________________________________/

 

 

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

 

 

PETERS, Judge.

 

THIS 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 Proceedings

 

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 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).

Analysis

 

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 DCA Fla. 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, 392 U.S. 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 2003).

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 Fla. L. 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 (Fla. 4th 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.

Conclusion

 

This court concludes that 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 January,          2008.

 

 

 

 

 

                                                            _____________________________

     Michael F. Andrews

     Circuit Court Judge

 

 

 

 

                                                            _____________________________

                                                                        Raymond O. Gross

                                                                        Circuit Court Judge

 

 

 

 

                                                            _____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

 

cc:        Honorable William H. Overton

Mark J. Ware, Esquire

Office of the State Attorney