County Criminal Court: CRIMINAL LAW ó Search & Seizure ó Stop ó Officer had probable cause to stop defendant when he was stopped at a green light for an extended period.Trial courtís order denying motion to suppress is affirmed.Manuel Castro v. State of Florida, No. CRC08-02604-CFAWS (Fla. 6th Cir. App. Ct. February 26, 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

 

MANUEL CASTRO,†††††

††††††††††††††††††††††† Appellant,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN:††††††††††††† 512008CF002604A000WS

v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No: CRC0802604CFAWS†††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† Lower No: †† 06-7796XAUTWS

 

STATE OF FLORIDA, †††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††† Appellee.††††††††††††††††††††††††††††††††††††††††††††††††††††††

___________________________/

Appeal from an Order Granting

Motion to Suppress

Entered by Pasco County Court

County Judge Marc H. Salton

 

Curtis Crider, Esq.

for Appellant

Office of the State Attorney

for Appellee

 

 

 

ORDER AND OPINION

 

††††††††††† Appellant appeals a County Courtís order denying his Motion to Suppress.The issue on appeal is whether law enforcementís stop of Appellant was justified.We find that it is.This Court affirms the trial courtís order.

FACTUAL BACKGROUND

††††††††††† On August 12, 2006, at about 12:30 a.m., Trooper Johnson was traveling east on State Road 52.As he approached Paradise Point Way, Trooper Johnson saw Appellantís vehicle stopped in the inside lane to turn east at a solid green light.Trooper Johnson saw the car from a considerable distance for about twenty to twenty-five seconds with the green light never changing.Trooper Johnson was concerned about the driver of the car, who was endangering himself by sitting at a green light on State Road 52.Although Appellant may not have been immediately impeding traffic, he was not going to simply ignore Appellant.

††††††††††† Trooper Johnson activated his emergency lights to prevent other traffic from running into him.Trooper Johnson got out of his car, holding his flashlight, and looked inside the window as he approached Appellantís car.Appellant appeared to be passed out with his head slumped, eyes closed, and hands on the wheel.Appellant never looked at him, even with the trooperís flashlight shining in his face. Trooper Johnson tapped on the window three times.Appellant immediately raised his head and took off.Trooper Johnson shouted at Appellant to stop, but to no avail.He did not know what kind of condition Appellant was in, or if it was medical.

††††††††††† Trooper Johnson ran back to his vehicle.He followed Appellant for a quarter-mile with lights and sirens.Appellant was within the speed limit at 35 to 40 miles per hour, but driving too slowly and to the left toward the median. Appellant passed two full sized left turn lanes before he finally reached the third and pulled into a parking lot.Trooper Johnson approached Appellant to see what might have caused him from continuing to stop at the green light.Appellant rolled down his window to speak to Trooper Johnson.

††††††††††† While speaking with Appellant, Trooper Johnson could smell alcohol on his breath.Trooper Johnson asked Appellant if he would step out of his car and perform some field sobriety exercises.Finding Appellant to be impaired, Trooper Johnson placed Appellant under arrest for DUI.††††

†††††††††††

STANDARD OF REVIEW

Appellate review of a motion to suppress is a mixed question of law and fact. Bautista v. State, 902 So. 2d 312, 314 (Fla. 2d DCA 2005).Deference is given to the trial court's factual findings if they are supported by competent and substantial evidence. Id. (citing Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003)).

 

 

LAW AND ANALYSIS

††††††††††† Appellant was not seized when Trooper Johnson stopped behind his car and activated his lights.A seizure occurs when an officer, by a show of authority or physical force, restrains a citizenís liberty.Terry v. Ohio, 392 U.S. 1 (1968).The standard is whether a reasonable person would have believed he was not free to leave, based on a totality of the circumstances.United States v. Drayton, 536 U.S. 194 (2002); United States v. Mendenhall, 446 U.S. 544 (1980).An officerís use of emergency lights typically evidences an investigatory stop, rather than a consensual encounter.Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002).This, however, is only one factor to be considered.G.M. v. State of Florida, 19 So. 3d 973, 979 (Fla. 2009) (finding that the activation of police lights alone do not constitute a seizure when motorists are stopped on public roadways, and officers activate their lights to indicate that a car is parked on the roadway or that the motorist may be in need of assistance); State v. Roosa, 14 Fla. L. Weekly Supp. 1007a (Fla. 6th Cir. App. Ct., June 15, 2007)(holding that knowledge that a defendantís vehicle has been blocked is a prerequisite to finding that seizure has taken place when a defendant is unconscious or asleep).A seizure cannot occur unless an individual is aware of, and submits to, the police presence and authority.G.M. v. State, 19 So. 3d 973 (Fla. 2009).

††††††††††† In this case, Appellant was completely unaware that Trooper Johnson was stopped behind him with his lights activated.Appellant himself testified that he never saw a trooper come to his window and knock.Appellant did not become cognizant of law enforcement until after Trooper Johnson knocked on his window, yelled at him to stop, and he drove off.Law enforcement could not have led Appellant to believe he was not free to leave when Appellant was not even aware of their presence.Appellant was not seized until after he was on the road, noticed the police lights, and pulled over.At that point, however, the troopers already obtained probable cause from their observations of Appellant at the light.See State v. Porter, 14 Fla. L. Weekly Supp. 776a (Fla. 18th Cir. App. Ct., May 16, 2007).

††††††††††† Similarly, in State v. Baez, 894 So. 2d 115 (Fla. 2004), the Florida Supreme Court found that no stop or seizure occurred where a law enforcement officer found Baez slumped over the wheel of his vehicle in a dimly lit warehouse area at night.Id., at 117.After asking Baez if he was okay, the law enforcement officer asked for identification, which indicated an outstanding warrant for his arrest.While the court determined that no stop or seizure had occurred, it also found that the officer acquired the requisite reasonable suspicion to investigate further.Id., at 115-16.Likewise, it was not unreasonable for Trooper Johnson to proceed with an investigation when he had not yet eliminated reasonable concern and articulable suspicion of criminal conduct.††††††† Appellantís stop was further justified under the emergency aid doctrine, Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007); State v. Swain, 16 Fla. L. Weekly Supp. 988a (Fla. 18th Cir. App. Ct., Aug. 21, 2009); State v. Branham, 16 Fla. L. Weekly Supp. 693b (Fla. 18th Cir. App. Ct., May 4, 2009), the community caretaking doctrine, Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007); Ortiz v. State, 34 Fla. L. Weekly D2311 (Fla. 5th DCA, Nov. 13, 2009); or the welfare check doctrine, Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008).Despite the different terminology, these doctrines follow the same principles.Individuals can be seized when an officer reasonably believes that they are in need of immediate aid.Mincey v. Arizona, 437 U.S. 385, 392-3 (1978); Vitale, at 1221-2.Law enforcement is frequently called to perform functions that are ďtotally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.ĒCastella, at 1292, citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973).Trooper Johnson had reasonable grounds to believe that Appellant required immediate assistance and potentially needed medical attention.The interest in protecting Appellantís safety outweighed his interest in being free from governmental interference.†††††††††††††††

Finally, the troopers activated their lights for their safety, to prevent being hit by approaching cars.Had the troopers not activated their lights, they would not have been protected under Florida Statute Section 316.126(1)(b), requiring vehicles to move out of the closest lane or reduce their speed when approaching a parked emergency vehicle with visual signals.Moreover, a legitimate concern for public safety on roadways can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence.Dept. of Hwy. Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992); Stenmark v. State of Florida, 14 Fla. L. Weekly Supp. 1008b (Fla. 6th Cir. App. Ct., April 23, 2007).††††††

 

 

CONCLUSION

††††††††††† Appellant was not stopped when Trooper Johnson parked behind him with his lights on to check for his welfare and safety.By the time Appellant became aware of law enforcement presence, Trooper Johnson already had the requisite reasonable suspicion to justify detaining Appellant to investigate why Appellant had spent a prolonged time at the green light.Therefore, it is

 

ORDERED AND ADJUDGED that the trial courtís order denying Appellantís motion to suppress is AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 26th day of February 2010.

 

 

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