NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 07-00048APANO UCN522006CT148655XXXXXX
Opinion filed _____________________.
Appeal from an Order Denying
Motion to Suppress
entered by the Pinellas County Court
County Judge William H. Overton
Joseph T. Hobson, Esquire
Attorney for Appellant
Blair Clarke, Esquire
Attorney for Appellee
ORDER AND OPINION
MATTER is before the Court on Appellant, Michael Moser’s appeal from a decision
Factual Background and Trial Court Proceedings
October 1, 2006, at approximately 11:00 p.m., Deputy Richard Farnham of the
Pinellas County Sheriff’s Office was on patrol and received a communication from
the Sheriff’s Office directing him to be on the look out for a vehicle, a red
Honda Element with
Deputy Farnham proceeded, in his cruiser, to the area where the reported vehicle was said to be located. At approximately 11:15 p.m. the deputy observed the red Honda stopped on the side of the road, facing westbound, on the north side of a roadway. The deputy drove by the vehicle which appeared to be unoccupied and thought he heard the engine of the vehicle running. Deputy Farnham was not certain the engine of the Honda was actually running so he turned his vehicle around and drove by the Honda for a second time. The Honda was now on the deputy’s left and he had his window lowered and could hear the engine of the Honda running. The side windows of the Honda were “very black-tinted” and the vehicle still appeared to be unoccupied. The deputy made another U-turn and positioned his vehicle behind the red Honda. Because he had been advised to be on the look out for this very vehicle, because the engine was still running and the vehicle appeared unoccupied, the deputy got out of his cruiser and approached the vehicle. When he reached the Honda, the deputy looked through the front windshield and observed a white male lying in the front seat driver’s side. The seat was reclined. Deputy Farnham knocked on the driver’s side window three separate times. Each of these three times, the deputy tapped on the window three to five times. The man in the Honda did not respond.
Deputy Farnham then opened the driver’s side door of the Honda “to see if the driver was actually passed out from alcohol impairment or if he needed medical help or what was the purpose of him sitting there with the vehicle running, sleeping in it.” When he opened the door, the deputy could smell the odor of an alcoholic beverage. The deputy called out to the man a couple of times and got no response. The man did not wake up. Deputy Farnham then touched the man’s arm and shook him “a little bit” and continued to announce who he was. The man finally came around and woke up. It took thirty to forty-five seconds for this to occur. The man in the car was the Defendant. The Defendant had a hard time sitting up on his own and didn’t know where the release latch was to let the seat up. The deputy asked the Defendant for his driver’s license and identification and the Defendant in a fumbling and slow manner pulled his wallet out and handed the deputy a credit card instead of his driver’s license. The Defendant had slurred speech and bloodshot watery eyes. The deputy told the Defendant that the credit card was not his driver’s license and the Defendant fumbled through his wallet and after passing his license three or four times was finally able to retrieve his license. The deputy concluded that the Defendant was intoxicated. He asked the Defendant to step out of the Honda. The Defendant was arrested for DUI.
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 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,
967So2d 1021 (
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.
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)
the law enforcement officer's information is not personally observed, but
received from an informant, the informant's veracity, reliability, and basis of
knowledge are critical in establishing the reasonable suspicion required for a
anonymous tip may give rise to reasonable suspicion to stop or probable cause
to search, where the tip is deemed reliable.
In the present case, the tip, the 911 call from a citizen was specific. It gave an exact description of a vehicle including license plate number and an area where the vehicle was allegedly being driven in a manner that created a concern that the driver was impaired. The deputy sheriff acted promptly on that information, proceeded to the reported area and quickly located the exact car described in the 911 call. The deputy’s own observations of the vehicle pulled off the side of the road, stopped with engine running and apparently no one inside corroborated and reinforced a concern about the vehicle. It was reasonable and proper that the deputy approach the vehicle to investigate. He surely could not ignore the situation. When Deputy Farnham reached the Honda and observed Defendant lying in the reclined front seat driver’s side apparently passed out or sleeping and then knocked on the driver’s side window several times with no response the deputy’s observations had provided sufficient indicia of reliability to the original 911 call. The totality of all of these circumstances provided a reasonable suspicion to support a traffic stop.
The Emergency Exception to the Warrant Requirement.
The “emergency exception” permits police to enter and
investigate private premises to preserve life, property, or render first aid,
provided they do not enter with an accompanying intent either to arrest or
search. The need to act expeditiously is
essential. Riggs v. State, 918 So.2d 274, 280 (
the present case, Deputy Farnham opened the car door “to see if the driver was
actually passed out from alcohol impairment or if he needed medical help”. Considering all of the facts set forth above,
the deputy lawfully opened the car door.
In the present case, the original anonymous tip, as corroborated by the independent observations of Deputy Farnham, was sufficiently reliable to establish the reasonable suspicion required for a stop. Additionally the ruling of the trial court that “an illegal seizure of Mr. Mozer did not occur when Deputy Farnham opened the unlocked door to check on the health and welfare of Mr. Mozer, who was completely unresponsive” was supported by competent, substantial evidence. The factual findings of the trial court were also supported by competent, substantial evidence. Considering the totality of the circumstances, 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.
Michael F. Andrews Circuit Court Judge
Raymond O. Gross
Circuit Court Judge
R. Timothy Peters
Circuit Court Judge
cc: Honorable William H. Overton
Joseph T. Hobson, Esquire
Office of the State Attorney