Criminal Court: CRIMINAL LAW-DUI-while there is no doubt that the appellant was seized, deputy had probable cause to arrest at the time of the stop and  was justified in restraining appellant- even assuming the deputy did not have probable cause at the time of the stop, the request to put out the cigarette did not transform the detention of the defendant from that of an investigative traffic stop based on reasonable suspicion to an illegal detention. Affirmed. Anthony v. State, Case 074045CFAES, (Fla. 6th Jud. Cir. February 1, 2008).                                                                                  

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

           

 

JINUMON ANTHONY,                                             Appeal No: 074045CFAES

                        Appellant,                                             Case No: 073525XDMTES    

                                                                                   

v.

 

STATE OF FLORIDA,                                                                    

                        Appellee.

_____________________/    

 

A.R. Mander, III, Esq.

for Appellant.

 

William K. Joseph, Esq.

for Appellee.

 

ORDER AND OPINION

 

The appellant was arrested on April 6, 2007 for DUI.  A motion to suppress was filed and a hearing on the motion was held on June 27, 2007.  The county court denied the appellants motion to suppress after a hearing and the appellant now appeals that order. This Court affirms the decision of the trial court

At the hearing, Deputy Shaw testified that he had the opportunity to come into contact with the appellant pursuant to a traffic stop for speeding. He explained that upon initial conversation he detected a strong odor of alcohol coming from appellant, that appellant had slurred speech, his coordination was poor, and he had vomit on his shirt.  When the deputy asked appellant if he had anything to drink, the appellant replied that he “had drank some beer.”  At first defendant told him he drank six, then later said two. After getting his license and registration the deputy went back to his vehicle and conducted a license check. Shaw testified that the observations he made during the initial contact with appellant led him to believe at that time that there was reasonable suspicion to believe that the defendant was driving under the influence. He repositioned his vehicle for his safety because he was going to have the defendant come out and perform field sobriety exercises.   At that point, the deputy then approached the appellant again, and asked him if he would step out of his vehicle and talk to him. The defendant agreed and when he exited his vehicle he had a cigarette in his hand.  The deputy testified that he asked him if he wouldn’t mind putting his cigarette out for him.  The deputy stated that at that point, the appellant  “leaned down and leaned against the car and kind of snuffed out the cigarette on his—on the ground and then attempted to put it on the trunk of the car.” The deputy was asked if the appellant protested in any way, and the deputy replied that he did not.  He was then asked if he ordered the appellant to put the cigarette out, and the deputy replied that he “asked” him. The deputy testified that there were two reasons why he asked him to put out his cigarette. He testified that one of the reasons is that he is very sensitive to cigarette smoke; and the second reason is that it could be used to burn him later, ‘if it became something like that.’ 

The appellant testified that after the stop, and after checking his license and registration, the deputy asked  him to step out of the vehicle. He testified that he lit the cigarette just prior to the deputy walking over to his vehicle. Appellant testified that when the deputy told him to put out the cigarette, he told him that he just lit it; he stated that he told him that because he wanted to smoke it. He went on to testify that the deputy then indicated to him that he still wanted it put out and he did, even though he did not want to.  He testified that he put it out “because….[he] was nervous, it’s a police officer.” When asked why he put out the cigarette, the appellant stated “[b]ecause he told me to do it” and went on to testify that he was afraid he would have been arrested if he didn’t. The appellant testified that he told the deputy he had two beers. 

On cross examination, the appellant acknowledged that the officer asked him if he would mind stepping out of his car and asked him if he would mind putting out his cigarette; however, he went on to state that the deputy said it in an aggressive fashion. 

Appellant now argues on appeal that the trial court erred in denying the motion to suppress because the deputy’s order to put out the cigarette transformed the encounter from a routine Terry[1] investigative detention to a more coercive encounter, effectively resulting in a seizure without probable cause. While there is no doubt that the appellant was seized, the record in this case reveals that the deputy had probable cause to arrest at the time of the stop, and therefore, was justified in restraining appellant at that time.  

However, even assuming the deputy did not have probable cause at the time of the stop, the request to put out the cigarette did not transform the detention of the defendant from that of an investigative traffic stop based on reasonable suspicion to an illegal detention.   Seizure occurs when police by means of physical force or show of authority have restrained the liberty of a citizen. Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004).  Asking, even telling someone, to put out a lit cigarette does not restrain freedom of movement, nor does it relate to obtaining any evidence against a defendant. See State v. Hancock,  022987CFAES (Fla 6th Circ. App. Ct April 25, 2005)(trial court properly entered order granting motion to suppress were deputy forced the defendant to submit to a HGN test, the purpose of which  was used to further develop probable cause and is directly related to an investigation.) Therefore, even if the officer did not have probable cause, the fact that he requested the appellant to put the cigarette out, did not transform the stop into an illegal detention.

Furthermore, under  Terry v. Ohio, 392 U.S. 1 (1968),  an officer has the authority to make a limited search for weapons of a person temporarily detained where the officer reasonably suspects his personal safety requires it. Clearly, the overriding interest in Terry is officer safety, which justifies a limited search and seizure without a warrant. Therefore, if Terry justifies a pat down, it would certainly justify disarming a defendant of a lit cigarette.. Here, the officer testified that part of the reason he requested the appellant to put the cigarette out was fear that he might be burned by it. This fear was reasonable under the circumstances. Accordingly, 

IT IS THEREFORE ORDERED that the Order be AFFIRMED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of ___________, 2008.  

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

A.R. Mander, III, Esq.

William K. Joseph, Esq.

County Court Judges. 

 

 

 

 

 



[1] Terry v. Ohio, 392 U.S. 1 (1968).