County Criminal Court: CRIMINAL LAW — Search & Seizure — Stop — Officer had probable cause to stop defendant when crossed the fog line more than once in short period.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Mathew Ashmore, No. CRC08-02604-CFAWS (Fla. 6th Cir. App. Ct. September 3, 2010).

 

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 PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                     Appellant,

                                                              UCN:            512009CF006491A000ES

v.                                                           Case No:      09-6491-CFAES

                                                              Lower No:    09-2277-GFDTEA-01

 

MATHEW W. ASHMORE,                                         

                     Appellee.                                             

________________________/

 

Appeal from Pasco County Court

 

County Judge Robert Cole  

 

Kenneth V. Compton, A.S.A. 

for Appellant

 

Office of the Public Defender   

for Appellee

 

 

 

ORDER AND OPINION

 

          The State appeals a county court order granting Appellee’s Motion to Suppress.  We find that the trial court erred in finding that the officer did not have sufficient reasonable suspicion to justify the stop.  This Court reverses the trial court’s order.

 

FACTUAL BACKGROUND

          On July 12, 2009, Corporal Robert Medina saw a blue four-door Chevy in the parking lot of a gas station at about 8:30 at night.  The car went in reverse at a high rate of speed, drove forward, and left the parking lot.  Corporal Medina got behind Appellee’s car and followed it for less than a quarter of a mile.  The car’s full tire went on the fog line two to three times.  Corporal Medina thought that the driver might have been impaired or that there was something wrong with the driver due to his abnormal driving.  As Corporal Medina was getting ready to initiate a traffic stop in his unmarked Dodge Durango, Appellee started to drive his car off the roadway and onto an access road.  He activated his lights, and they stopped on the access road. 

          As Corporal Medina approached Appellee, he noticed that there were two other occupants inside.  When he asked Appellee for his license, he gave him an I.D. card.  Corporal Medina explained to Appellee why he pulled him over.  Appellee responded that his car was not working properly and that he was driving because he was familiar with it.  A check on the I.D. card revealed that Appellee was a habitual traffic offender.  Appellee admitted that his license was suspended.  Consequently, Appellee was issued a traffic citation for driving while his license was suspended. 

          Appellee filed a motion to suppress contending that the officer did not have reasonable suspicion to conduct a traffic stop.  On October 28, 2009, the trial court entered an order granting Appellee’s motion to suppress finding that there was no reasonable suspicion that Appellee had committed an offense to justify the stop.  The State filed a timely notice of appeal. 

           

LAW AND ANALYSIS

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).

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 sufficient 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.

In this case, the trial court found that the officer did not have sufficient reasonable suspicion to justify the stop.  To effectuate a valid stop, the officer needed only have a founded suspicion of criminal activity.  State v. Davidson, 744 So. 2d  1180 (Fla. 2d DCA 1999).  A legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether the driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.  DHSMV v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992); Davidson v. State, 744 So. 2d 1180 (Fla. 2d DCA 1999). 

Given the totality of the circumstances viewed in light of Corporal Medina’s experience and background, Appellee’s erratic driving provided him with the founded suspicion necessary to stop Appellee to determine whether he was ill, tired, or impaired.  Corporal Medina observed Appellee drive in reverse at a high rate of speed and then cross the fog line two or three times with his full tire in a short time span.  Corporal Medina testified that the abnormal driving was characteristic of an impaired driver.  In addition, Corporal Medina observed Appellee pull off the road to the right before he had the opportunity to activate his lights.  The officer’s observations provided him with the founded suspicion necessary to effectuate the traffic stop.  See, State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999); Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004). 

The trial court improperly granted Appellee’s motion to suppress.  The officer had reasonable suspicion to effectuate the traffic stop.  The order granting the motion to suppress should be reversed.  Therefore, it is

 

ORDERED AND ADJUDGED that the order granting Appellee’s motion to suppress is hereby REVERSED, and this case is REMANDED for proceedings consistent with this opinion.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 3rd day of September 2010.

          Original order entered on February 26, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.