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 PINELLAS COUNTY

 

 

BRIAN BOLAN

 

            Appellant,

 

v.                                                                           Appeal No.: CRC 10-00081APANO

UNC No.: 522010CT004374XXXXXX

STATE OF FLORIDA,                                         UCN No.: 522010AP000081XXXXCR  

 

            Appellee.

____________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Granting Motion to Suppress

entered by the Pinellas County Court

County Judge Paul A. Levine

 

Simone Lennon, Esquire

Attorney for Appellant

 

Kristin Carpenter, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

ANDREWS, Judge.

            THIS MATTER is before the Court on Appellant, State of Florida’s appeal from a decision of the Pinellas County Court to denying Appellee’s Motion to Suppress.  We have jurisdiction.  See Fla. R. App. P. 9.140(b)(2)(A).  After reviewing the briefs and record, this Court affirms the judgment of the County Court.

Factual Background and Trial Court Proceedings

            On January 16th, 2010 Officer Corey Hughes, a three year veteran of the Largo Police Department, was dispatched to investigate a car accident at the corner of Seminole Blvd. and Ulmerton Road.  Officer Hughes testified that upon arrival he made contact with the parties to the accident and conducted an accident investigation. He determined that the Appellant was not at fault for causing the crash.  Officer Hughes also determined that the Appellant was the sole occupant of the SUV he was driving.  During the investigation of the accident Officer Jorge Alameda arrived. Officer Hughes, to the “best of [his] recollection”, was not able to say that Officer Alameda was called to the scene by him and did not assist in the accident investigation.  Officer Hughes also did not request Officer Alameda perform a DUI investigation. 

            Office Jorge Alameda is a six year veteran of the Largo Police Department.  He testified he is a Drug Recognition Expert and a DUI instructor.  He has administered field sobriety exercises hundreds of times.  On the day in question he was on routine DUI patrol.  He observed a call on the computer screen in his car referencing a crash.  He testified that because he is a DUI officer in the traffic unit he looks for DUI BOLO’s and crashes.  He testified that when he is able he responds to the scene of a crash for two reasons: to provide security and medical attention if needed and if there is a DUI, to handle the DUI investigation.  Officer Hughes did not request that a DUI investigation be conducted.  At the scene he made contact with Appellant who was leaning against his car and asked if Appellant needed medical attention to which Appellant responded he did not.  Appellant admitted he was driving.  Officer Alameda testified that he observed the defendant’s face was flush and he had a strong, distinct odor of an alcoholic beverage emitting from his breath.  Appellant’s speech was slurred.  Though it was dark out, Appellant was wearing sunglasses.  Officer Alameda asked Appellant to remove his sunglasses and was able to see the defendant’s eyes were bloodshot, watery and glassy.  Officer Alameda conducted a DUI investigation during which the defendant admitted he had been drinking rum and Cokes two hours earlier.  Upon completion of the field sobriety tasks, Appellant was placed under arrest for DUI. 

            Appellant filed a motion to suppress challenging Officer Alameda’s legal authority to arrest Appellant for DUI.  After an evidentiary hearing, the trial court made some oral findings of fact and entered a written order denying the motion.  The Appellant reserved the right to appeal the denial of his motion to suppress. [1] 

Standard of Review

Our review of a trial court's ruling on a motion to suppress evidence involves a mixed question of law and fact. We accord a presumption of correctness with regard to the trial court's determination of facts where the trial court's factual findings are supported by competent, substantial evidence.  All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court's ruling.  However, we review the trial court's application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001); T.T.N. v. State, 40 So.3d 897 (Fla. 2 DCA 2010); State v. Pruitt, 967So.2d 1021 (Fla. 2nd DCA 2007).

Issues Presented and Analysis

             Appellant raises two issues for consideration of this court.  First Appellant argues that his arrest was unlawful because Officer Alameda lacked statutory authority to conduct a DUI investigation or arrest.  Next Appellant argues that even if Officer Alameda had the authority to arrest him there was no probable cause to arrest him for DUI. 

  1. Statutory Authority to Arrest:           

            Statutorily there are three circumstances under which a police officer may arrest someone for a misdemeanor:  

(1) ‘the officer witnesses each element of a prima facie case,’ (2) the ‘officer is investigating an ‘accident’ [and] develop[s] probable cause to charge DUI,’ or (3) ‘one officer calls upon another for assistance [and] the combined observations of the two or more officers [are] united to establish the probable cause to the arrest.’ Steiner v. State, 690 So.2d 706, 708 (Fla. 4th DCA 1997) (citing §§ 316.645, 901.15(1), Fla. Stat. (1993), and State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990)). The third circumstance is also called the fellow officer rule. See Horsley v. State, 734 So.2d 525, 526 (Fla. 2d DCA 1999).

                                    

Sawyer v. State, 905 So.2d 232 (Fla. 2d DCA 2005).  Both the Appellant and the Appellee agree that the facts of this case lend themselves to the consideration of only the second circumstance.  We also concur.  Florida Statutes §316.645 (2010) states:

A police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash.

 

An officer’s investigation at the scene is not limited only to the traffic accident itself but may also be criminal in nature.  David A. Demers, Florida DUI Handbook, 281 (2010-2011 ed.) See also, Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. 2005). 

            The Appellant argues that because Officer Alameda was not dispatched to the accident scene nor summoned to the accident scene and did not participate in investigating the traffic accident he “served no lawful purpose in conducting the DUI investigation.”  Essentially, Appellant argues that unless an officer is dispatched to the scene of a traffic crash or summoned to the scene of a traffic crash he or she cannot conduct a DUI investigation.  Appellant presented this argument to the trial judge and his comments are instructive: 

Take a 10-car crash which happens on 75, or even worse crashes than that, it would not be logical for other police officers not to respond until the arresting officer, or the officer on the scene, speaks to 32 people to determine how many paramedics he needs, how many of this he needs, how many helicopters he needs, so unless you have a case that says he should not, could not, stop at the scene of his own volition . . .

 

No such case law was presented to the trial court.  Nor has such a case been presented to this court.  However the trial court highlights the obvious impact of interpreting Fla. Stat. 316.645 consistent with Appellant’s argument.  To support his argument Appellant cites to State v. Hooks, 15 Fla. Law. Weekly Supp. 886 (Fla. 17th Cir. Ct. 2008).  In Hooks, the defendant was charged with DUI.  The arresting officer responded to the accident scene and was asked to conduct the DUI investigation.  He did not investigate or endeavor to investigate the traffic accident or make an independent determination that the defendant was in actual physical control of any vehicle involved in the accident.  Id.  The Hooks, court noted that the officer conducting the DUI investigation “did not legitimately have the element of driving or being in actual physical control of the vehicle, unless he questioned the witnesses and performed his own personal investigation while investigating the DUI charge.”  Id.  No such defect exists at bar.  Here, Officer Alameda testified that prior to asking Appellant to participate in the field sobriety tasks, he first determined that the defendant was the driver of a vehicle involved in the accident by inquiring of the defendant himself.   Hooks is distinguishable and is not applicable.

            Florida Statutes §316.645 (2010) creates an exception to the warrant requirement and the requirement that the officer perceive all the elements of a misdemeanor with his senses. See generally, Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997).  The guiding principle of statutory construction is legislative intent.  See McGhee v. State, 847 So.2d 498, 501 (Fla. 4 DCA 2003).  Intent is most clearly manifested by the language used.  Consequently, there is no need to resort to principles of statutory construction where the statute's language is clear.” Id. (citations omitted).  In Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. 2005) the court was similarly asked to interpret the meaning of “an investigation” as it is written in Fla. Stat. 316.645.  The court held:

The issue is whether the statute is limited to the officer making accident investigations, or whether it applies to any officer making any investigation at the scene of an accident, i.e. a DUI investigation. Florida uses the ‘plain meaning rule’ when considering the meaning of a word in a statute. Knowles v. Beverly Enter-Fla., Inc., 898 So.2d 15 (Fla. 2004) (citing Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898 (Fla. 1996). Since the plain meaning of ‘an investigation’ means ‘any investigation’, it follows that §315.645 applies to any investigation involving a traffic accident and not just the ‘accident investigation’ itself. 

 

Id.  We agree that the permissive language of the §316.645 requires only that an officer make “an investigation” at the scene of a traffic crash and “based upon [the officer’s] personal investigation” she may arrest an offending party if that party has violated the criminal laws of this state.  Absent from the statute is the restrictive language Appellant asks the court to now find.  Nowhere is it written that the definition or meaning of “an investigation” as written in the statute means an investigation of the traffic crash. Nor is it written that unless an officer is summoned to the scene by the officer dispatched to or charged with investigating the traffic crash, any investigation she does “serves no lawful purpose.”  We find no error in the trial court’s ruling.

  1. Probable Cause to Arrest

 

            A full evidentiary hearing was had in this cause on the motion to suppress.  During the hearing the trial court heard the testimony of the arresting officer, Officer Alameda.  Officer Alameda testified that upon making contact with Appellant he observed Appellant’s speech was slurred and at times difficult to understand, his face was flushed and a strong order of an alcoholic beverage emitting from Appellant’s breath.  When Appellant removed his sunglasses Appellant’s eyes were bloodshot and watery.  Officer Alameda administered the HGN test and received six out of six clues that Appellant was impaired.  Officer Alameda testified that based on his preliminary observations he had reason to believe that Appellant was impaired and asked Appellant to submit to field sobriety tasks.  The video of field sobriety exercises was played in open court for the trial court’s personal observation.  The questions asked of Appellant by Officer Alameda and the answers provided, as well as Appellant’s performance of the various sobriety exercises he was asked to perform, were evaluated by the trial court.  After reviewing the video and observing the direct and cross examination of Officer Alameda the trial judge did not find that there was an absence of probable cause to believe that Appellant was operating a motor vehicle, under the influence to the extent that his normal faculties were impaired. 

‘A trial court's ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.’ State v. Hebert,  8 So.3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001)).

 

State v. Triplett, 2011 WL 2135541 (Fla. 4 DCA 2011).  See also, Murray v. State, 692 So.2d 157, 159 (Fla.1997).  “We review orders on motions to suppress to determine whether the trial court's factual findings are supported by competent substantial evidence . . .” State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008) (citing Thomas v. State, 894 So.2d 126, 136 (Fla.2004)). We find that there was competent and substantial evidence presented in the trial court to support the trial court’s denial of the motion to suppress. 

            IT IS THEREFORE ORDERED that the order of the trial court denying Appellant’s Motion to Suppress is affirmed.   

            ORDERED at Clearwater, Florida this ___ day of August, 2011.

 

Original order entered on August 18, 2011 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.

 

 

cc:       Honorable Paul A. Levine     

            Simone Lennon, Esquire

            Kristin Carpenter, Esquire

 

 

 

 



[1] The record as submitted on appeal did not include Appellant’s change of plea and colloquy or reservation of rights. Appellant’s initial failure to include evidence of his reservation of rights to challenge the denial of the motion to suppress barred this court from consideration of the appellate issues until evidence was presented that court’s appellate jurisdiction was invoked.  This court relinquished jurisdiction back to the trial court and ordered Appellant to provide the transcript of the change of plea.  The transcript of the plea colloquy reflects that Appellant entered a plea and reserved the right to appeal the denial of the motion to suppress.