IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL
CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION
ERIK BORRESEN,
Appellant,
vs.
Appeal No. CRC 01-11556
CFANO
STATE OF FLORIDA,
Appellee.
_________________________________/
Appeal
from denial of defendant’s Motion to Suppress
Pinellas
County Court
County Judge J. Thomas McGrady
Scot E. Samis, Esq.
Attorney for Appellant
Shawn R.H. Smith, Esq.
Assistant State Attorney
Attorney for Appellee
THIS
MATTER is before the Court on the defendant’s appeal from the trial court’s
denial of the defendant’s Motion to Suppress.
After reviewing the briefs and record, this Court affirms the trial
court’s decision.
STANDARD
OF REVIEW
“Appellate review of a motion
to suppress involves questions of both law and fact and an appellate court
must make a de novo review of the
trial court's application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051
(Fla. 2d DCA 2000). Furthermore, “a
ruling on a motion to suppress is presumptively correct, and a reviewing court
should interpret the evidence and reasonable inferences and deductions drawn
from the evidence in a manner most favorable to sustaining the trial court
ruling.” Johnston v. State,
438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).
FACTUAL
AND PROCEDUAL HISTORY
On
October 13, 2000, at approximately 12:30 a.m., Officers David Disano and Michael
Egulf of the St. Petersburg Police Department (SPPD) DUI Enforcement Unit
were summoned to the 300 block of 20th Avenue North in St. Petersburg
by Sergeant Sotolongo, also of the SPPD, in reference to an individual found
asleep in a vehicle in park with the engine running. When officers Disano and Egulf arrived at the
scene, Sergeant Sotolongo was present with his vehicle’s flashers on. Also present was another DUI investigator,
Officer Huntington, who was there for videotaping purposes.
The vehicle in question was facing
east on 20th Avenue, approximately 30 feet from the intersection,
partially on the road and partially on the side of the roadway on property
owned by the City of St. Petersburg. There
is no curb at that location. The roadway
abuts directly with the city’s property known as Sunken Gardens.
There were no “no parking signs” where the vehicle was located, and
there is street parking throughout the area.
The 300 block of 20th Avenue is a residential roadway that
is undivided, but allows for traffic in both east and west directions.
The vehicle was situated in a manner that it would impede the flow
of traffic in the eastbound direction. If
another vehicle were traveling eastbound on the same on the road, if would
have to go around the vehicle or it would strike the vehicle.
Officers Disano and Egulf approached
the defendant’s vehicle and were able to observe the defendant sleeping behind
the wheel with the windows up. Officer
Disano knocked on the driver’s side window numerous times and was able to
waken the defendant who rolled down the driver’s side window. Officer Disano asked the defendant for his
registration, driver’s license and proof of insurance. As Officer Disano asked the defendant to produce
his documentation, he detected an odor of alcohol on the defendant’s breath
and observed that the defendant had bloodshot, watery eyes, slurred speech
and a flushed face. The officer observed
that, while searching for his driver’s license, the defendant passed over
it several times and finally attempted to hand the officer an employee identification
card. The officer asked the defendant
whether he had been drinking that evening and the defendant admitted that
he had approximately three to four beers. The officer then asked the defendant to step
out of the vehicle and conducted a DUI investigation, which led to the defendant’s
arrest for DUI.
The defendant filed his Motion to Suppress
contending that the stop and investigation was not founded upon reasonable
suspicion, and therefore, all evidence obtained in connection with, and subsequent
to, the stop should be suppressed.
In denying the motion to suppress,
the Court stated: “...I guess the
distinction I see in this case is he’s at least partially obstructing traffic
based upon the testimony I have heard. And
I have to take this in the light most favorable to the State. Seeing a person passed out with the engine
running at that hour of the morning in a residential neighborhood, I would
expect and I would want the police officers to at least check it out; and
when they check it out, then the reasonable suspicion occurs.”
Finally, the Court noted for
the record, “That no officer testified that he was concerned for the safety
or whether the driver may be ill, and you may want to use that if you appeal.”
On July 12, 2001, the Defendant
entered a no contest plea to the charge reserving his right to appeal the
dispositive order denying his Motion to Suppress.
ISSUE
The defendant’s issue on appeal is
as follows: Does a person found sleeping in a legally parked car give rise
to a reasonable suspicion of criminal activity sufficient to justify an investigatory
stop?
ANALYSIS
It is clear from the record, and as
pointed out in the defendant’s brief, that the officers’ actions amounted
to an investigatory stop. The defendant,
when he awoke, found himself in the presence of four members of the St. Petersburg
Police DUI enforcement squad, at least one of whom had the flashers of his
vehicle turned on, one who was banging on his window with a flashlight, and
another trying to videotape the events. A
reasonable person in the defendant’s position would not feel free to leave
under those circumstances. See, Popple v. State, 626 So.2d 185
(Fla. 1993). The question therefore
is whether the investigatory stop was lawful.
A
police officer may reasonably detain a citizen temporarily if the officer
has a reasonable suspicion that a person has committed, is committing, or
is about to commit a crime. Id. Furthermore, “the courts of this state have
recognized that a legitimate concern for the safety of the motoring public
can warrant a brief investigatory stop to determine whether a driver is ill,
tired, or driving under the influence in situations less suspicious than that
required for other types of criminal behavior”.
State Dep’t of Highway Safety and Motor Vehicles v. DeShong,
603 So.2d 1349, 1352 (Fla. 2d DCA 1992).
The founded suspicion necessary to justify a stop must be based upon
the totality of the circumstances as viewed by an experienced officer. Williams v. State, 769 So. 2d 404 (Fla. 2d DCA 2000).
As
indicated, the officers came upon a vehicle at 12:30 in the morning, with
the car running, the windows rolled up, and the driver asleep or unconscious
behind the wheel. The car was at least
partially obstructing the flow of traffic.
Several reasonable assumptions could be made by anyone coming upon
the scene: the driver was asleep, ill, a crime victim, attempting suicide,
or the car was broken down. The totality
of the circumstances present in this case as viewed by the two experienced
officers warranted a brief investigatory stop, not only for the defendant’s
welfare, but also for the welfare of others traveling that roadway.
Once
they were able to awaken the defendant, the officers then reasonably asked
the defendant to produce his license, registration, and proof of insurance. While the defendant attempted to locate his
documentation, the officers detected several indicators of impairment, which
justified the officer’s request for the defendant to step out of the car and
perform field sobriety tasks.
The
defendant in his brief cites to Danielewicz v. State, 730 So.2d 363
(Fla. 2d DCA 1999), and argues that the Second District has directly and unambiguously
ruled that a police officer’s observation of a defendant apparently asleep
behind the wheel in a legally parked with the engine running is insufficient
to establish a well-founded suspicion that the person was about to become
involved in criminal activity so as to justify an investigative stop.
In
Danielewicz, an officer with the Clearwater Police Department pulled
into the parking lot of the Bombay Bicycle Club, a restaurant/bar, at 1:30
a.m., and saw, in addition to other vehicles in the lot, the defendant’s car
parked in a legal parking space near the rear of the business. The headlights were on and the engine was running.
No traffic infraction was observed by the officer, and he had no reason
to believe there was any problem with the vehicle.
As the officer approached the vehicle, he saw that water was condensing
on the windows from the air conditioner.
He looked inside the car and saw Danielewicz in the driver’s seat. She appeared to him to be asleep. The officer knocked on the window
to get her attention. Danielewicz
looked at the officer, but did not open her locked door.
The officer then asked her to get out of the car.
She did not do so until the officer asked her five times.
After she unlocked the door and got out of the car, the officer gathered
evidence, which led to her arrest for DUI.
Danielewicz’s
defense counsel filed a Motion to Suppress Evidence of DUI alleging that the
officer’s contact was an illegal stop. The
trial court found that the contact instigated by the officer was an investigative
stop and that it was lawful. On appeal,
the Second DCA agreed that when the officer ordered Danielewicz out of the
car an investigative stop occurred, but found the stop unlawful.
In finding the investigative stop was not based on a well-founded suspicion,
the court found the following facts dispositive:
1. While
the officer suspected Danielewicz was inebriated because she was asleep in
her car, he also stated that people sleep in their cars without criminal implication.
2. The officer did not testify that he was
concerned for the driver’s personal health.
In
this case, the following factual differences distinguish it from Danielewicz
to the extent that this case is not bound by the court’s ruling in Danielewicz:
1.
The defendant’s vehicle, although not illegally parked, was partially on the
road and partially on the side of the roadway on property owned by the City
of St. Petersburg, in a manner that would impede the flow of traffic in the
eastbound direction. It was not legally
parked in a parking lot. If another
vehicle were traveling eastbound on the same on the road, if would have to
go around the vehicle or it would strike the vehicle.
2.
Both Officer Egulf and Officer Disano testified that the defendant’s car was
parked in a place that they would stop to investigate if they initially encountered
the car.
3.
Officer Disano had to knock on the driver’s side window numerous times to
awaken the defendant, instead of knocking only once.
4.
The defendant initially rolled down the driver’s side window allowing the
officers the ability to observe him.
5.
As Officer Disano asked the defendant for his registration, driver’s license
and proof of insurance, he detected an odor of alcohol on the defendant’s
breath and observed that the defendant had bloodshot, watery eyes, slurred
speech and a flushed face. In Danielewicz,
the officer did not observe signs of impairment until the defendant was ordered
out of the car
6.
While searching for his driver’s license, the officer noticed that the defendant
passed over it several times and finally attempted to hand the officer an
employee identification card.
7.
The officer asked the defendant whether he had been drinking that evening
and the defendant admitted that he had approximately three to four beers.
8.
It was after Officer Disano took into account all of these facts that he then
asked the defendant to step out of the vehicle. In Danielewicz, the officer initially asked the defendant to get
out of the car.
Lastly, the defendant argues
that the trial judge applied the wrong standard. In denying the Motion to Suppress, the trial judge stated that he
had to take the facts in a “light most favorable to the State.” However, “a conclusion or decision of a trial
court will generally be affirmed, even when based on erroneous reasoning,
if the evidence or an alternative theory supports it.” Caso v State, 524 So.2d 422 (Fla. 1988). We
find that the evidence supports the trial court’s decision.
We find that when the record is viewed in the light most favorable to upholding the decision of the trial judge, the officers had well-founded suspicion to stop the defendant and investigate the defendant for DUI.
It is therefore
ORDERED AND ADJUDGED that the trial court’s denial of the defendant’s
Motion to Suppress Evidence is AFFIRMED.
DONE
AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this
18th day of March, 2002.
|
__________________________ NANCY MOATE LEY Circuit Judge ___________________________ W. DOUGLAS BAIRD Circuit Judge R. TIMOTHY PETERS Circuit Judge |
Copies
furnished to:
The
Honorable J. Thomas McGrady
Scot
E. Samis, Esq.
P.O.
Box 1511
St.
Petersburg, Florida 33731-1511
Shawn
R.H. Smith, Esq.
Assistant
State Attorney