County Criminal Court:  CRIMINAL LAW --- DUI – Search and Seizure –Stop---a court determines the legitimacy of an investigatory stop by considering the totality of the circumstances surrounding the stop.  Law enforcement officer who was requested to the scene of a motor vehicle accident in a trailer park could lawfully enter the mobile home park.  Investigatory stop of Appellee and arrest for DUI were proper under the circumstances.  Order reversed.  State v. Nolin, No. CRC07-00070APANO (Fla. 6th Cir. App. Ct., August 21, 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

 

 

STATE OF FLORIDA

 

            Appellant,

 

Appeal No. CRC 07-00070APANO UCN:  522006CT170619XXXXXX

 

RALPH NOLIN

 

            Appellee.

__________________________________/

 

Opinion filed August ___ 2008.

 

Appeal from an Order Granting

Motion to Suppress

entered by the Pinellas County Court

County Judge James V. Pierce

 

Max Eggleston, Esquire

Attorney for Appellant

 

Lynda Barack, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an order granting motion to suppress entered by the Pinellas County Court.  After reviewing the briefs and record, this Court reverses the order granting the motion to suppress.

Factual Background and Trial Court Proceedings

            On October 31, 2006, at approximately 2:47 a.m., Officer Zdziedrak of the Largo Police Department was dispatched to the West Gate Mobile Home Park in Largo in response to a call that a dark colored van had struck a mobile home and then left the scene.  The officer did not know if anyone had been injured.  Upon arrival at the scene the officer observed property damage in that corner cinder blocks underneath the mobile home had been knocked out and the mobile home itself had slightly shifted.  This damage indicated to the officer that a crash had occurred.  No witness actually saw the crash occur, but a witness reported seeing a dark colored van driving by at the time.  Officer Zdziedrak initiated an investigation and with another officer began searching the mobile home park on foot for the reported vehicle.  A couple of people were outside and reported they had seen the van.  The officers located a dark colored van that had rear passenger side damage as well as fresh glass in the bumper.  This appeared to Officer Zdziedrak to be consistent with the property damage he had observed on the mobile home.  At the same time the officer observed the Appellee, Ralph Nolin, knocking on the door of a nearby mobile home.  Officer Zdziedrak, accompanied by Officer Moore, approached Appellee and began to question him.  The Appellee admitted driving the van.  In the process of questioning, the officer noticed the Appellee had multiple signs of impairment and began a DUI investigation.  The officer read the Appellee his Miranda rights.  Post Miranda, the Appellee admitted to driving and consuming alcohol.  Following the investigation, the Appellee was transported to central breath testing where he registered results of .133/.146.

            In granting the Appellee’s Motion to Suppress, the trial court found that Officer Zdziedrak had no jurisdiction without a written agreement between the governing body of the mobile home park and the police department to enter upon the premises because he had not observed a DUI or a non traffic criminal offense.[1]

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).

The Issue

            The Appellant, State of Florida, argues the trial court erred because law enforcement had the right to enter the mobile home park when being dispatched to conduct a criminal investigation.  The Appellee, Ralph Nolin, argues that law enforcement entered private property in response to a call regarding a traffic accident and then proceeded to investigate the accident on private property.  Absent a specific agreement between the mobile home park and law enforcement, the officer lacked jurisdiction to detain and subsequently arrest the Appellee and the trial court correctly suppressed all evidence.

            The issue presented is could law enforcement, under the circumstances, lawfully enter the mobile home park, investigate the incident and then arrest the Appellee for DUI?

Police Entry upon Private Property

One of the exceptions to the warrant requirement for law enforcement entry onto private property is consent which includes consent given by a third party who possesses common authority over the premises to be searched.  Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974); Ferguson v. State, 417 So.2d 631, 634 (Fla.1982).  Moreover, the right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law.  Zeigler v. State, 402 So2d 365 (Fla. 1981); P.B.P. v. State, 955 So2d 618 (Fla. 2nd DCA 2007).  The reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances. P.B.P., 955 So2d at 625.

Investigatory Stops

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.

Analysis of the Present Case

In the present case, at approximately 2:47 a.m. the police were called to the mobile home park because a dark colored van had struck and damaged a mobile home and then left the scene and a resident requested police assistance.  The police certainly had the right to enter the mobile home park in response to a resident’s request for police service.  The police presence in the park was not only lawful, it was required.  The call for assistance certainly could not be ignored. 

The police investigation of the incident was lawful and appropriate.  No part of that investigation involved the entry into any private residence.  Further, any resident’s reasonable expectation of privacy in the roadways or open areas next to the roadways could not be great.  The call for police service could not be simply and summarily dismissed as a traffic infraction or criminal traffic matter on private property.  The facts of the incident and the nature of any resulting charges were not known and could not be known until an investigation was completed.  No one had observed the actual crash.  It was not known if the driver had been injured, was still operating the vehicle or if the crash involved negligence or was intentional.  A number of issues required immediate investigation.  In any event, in the course of their investigation the police encountered Appellee only after they had examined the property damage to the mobile home, had a description of a dark colored van that may well have been involved, had located such a van in the mobile home park that had recent damage consistent with the property damage observed at the mobile home, and found the appellee standing close at hand knocking on a door of a mobile home residence at approximately 3:00 a. m. in the morning.  Whether characterized as a citizen encounter or an investigatory stop, the officers were justified approaching the Appellee and questioning him about the situation.  Their investigation was ongoing and at that point they did not know all the facts and circumstances.  In the process of questioning, the officer noticed the Appellee had multiple signs of impairment and lawfully began a DUI investigation.  State v. Zink, 448 So2d 1196 (Fla. 1st DCA 1984).

The Appellee’s reliance on Nemeth v. State, 14 Fla. L. Weekly Supp. 334b (6th Cir. 2006) is misplaced.  In that case a deputy sheriff observed a driver operating a vehicle for a short distance without its headlights illuminated in the parking lot of an apartment complex.  The deputy initiated a traffic stop on private property, then detected evidence of impairment in that driver and thereafter arrested the person for DUI.  The court held that the deputy had no authority to stop the person for such a traffic offense committed on private property.  The present case can be distinguished.  As more fully set forth above, in the present case the police were responding to a call for police service where a vehicle had reportedly struck and damaged a mobile home and then left the scene.  This is a much more complicated and potentially serious situation that required investigation.  In the course of that investigation the officer lawfully spoke with the Appellee.

Conclusion

            This court concludes that the order of the trial court granting Appellee’s Motion to Suppress should be reversed.

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

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

 

 

_____________________________

Michael F. Andrews                                                 Circuit Court Judge

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

 

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

 

           

cc:        Honorable James V. Pierce

            Office of the State Attorney

            Lynda Barack, Esquire

           



[1] While it is not dispositive, it is noted that the record does not address what arrangement, if any, existed between the mobile home park and the City of Largo for the delivery of police services.  The record also does not address whether the organizational documents of the mobile home park provide an easement or other right of access for the delivery of public services such as police, fire or utilities to the residents.