County
Criminal Court: CRIMINAL LAW – DUI – motion to suppress – length
of detainment in rear of police cruiser – trial court did not err in denying
motion to suppress – appellant was visibly intoxicated on scene, attempting
to flee, intersection was busy and dangerous – temporary detention of 30-45
minutes was reasonable response to demands of situation – detention was necessary
to prevent appellant’s escape and to conclude accident and DUI investigations
– detainment did not amount to de facto arrest – Order and conviction affirmed.
Dulus v. State, No. 02-15001 (
IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF
IN AND
APPELLATE
DIVISION
MICHAEL
DULUS,
Appellant,
vs.
APPEAL NO: CRC02-15001CFANO
STATE
OF
Appellee.
/
Opinion filed April ____, 2003.
Appeal from a decision of the
County
Court for
Robert J. Morris, Judge, and
William H. Overton, Judge.
Roger D. Futerman, Esquire
Attorney for Appellant.
Assistant State Attorney.
ORDER AND OPINION
In the lower court, Dulus pleaded no contest to driving under the influence (DUI) after the trial judge denied his motion to suppress. He was convicted and sentenced to one year probation, assessed various fines and costs, and his driver’s license was suspended for one year. His argument on appeal is twofold. He contends that the pat-down search of his person was improper as law enforcement lacked a good faith basis to believe that he was armed and dangerous. He also asserts that the duration of his detainment in the back of the police cruiser while handcuffed was unlawful. We affirm.
In
Connor v. State, 803 So. 2d 598 (Fla. 2001), the
Florida Supreme Court clarified that appellate courts must accord lower court
rulings on motions to suppress “a presumption of correctness
... with regard to the ... determination of historical facts.”
The testimony presented to the trial court on the motion to suppress was as follows. On February 9, 2002, Officer Doswell of the Pinellas Park Police Department was dispatched, at approximately 9 p.m., to the scene of an accident involving significant damage to the victim’s vehicle but no personal injuries. Upon arrival, Officer Doswell observed that a Pinellas County Sheriff’s deputy was already on scene. In exchanging custody, the Sheriff’s deputy informed Officer Doswell that, according to the victim and the on-scene witnesses, Dulus caused the accident and then attempted to flee the scene but was prevented from doing so by the victim and witnesses. Further, he informed Officer Doswell that he performed a pat-down search on Dulus, which revealed no weapons, but that he did locate tools in the bed of Dulus’ truck that could be used in a threatening manner. Finally, he informed Officer Doswell that he detained Dulus with handcuffs in the rear of his cruiser for being combative and verbally abusive.
In transferring Dulus to his own cruiser, Officer Doswell observed that he was unable to communicate coherently, could not stand on his own, and had slurred speech. Subsequently, Officer McNeil arrived on the scene, after which Officer Doswell assigned the case over to him. Dulus was then unhandcuffed and released to Officer McNeil for a DUI investigation. Pursuant to that investigation, Dulus failed the field sobriety and breathalyzer tests.
The
first issue we must discuss is jurisdictional.
In State v. Ashby, 245 So. 2d 225 (
Here, the record before us does not reflect that the trial judge found the issues to be dispositive. [1] Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988) (holding that the trial court “is obligated to determine the dispositive nature of the reserved question,” and that the mere acknowledgment that the defendant reserved an issue for appeal does not suffice). Nor does the record reflect that the State stipulated to the dispositiveness of the issues. Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980). It may be that had the trial judge granted the motion, the State would have proceeded to trial on other evidence. See e.g., Sune v. State, 402 So. 2d 11 (Fla. 3d DCA 1981) (issues on motion to suppress not dispositive because evidence to same effect was available through witness testimony).
In his brief, Dulus states that he entered his plea specifically reserving the right to appeal the denial of the motion to suppress. He also asserts that the trial judge found the motion to be dispositive. In support of the latter statement, he cites to R34-37. That record cite, however, refers to the Judgments of Guilt and Orders of Probation, which contain only boilerplate language. Moreover, the plea form, which indicates Dulus pleaded guilty, does not reflect that he reserved the right to appeal the denial of his motion to suppress.
Although
the record is devoid of any finding that the issues were dispositive, the
“murky” record on appeal suggests that Dulus entered his plea with the understanding
that the issues were dispositive. Therefore,
as was done in
At the suppression hearing, the Sheriff’s deputy, who was first on the scene, did not testify. [2] Instead, Officer Doswell testified, without hearsay objection, as to what the Sheriff’s deputy communicated to him when he arrived on the scene. That testimony is indicated above. As to Officer Doswell, he explained that he briefly detained Dulus, who he thought was visibly intoxicated, because the witnesses told him that Dulus was attempting to flee the scene. He also explained, on redirect, that he detained Dulus for officer safety, and for Dulus’ own safety (i.e., “he wasn’t in a condition to be able to walk around” [a busy traffic intersection]).
Officer Doswell testified that Dulus had been detained in the rear of the Sheriff’s deputy’s cruiser for “less than 30 minutes.” He testified that Dulus was detained in his own vehicle for “less than 15 minutes.”
Based
upon a de novo review of the evidence presented below, we find that competent
evidence exists to conclude that the temporary detention of Dulus was “a reasonable
response to the demands of the situation.”
Reynolds v. State, 592 So. 2d 1082, 1084 (
In conclusion, we find that the duration of Dulus’ detainment was reasonable under the circumstances. See Saturnino-Boudet v. State, 682 So. 2d 188 (Fla. 3d DCA 1996) (finding that temporary detention of a defendant for 30-40 minutes to await arrival of canine unit based on founded suspicion of drug activity was part of lawful Terry stop and not a de facto arrest); State v. Nugent, 504 So. 2d 47 (Fla. 4th DCA 1987) (holding that 30-minute detention did not transform Terry stop into arrest); Finney v. State, 420 So. 2d 639, 643 (Fla. 3d DCA 1982) (“Given the right to stop the vehicle, under the circumstances, the officers were justified in detaining the defendant for approximately ninety minutes.”); State v. Merklein, 388 So. 2d 218, 219 (Fla. 2d DCA 1980) (finding that it was reasonable for officers to detain the defendants for 20 to 40 minutes pending arrival of another officer, robbery victim, and witnesses); cf. Goss v. State, 744 So. 2d 1167 (Fla. 2d DCA 1999) (finding that handcuffing the defendant and placing him in the back of the patrol car during an investigatory stop was not justified where the State “introduced no testimony or evidence showing a reasonable necessity for this action, either for officer safety or to prevent Goss from fleeing.”).
We reject Dulus’ argument that his detention amounted to a de facto arrest. The cases to that effect typically involve the defendant’s removal from the scene, which did not occur here. See Saturnino-Boudet, 682 So. 2d at 193 (“Where, however, the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring probable cause of prior judicial authorization.”); Goss, 744 So. 2d at 1168 (“The cases recognizing a de facto arrest generally involve physical removal from the scene and transportation, not just temporary placement, in a patrol car.”); see also State v. Rivas-Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996) (finding defendant de facto arrested for DUI where he was handcuffed, placed in patrol car, and transported back to the police station for questioning).
We affirm the trial judge’s ruling on the motion to suppress. However, we remand with directions for the clerk to correct the scrivener’s error on the plea form. [3]
DONE
AND ORDERED in Chambers, at
____________________________________
JOHN A. SCHAEFER, Circuit Judge
____________________________________
W. DOUGLAS BAIRD, Circuit Judge
cc: Roger D. Futerman, Esquire
State Attorney’s Office ____________________________________
NANCY MOATE LEY, Circuit Judge