County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress -  trial court properly granted motion to suppress-while trial court’s  evaluation of the facts shown on the video differs from the officer’s evaluation, appellate court must uphold the trial court’s  findings of fact if there is competent, substantial evidence to support those findings-Order affirmed. State v. Jenkins, III, No. CRC 08-02767CFAES  (Fla. 6th Cir. Ct. January 28,  2009).  

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

STATE OF FLORIDA,

 

        Appellant,

 

v.                                                     CASE NO.08-02767-CFAES

                                                UCN:  512008CF002767A000ES

 

WILLIE Y. JENKINS, III,

        Appellee.

_________________________________/

 

 

ORDER

 

        This is an appeal from a County Court order granting the Defendant’s Motion to Suppress All Physical Evidence and Admissions Obtained Illegally.  The facts of the case involve a traffic stop by Deputy Donald Shaw of the Pasco County Sheriff’s office on September 29, 2007 at approximately 1:59 a.m.  At the time, Deputy Shaw was driving a marked cruiser with no lights on top of the car and had been working for the Pasco County Sheriff’s office for between 13 and 14 years, with a total of 19 years in law enforcement.  He had attended several hundred hours of DUI training and was a DUI instructor.  He estimated that he had over 500 DUI arrests and had conducted 1000 DUI investigations.  While traveling northbound on US 41, Deputy Shaw first observed the Defendant when the Defendant made a legal U-turn on US 41 and also began driving northbound.  After observing the Defendant make the legal U-turn, Deputy Shaw observed the Defendant “moving around a little bit in his lane”, so Deputy Shaw fell in behind the Defendant’s truck.  As Deputy Shaw followed the Defendant, the Defendant turned right onto State Road 54 and continued eastbound.  After making the turn, the Defendant initially started out in the right-hand lane, but then move to the center lane (subsequently, Deputy Shaw testified that the Defendant made a “wide” right turn at this point, in which he ended up in the center lane, rather than the right-hand lane) and, as Deputy Shaw continued to follow him, the Defendant moved to the left-hand or “median” lane.   Ultimately, Deputy Shaw describes the Defendant as rubbing “his tires up against the actual concrete median” after having made a “real hard left hand swerve”.  Deputy Shaw testified that, after the Defendant made contact with the curb, he [the Defendant] “jerked it back away from it”, but did not lose control of his vehicle or hit the white line on the middle lane of the road.  Although the court’s review of the tape from Deputy Shaw’s dashboard camera reveals that the camera appears to have been running from Deputy Shaw’s initial sighting of the Defendant, Deputy Shaw testified that he actually “activated” the camera at about the time the Defendant rubbed his tires against the median.  In any event, the total distance that Deputy Shaw followed the Defendant was approximately a mile to a mile and a half.  Deputy Shaw continued to describe the Defendant as “still just kind of drifting, rocking in his lane a little bit”.  Deputy Shaw testified that it is “not normal for, you know, someone to just continually move back and forth from side to side, even within their own lane”.  Although Deputy Shaw testified that, based on his observations, “it was obvious that there was either something physically wrong with him [the Defendant] or the vehicle was having an issue”, he also testified that he believed that the Defendant may have been “…impaired.  That’s why I continued to follow him.  And then I observed—another key indicator of someone possibly being impaired or, you know, or sick or what have you, because he made an abrupt move to the left, or a swerve, if you want to use that wordage, or he actually had his tires rub up against the curb, and that’s indicative of somebody that’s not in complete control of their vehicle”.  Deputy Shaw acknowledged that it would not surprise him to learn that individuals sometimes get nervous when they observe an officer following behind them at approximately 2 o’clock in the morning.  Deputy Shaw also acknowledged that there were no other vehicles that were in close proximity to the Defendant during the time that he observed the Defendant’s driving and that he did not stop the Defendant for Failure to Maintain a Single Lane.

        The Defendant also testified.  Although he denied making a U-turn, as described by Deputy Shaw, he did acknowledge that he was coming out of a parking lot and made a turn so that he was headed northbound on US 41.  The Defendant testified that he almost immediately saw the law enforcement officer slow down and fall in behind him.  The Defendant indicates that this made him nervous and he began to pay a bit more attention to the officer than to his driving.  The Defendant denies bumping the curb bordering the median, but does acknowledge that he came close to it and that he corrected back into his lane.  While the defendant acknowledges some familiarity with the concept of being drunk, he denies being drunk or impaired on the night in question.  At most, he acknowledges having consumed a “couple of beers”.

        The learned County Court Judge was present as the video was played during the hearing and announced that, while he didn’t think the Defendant’s driving was “that bad”, he intended to look at it again.  Likewise, this appellate panel has reviewed the video that was placed in evidence.  This panel has no intention of substituting its evaluation of the testimony and evidence for that of Judge Cole and, while it is in as good a position to evaluate the video as Judge Cole was, this panel has no disagreement with Judge Cole’s evaluation of the video.  Judge Cole understandably placed considerable weight upon what he saw on the video and the video clearly supports his ruling.  While Judge Cole’s evaluation of the facts shown on the video differs from the officer’s evaluation, it is this court’s job to uphold Judge Cole’s findings of fact if there is competent, substantial evidence to support those findings.  Connor v. State, 803 So.2d 598 (Fla. 2001).  We find that there is competent, substantial evidence to support Judge Cole’s order findings.  Frankly, there are portions of the video that simply do not appear to support the officer’s testimony, i.e., the officer’s testimony that the rubbing against or contact with the curbing on the median was preceded by a “real hard left hand swerve” and followed by the defendant’s action in jerking his vehicle back away from the curb.  The court hastens to add that the court is not impugning the officer’s honesty-only noting that the officer’s objectivity may be in question.  These are factual determinations by Judge Cole and, in our view, accurate factual determinations.  Under the circumstances, Judge Cole’s granting the Defendant’s Motion to Suppress is AFFIRMED.

 

        DONE AND ORDERED in chambers in New Port Richey, Pasco County, Florida this ____ day of January, 2009.

 

 

                                                                __________________

                                                                Stanley R. Mills

Primary Appellate Judge

 

                                                                __________________

                                                                W. Lowell Bray, Jr.

                                                                Appellate Judge

 

                                                                __________________

                                                                Daniel Diskey

                                                                Appellate Judge

                                                               

 

Copies furnished to:

Kenneth V. Compton, Esq., Assistant State Attorney

Sean B. Kelley, Esq.