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,
IN THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR
STATE OF FLORIDA
Appeal No. CRC 07-00070APANO UCN: 522006CT170619XXXXXX
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
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
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.
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 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?
Entry upon Private Property
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.
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
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,
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.
of the Present Case
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.
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).
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.
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
the State Attorney