County Criminal Court:† CRIMINAL LAW Ė Traffic Stop Ė Officer properly made an extra-jurisdictional stop of Appellant. †Trial court affirmed. Anderson v. State, No. 10-CA-005908-WS (Fla. 6th Cir. App. Ct. October 7, 2011).
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
DARALYN JOYCE ANDERSON,†††††
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN:††††††††††† 512010CF002499A000ES
v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††† Case No: †††† CRC10-02499-CFAES
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Lower No: †† 09-3307-SPQTES
STATE OF FLORIDA, †††††††††††††††††††††††††††††††††††
Appeal from Pasco County Court
County Judge Robert P. Cole
R. Scott Andringa, Esq.
Kenneth V. Compton, A.S.A.
ORDER AND OPINION
††††††††† Appellant challenges the trial courtís order denying his motion to suppress.† Specifically, Appellant argues that a Hillsborough County Deputy improperly stopped Appellant in Pasco County since he was out of his jurisdiction.† We disagree.† Therefore, this Court affirms the trial courtís order as set forth below.
Deputy Jason Odom with the Hillsborough County Sheriffís Office was on patrol May 17, 2009 around noon in the area of I-275 in Hillsborough County.† Deputy Odom was in a marked patrol vehicle and Class B uniform.† Deputy Odom was in Hillsborough County when he was first dispatched about Appellant, who was a possible DUI driver.† At the time of the first dispatch, Appellant was traveling northbound on I-275 around Fletcher or Bearss in Hillsborough County.† In response, Deputy Odom got on I-275 and proceeded north.† The traffic was initially moving freely, but started backing up about a quarter of a mile before Deputy Odom left the county.† At the time, he did not know if the backup was caused by Appellant, but the traffic had slowed down greatly and dispatch reported that Appellant was driving at an extremely low rate of speed.† As he proceeded into Pasco County, before encountering Appellant, drivers stuck their hands out of the car and pointed up ahead of them as Deputy Odom continued to make his way through traffic at a slow rate of speed compared to the speed limits.† The traffic was moving at about 30 miles an hour, but the speed limit was 55 to 70 miles an hour.† Drivers tended to get out of Deputy Odomís way since he was a police officer driving a marked patrol vehicle.† He never had to leave the road to go around traffic on the shoulder.† Deputy Odom never flipped on his lights, strobes, or siren while approaching Appellant.† He continually received updates on Appellantís location from dispatch.† At some point, Deputy Odom was informed that the actual caller was a retired officer from his agency, who was providing vehicle speeds, locations, and mile markers, as Deputy Odom was traveling northbound.† The updates through dispatch were not available to anyone else other than responding units since it was a closed channel.† Deputy Odom never saw Appellant in Hillsborough County.†
When Deputy Odom saw the black vehicle that Appellant was driving, he immediately merged in behind it.† The traffic was free-flowing past Appellant and was in fact caused by Appellant since people seemed to be afraid to pass her.† Appellant was moving at about 30 miles an hour.† Deputy Odom got directly behind Appellant, but did not immediately activate his emergency equipment because he wanted to observe her.† Appellant left the roadway at least twice, moving to the right, over the rumble strips.† There was a yellow line around the rumble strips, and about half her vehicle went over the line.† Both sets of tires did not leave the road, but approximately half her vehicle left the roadway at least twice.† Even when Appellant was on the road, she did not maintain the lane.† Appellant was weaving within the lane when she was not leaving the roadway.† Appellant continued to drive at about 30 miles an hour on I-75.† Nothing in front of her was slowing her down.† All of Deputy Odomís observations occurred in Pasco County. ††
Deputy Odom followed Appellant for about a mile.† Based upon his training, experience and observations of Appellant, he found Appellantís driving to be extremely erratic and not normal.† Deputy Odom activated just his lights at first.† When Appellant did not respond to the lights, Deputy Odom began to chirp his siren.† And when Appellant did not respond to that, Deputy Odom had to activate the siren.† In that process, Appellant passed what Deputy Odom found to be the safest place to pull off the road: the entrance to the rest stop in between State Roads 54 and 56.† She passed that entrance after Deputy Odom had activated his emergency equipment, and Appellant stopped almost at the exit of the rest area, barely pulling off the side of the road, within about a foot of the lanes of travel.† The stop occurred about two to three miles into Pasco County.
Deputy Odom approached Appellantís vehicle from the passenger side because there was not enough room for him to approach from the driverís side since Appellant was parked so close the travel lanes.† He asked if she knew why he had stopped her.† Appellant responded that she did not know.† Deputy Odom explained that she was driving all over the road.† He asked Appellant what her story was, where she was going, or what was wrong.† Appellant responded that she was going to the doctorís office.† Deputy Odom inquired what doctor she was going to and its location.† Appellant replied that it was in Town ĎN Country.† Deputy Odom pointed out to her that she was going northbound on I-75; Town ĎN Country was the other direction.† Appellant really did not have a reply.
Deputy Odom observed that Appellantís eyes appeared to be not completely open.† Her movements and speech were sluggish.† When Deputy Odom asked Appellant for identification, she fumbled around.† It was difficult to understand her at times.† Based upon his observations of Appellant, and his training and experience, Deputy Odom believed a DUI investigation was warranted.† Deputy Odom asked dispatch to call Pasco County or the Florida Highway Patrol to see if any of those units were available.† Pasco responded that they were busy; and the Florida Highway Patrol said that they were busy, but that they would have someone respond as soon as they were available, which they did.†
Deputy Odom took Appellantís keys and put them on the roof of her car.† At one point, he went back to his vehicle.† Deputy Odom realized that the place they were stopped was not safe.† He did not feel comfortable getting Appellant out of the car.† Deputy Odom had to make a decision: try to get Appellant out of the car when she was a foot away from traffic or have her pull farther over to the right.† He instructed Appellant that he was going to give her the keys back just for a moment and that she was to pull the car farther off the road.† Then Deputy Odom took the keys back from her.†
The Florida Highway Patrol eventually responded, and Appellant was arrested and charged with DUI and Driving While License Suspended or Revoked.† Appellant filed a motion to suppress on December 11, 2009, arguing that Deputy Odom made an improper extra-jurisdiction stop.† On February 9, 2010, a hearing was held on the motion.† Two days later, the trial court denied Appellantís motion to suppress in a written order.† In the February 11, 2009 order, the trial court found that the deputy ďproperly stopped defendantís vehicle,Ē citing Roberts v. DHSMV, 976 So. 2d 1241 (Fla. 2d DCA 2008) and State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998).† On April 20, 2010, Appellant entered a no contest plea but reserved the right to appeal the denial of her motion to suppress.† Appellant filed a timely notice of appeal on April 23, 2010. †
LAW AND ANALYSIS
††††††††† A trial court's ruling on a motion to suppress presents a mixed question of law and fact.† Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).† Deference is given to the trial court's factual findings if they are supported by competent and substantial evidence.† Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003).† The trial courtís ruling is presumptively correct and will be upheld if supported by the record.† Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007); State v. Shuttleworth, 927 So. 2d 975, 978 (Fla. 2d DCA 2006).† However, the trial court's application of the law to the facts is reviewed under the de novo standard.† Williams v. State, 769 So. 2d 404, 406 (Fla. 2d DCA 2000).
††††††††† Police officers outside their jurisdiction can make an arrest as private citizens where a private citizen could lawfully make an arrest.† Collins v. State, 143 So. 2d 700 (Fla. 2d DCA 1962); Roberts v. Dep't of Highway Safety & Motor Vehicles, 976 So. 2d 1241 (Fla. 2d DCA 2008).† The applicable standard of an extra-jurisdictional police arrest is the same as that applied to a citizenís arrest.† State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991).† Citizens have a right to arrest a person who commits a misdemeanor in their presence when it amounts to a breach of the peace.† Clinton v. State, 421 So. 2d 186, 188 (Fla. 2d DCA 1982).† And driving while under the influence is considered a breach of the peace that would authorize a citizen or an officer outside his jurisdiction to make a citizenís arrest.† State v. Furr, 723 So. 2d 842, 844-45 (Fla. 1st DCA 1998); Edwards v. State, 462 So. 2d 581, 582 (Fla. 4th DCA 1985).† Such an arrest does not become improper or run afoul of the color of law doctrine merely because an officer outside his jurisdiction drives a marked police vehicle, activates his lights or sirens, wears his uniform, or uses other accoutrements of his police office.† State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998); Phoenix v. State, 455 So. 2d 1024, 1025 (Fla. 1984).† Thus, Deputy Odom validly made a citizenís arrest of Appellant who was driving while intoxicated even though he was in uniform, driving a marked police vehicle, and otherwise using his police equipment.
††††††††† Appellantís argument that reversal is warranted has no merit.† Deputy Odomís extra-jurisdictional detention of Appellant was valid as a citizenís arrest.† The trial court properly denied Appellantís motion to suppress.† It is therefore, †
††††††††† ORDERED AND ADJUDGED that the trial courtís order denying Appellantís motion to suppress is hereby AFFIRMED.
DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 7th day of October 2011.
Original order entered on October 7, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.
Kenneth V. Compton, A.S.A.
R. Scott Andringa, Esq.