County Criminal Court: CRIMINAL – Search and Seizure – Stop – One incident of slight veering beyond lane marker insufficient to establish probable cause for stop. Decision affirmed. State v. McKean, No. 03-87 APANO (Fla. 6th Cir.App.Ct. May 5, 2004).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

Appeal No. CRC 03-87 APANO

      UCN522003AP000087XXXXCR

MARY E. MCKEAN

 

            Appellee.

_________________________/

 

 

Opinion filed ___________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Overton

 

Daniel Pawuk, Esq.

Assistant State Attorney

 

Jack Helinger, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The State claims that the trial court erred in granting the defendant’s motion to dismiss because the defendant’s driving warranted an investigatory stop. At the motion to suppress hearing the officer testified that she observed the defendant driving in an erratic and abnormal manner. The trial judge, however, found that the driving was not erratic.

            The trial court’s decision on the motion to suppress is a mixed question of law and fact. The standard of review in this appeal is two-pronged. The “ultimate ruling must be subjected to de novo review but the court’s factual findings must be sustained if supported by competent substantial evidence.” State v. Coney, 845 So.2d 120. 134 (Fla. 2003).

            A review of the transcript of the hearing on the defendant’s motion to suppress reveals that the officer who made the stop testified that she observed the defendant veer out of the lane, over the white painted line at the edge of the lane, and approach the curb. The defendant then veered back into her lane. As the defendant began to veer towards the curb-side of the lane again, the officer made the stop.

            There was no driving infraction noticed by the officer here. No traffic, bicyclists, or pedestrians were affected by the defendant’s driving, therefore no infraction of Failure to Maintain a Single Lane was committed. The lack of a driving infraction, however, is not fatal to the State’s case. Drivers can be legitimately stopped even in the absence of a traffic infraction if the officer has a reasonable suspicion that the driver may be DUI, or if the officer has a reasonable suspicion that the driver may be otherwise impaired or the vehicle malfunctioning. See, State of Florida, Department of Highway Safety and Motor Vehicles v. DeShong v. State, 603 So.2d 1349 (Fla. 2d DCA 1992); Bailey v. State, 319 So.2d 22 (Fla. 1975). It is, however, the facts that are dispositive, not the officer’s conclusions.

And the facts in this case do not rise to the level of reasonable suspicion.  As articulated in the appellee’s brief, the trial court properly considered the number of incidents, the nature of the incidents, and the time and distance over which the officer observed the defendant. The officer testified that she followed the defendant for approximately five blocks, and that during this time the defendant drove at a normal rate of speed. While observing the defendant the officer only witnessed the defendant “veer” over the white line at the edge of the lane once. There was no testimony that the “veering” was done in a rapid or abrupt manner. Neither was there testimony that the defendant weaved within the lane for any significant amount of time. The facts are insufficient to establish a pattern of erratic driving sufficient to justify a stop of the defendant. 

            IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of May, 2004.

 

 

                                                                                    _____________________

                                                                                    James R. Case

                                                                                    Circuit Judge

 

 

 

 

                                                                                    _____________________

                                                                                    Nancy Moate Ley

                                                                                    Circuit Judge

 

 

 

 

                                                                                    ______________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

cc:   State Attorney

 

        Jack Helinger, Esq.

 

        Judge Overton