County Criminal Court: CRIMINAL LAW – Search & Seizure – Stop – Officer had probable cause to stop Appellant when he sped away.  Appellant was in custody for purposes of Miranda when officer handcuffed him and put him in the back of the patrol car.  Manner of performance on alphabet test admissible without Miranda warnings.  Motion to Suppress affirmed.  Joseph Morales v. State of Florida, No. 51-2009-CF-003888A000-ES (Fla. 6th Cir. Ct. Nov. 20, 2009). 

 

NOT FINAL UNTIL REHEARING TIME EXPIRES

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

JOSEPH MORALES,     

                        Appellant,

                                                                                    UCN:               51-2009-CF-003888A000-ES

v.                                                                                 Case No:        09-3888-CFAES

                                                                                    Lower No:      08-5171XCCTES

 

STATE OF FLORIDA,                                             

                        Appellee.                                                       

________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole

 

Thomas Matthew McLaughlin, Esquire

Attorney for Appellant

 

Kenneth V. Compton, Esquire 

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Appellant, from the trial court’s Order Denying his Motion to Suppress, entered June 16, 2009.  Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

            The record shows that, Officer Hawthorne with the Zephyrhills Police Department was dispatched to a disturbance involving fifteen individuals fighting on Meadowood Loop and Austin Avenue in Zephyrhills at about 11:00 at night, on August 31, 2009.  Officers were told to look for a dark SUV leaving the scene.  As Officer Hawthorne entered the subdivision, he saw a black SUV matching the description.  The SUV was driven by Appellant.  Officer Hawthorne believed that when Appellant saw his police vehicle, he made a U-turn.  Appellant testified that he made the U-turn unaware of law enforcement’s presence. 

Once Appellant re-entered the subdivision, he went to the right, around the corner, and accelerated at a high rate of speed in the subdivision.  Officer Hawthorne pursued Appellant with lights and sirens at a high rate of speed, believing that Appellant was trying to run from him.  Officer Hawthorne testified that he paced behind Appellant, who had accelerated to over 60 miles per hour, for three- to four-tenths of a mile, within a matter of seconds, and in less than 500 feet.  Officer Hawthorne could tell visually that Appellant was exceeding the 30 miles per hour speed limit.  Appellant and other defense witnesses testified that Appellant was not speeding.  Appellant testified that did not notice the police lights and sirens until just a few houses before he stopped.  Appellant stopped at the residence from where the initial complaint had come.

Upon arrival, Appellant jumped out of the driver’s side of his car.  Officer Hawthorne testified that he was not asked to exit, but Appellant testified he was ordered out at gunpoint.  The passenger was covered in blood from the fight earlier.  Appellant was also described as very profane, belligerent, and excited.  There were numerous people in the front yard cursing, threatening each other, and wanting to fight. 

Officer Hawthorne made contact with Appellant, who appeared intoxicated with a strong odor of alcohol on his breath, bloodshot eyes, slurred speech, lack of coordination, and unsteady walk.  Appellant appeared very intoxicated and wanted to know why Officer Hawthorne was stopping him.  Officer Hawthorne was trying to keep an eye on the crowd and was concerned about the passenger covered in blood.  Based on Appellant’s actions and the overall situation, he secured Appellant by cuffing him, putting him in the back of the patrol car, and telling him that he was not under arrest. 

Based upon Officer Hawthorne’s observations of Appellant, he believed further investigation for DUI was warranted.  Officer Hawthorne and his sergeant determined that Appellant’s presence was causing undue excitement at the scene; therefore, he took Appellant back to the police department.  Appellant was not read Miranda.  Officer Hawthorne testified that Appellant did not have a choice as to whether or not he was going to the police department. 

At the police department, Officer Hawthorne asked Appellant to perform field sobriety tests.  On the alphabet test, Appellant said it correctly, but slowly.  Officer Hawthorne testified that on the walk-and-turn test, Appellant started before the instructions.  Subsequently, Officer Hawthorne placed Appellant under arrest for DUI, read him the implied consent form, and performed a breath test. 

Appellant filed a motion to suppress on April 30, 2009.  In that motion, Appellant argued (1) there was no probable cause to conduct the traffic stop; (2) Appellant did not give valid consent to perform the field sobriety tests; and (3) Miranda warnings were not given prior to the alphabet test.  A hearing was held on the motion, on June 16, 2009, before the Honorable Robert P. Cole, wherein the motion was denied.  Appellant pleaded no contest to the DUI charge, but reserved the right to appeal the denial of his motion to suppress.

On appeal, Appellant argues three grounds.  First, Appellant argues that Miranda should have been read when Officer Hawthorne handcuffed Appellant and put him in the back of his police car.  As such, Appellant’s subsequent verbal responses should have been suppressed.  Next, Appellant argues that the trial court erroneously believed that the factual discrepancies raised at the suppression hearing were issues for the jury to resolve.  Finally, Appellant argues that the trial court’s alternate theory was unsupported by the record.   

An appellate court employs a mixed standard of review in considering a trial court’s order on a motion to suppress.  A trial court’s determination of facts are presumed correct and will not be overturned on appeal unless they are not supported by substantial, competent evidence.  Mixed questions of law and fact, however, are subject to de novo review.  State v. Petion, 992 So. 2d 889 (Fla. 2d DCA 2008).

There are three levels of police-citizen encounters.  The first is a “consensual encounter,” which involves minimal police contact and does not invoke constitutional safeguards.  During a consensual encounter, an individual may voluntarily comply with or ignore a police officer’s request.  In an “investigatory stop,” however, an officer may temporarily detain an individual if the officer has a reasonable, articulable suspicion that the individual has committed, is committing, or is about to commit a crime.  The third level is an arrest, which must be supported by probable cause.  Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). 

An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion. See Terry v. Ohio, 392 U.S. 1 (1968). "'Reasonable suspicion' is a less demanding standard than that for probable cause, and 'considerably less than proof of wrongdoing by preponderance of the evidence.'" State v. Gonzalez, 682 So. 2d 1168, 1170 (Fla. 3d DCA 1996).  An officer, therefore, may detain a person to determine identity and circumstance when that officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be taking place. Id.

In determining whether a police officer possesses a reasonable suspicion to justify an investigatory stop, the court must consider the totality of the circumstances viewed in light of a police officer's experience and background. See Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999); Brown v. State, 592 So. 2d 1237, 1238 (Fla. 1st DCA 1992); Moore v. State, 561 So. 2d 625, 626 (Fla. 1st DCA 1990). Some of the factors a police officer may evaluate to reasonably suggest the possibility of criminal activity are: the time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge. To this list may be added the factor of flight.  Hernandez, 784 So. 2d at 1126 (quoting State v. Bell, 382 So. 2d 119 (Fla. 3d DCA 1980)).  Although flight alone is not enough to create reasonable suspicion, "flight can be considered when there are other suspicious circumstances." Hernandez, 784 So. 2d at 1127. Indeed, "flight at the sight of an approaching police officer is a suspicious circumstance which, when added to other suspicious circumstances, may justify the belief that the defendant was engaged in criminal activity" warranting an investigatory stop. Id.

In this case, when Officer Hawthorne initially saw the black SUV, he could only reasonably initiate a consensual encounter.  Officer Hawthorne was given an instruction to be on the lookout for a dark SUV, which matched Appellant’s vehicle.  As Officer Hawthorne pursued Appellant, who appeared to be fleeing from law enforcement, he developed enough reasonable suspicion to conduct an investigatory stop.  Appellant was speeding down the street where the disturbance was located.  Under the totality of the circumstances, Officer Hawthorne had reasonable suspicion to lawfully detain Appellant for, at minimum, the speeding violation. 

After exiting his car,[1] Appellant exhibited the classic signs of intoxication.  At that point, Officer Hawthorne had probable cause to detain Appellant.  Appellant was handcuffed and placed in the back of the patrol car.  Although Officer Hawthorne told Appellant that he was not under arrest, his actions indicated otherwise.  Given those circumstances, a reasonable person would not have believed he was free to leave.  United States v. Mendenhall, 446 U.S. 544 (1980).  Officer Hawthorne even testified that Appellant did not have a choice as to whether or not he was going to the station.  Therefore, Appellant was seized within the meaning of the Fourth Amendment.

From the record, it appears uncontroverted that Appellant was not read his Miranda warnings before being asked to perform field sobriety tests at the police station.    At the trial level, Appellant sought the suppression of the alphabet test based on Miranda not being read first.  Since the trial court did not make a factual finding or legal determination as to this issue, this Court hereby remands the case for a ruling on the Miranda issue.

On remand, the trial court should consider that Miranda warnings are required when a defendant is subjected to custodial interrogation.  See Roberts v. United States, 445 U.S. 552, 560 (1980); Arbelaez v. State, 626 So. 2d 169 (Fla. 1993), cert. denied, 511 U.S. 1115 (1994); Traylor v. State, 596 So. 2d 957 (Fla. 1992).  In this case, Appellant was legally in custody from the point he was handcuffed and put in the patrol car.  Whether Miranda warnings are required prior to administering sobriety tests for someone in custody depends on if it is designed to elicit a testimonial, or nontestimonial, response. See Pennsylvania v. Muniz, 496 U.S. 582, 590-600 (1990).   Generally, a request that someone in custody recite the alphabet calls for testimonial evidence for Fifth Amendment purposes, and requires Miranda warnings.  See Allred v. State, 622 So. 2d 984, 986-87 (Fla. 1993); State v. Burns, 661 So. 2d 842, 846-47 (Fla. 5th DCA 1995); see also Pennsylvania v. Muniz, 496 U.S. at 592-600.  On the other hand, an officer may testify to the manner in which a person in custody performed a recitation, but Miranda warnings are required if the State wants to introduce evidence demonstrating the level of performance.  State v. Burns, 661 So. 2d 842, 846 (Fla. 5th DCA 1995); Allred v. State, 622 So. 2d 984, 986-87 (Fla. 1993).    

On remand, if the trial court finds that no Miranda warnings were given, then it could suppress the recitation of the alphabet.  However, Officer Hawthorne’s testimony that Appellant performed the test correctly, albeit slowly, is admissible without Miranda warnings.  State v. Burns, 661 So. 2d 842, 846 (Fla. 5th DCA 1995) (finding that if defendant correctly recites the alphabet, even with slurred speech, it is admissible); Pennsylvania v. Muniz, 496 So. 2d 582 (1990).  Appellant’s manner of performance would therefore be admissible.         

The Court affirms the trial court’s denial on Appellant’s Motion to Suppress regarding the legality of the stop.  The Court remands the case to the trial court for a ruling on the Miranda issue consistent with this opinion. 

 

Therefore, it is

ORDERED AND ADJUDGED that the Default Final Judgment is affirmed. 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ______ day of November 2009.

 

 

_____________________________

STANLEY R. MILLS                 

Circuit Judge, Appellate Division

 

 

_____________________________                   _____________________________

W. LOWELL BRAY, JR.                              DANIEL D. DISKEY

Circuit Judge, Appellate Division                                Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

Thomas Matthew McLaughlin, Esquire

Kenneth V. Compton, Esquire 

 

 


[1] As an alternate theory for denying Appellant’s motion to suppress, the trial court found that there was no actual stop in that Appellant exited his car on his own volition unaware of law enforcement’s presence.  This alternate theory, however, is not supported by the record.  A close reading of the record indicates that Appellant knew of law enforcement’s presence two or three houses before he actually stopped.  This fact is uncontroverted.  Nonetheless, rejecting this alternate theory does not change the outcome of this case.