County Criminal Court: CRIMINAL LAW – Traffic Stop– trial court did not err in granting motion to suppress- the officer did not have the requisite founded suspicion of DUI to conduct a lawful traffic stop- the only evidence regarding the driving was that the passenger side tires went over the line twice and that appellee made a u-turn --Order affirmed. Christiansen v. State, CRC0400663CFAES (Fla. 6th Cir. App. Ct. April 5, 2005).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

STATE OF FLORIDA,

Appellant,

v.

MARY EILEEN MURPHY, Case No: CRC04-03064CFAES

Appellee.

and

WESLEY JOHN CHRISTIANSEN, Case No: CRC04-00663CFAES

Appellee.

_____________________________/

Appeals from verdict, judgment and sentence Pasco County Court

County Judge Debra Roberts

Office of the State Attorney

James Campbell, Esq.

Attorney for Mary Eileen Murphy

County Judge Marc H. Salton

Office of the State Attorney

Robert W. Attridge, Esq.

Attorney for Wesley John Christiansen.

ORDER AND OPINION

THIS Court has for review the matter of State v. Murphy, CRC04-03064CFAES and State v. Christiansen, CRC04-00663CFAES. Because both cases raise the same issue, i.e., whether or not there was reasonable suspicion to conduct a traffic stop, the Court will address both cases in this opinion.

I. Stop/Founded suspicion

A traffic stop is a seizure under the Fourth Amendment and courts must balance the degree of intrusion against some legitimate government interest. Jones v. State, 459 So. 2d 1068, 1072 (Fla. 2d DCA 1984). The legal standard for determining the constitutionality of a stop following a traffic infraction is different from the standard for determining the constitutionality of an investigative stop. See, DHSMV v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992); State v. Snead, 707 So. 2d 769, 770 (Fla. 2d 1995). When an officer observes a traffic infraction, the infraction itself creates the required probable cause for a stop. Snead, 707 So. 2d at 770. The legal standard for investigative stops is set forth in section 901.151, Florida Statutes. It codifies the holding in Terry v. Ohio, 392 U.S. 1 (1968) and states:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state ... he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

In those circumstances in which the officer has observed no traffic infraction, courts have held that DUI is a legitimate safety concern, and can warrant a brief investigative stop. DeShong, 603 So. 2d at 1352. An investigative stop is permissible under the Fourth Amendment when based upon an officer’s reasonable suspicion. State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995); § 901.151, Fla.Stat. (1999). "Founded or reasonable suspicion" of criminal activity is a belief which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Donaldson v. State  803 So.2d 856 (Fla. 4th DCA 2002). The law is well settled that in determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop, "the totality of the circumstances-the whole picture-must be taken into account." Tamer v. State, 484 So.2d 583, 584 (Fla.1986) (quoting from United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)). Even when none of the facts standing alone would give rise to a reasonable suspicion, when taken together as viewed by an experienced deputy[1], they can provide clear justification for a brief detention. Tamer, 484 So.2d at 584. A court's evaluation of reasonable suspicion is guided by common sense and ordinary human experience. Id. at 584-585.; Chappell v. State  838 So.2d 645, 647 (Fla. 5th DCA 2003). 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. DeShong, 603 So. 2d at 1352. Erratic or unusual driving has been held sufficient to establish founded or reasonable suspicion. DeShong, 603 So. 2d at 1351.

II. Facts in Murphy

Appellant was arrested on February 14, 2004, and charged with driving under the influence. Deputy Gary Carmen testified that he was employed with the Pasco County sheriff's Office since October of 2000. He testified that he has had training in the area of DUI's. Specifically, he attended a forty hour block reference DUI's and attended Field Sobriety Test school in Lakeland. Carmen testified that on February 14, 2004, he was on patrol on US 19. He was driving behind the defendant's vehicle near the intersection of US 19 and SR 52, and he followed her vehicle which was traveling southbound. While following her vehicle, he noticed in a short distance, that her vehicle swerved from the slow lane that she was traveling in, southbound, off the roadway onto the shoulder three times in a matter of approximately half of a mile. He testified that just two of the tires actually touched the grass, not the entire car. He proceeded to testify that that was why he pulled her over. The state asked "[a]nd what was your purpose in pulling her over for swerving?" and Carmen responded "[t]hat they could possibly--" . . .. defense counsel objected arguing speculation and the objection was sustained. The deputy testified that he did pull the vehicle over and initiated a traffic stop. He explained that he was probably five car lengths behind defendant when he pulled her over. He further testified that there was some light traffic and there was nobody between his vehicle and hers.

Deputy Carmen testified that in his probable cause affidavit he did not indicate that the vehicle swerved off the road 'three' times, instead he stated 'several' times. Carmen testified that no other vehicles took evasive action to avoid defendant's vehicle. He also testified that the defendant was driving within the sped limit. Finally, defense counsel asked: "It wasn't a continuous weaving pattern; was it sir? It wasn't continuous weaving. You described it as leaving the highway on the right hand side with her right hand tires leaving the road on several occasions; is that correct?" The deputy responded that that was correct.

The trial court took it under advisement and thereafter entered an order granting appellee's motion to suppress. The court recited its factual findings and then stated

An officer may stop a vehicle if there is probable cause to believe the driver has committed a traffic infraction or when based on the officer's knowledge, training and experience he has reasonable suspicion to believe the driver is under the influence. In this case the state failed to present sufficient evidence regarding the officer's experience in DUI stops and investigations. The court further finds that under the facts of this case there was no probable cause of a traffic infraction.

III. Facts in Christiansen

Defendant was charged with Driving Under the Influence on July 25, 2003. Officer John Nohejl testified that he was on road patrol Friday evening, July 25, 2003. Nohejl testified that he was traveling northbound on US 19 when he made a u-turn on US 19 from Cedar Lane. At that time, he observed the defendant traveling southbound on US 19. He explained that when he 'took the u-turn' he was moving in the same direction as the defendant's vehicle and was right behind him. He testified that he observed defendant go from the fast lane into the center lane. His passenger side tires went over the actual line twice, before Belleview, which is where defendant subsequently made a u-turn. He was asked to describe the distance and manner in which defendant was driving that caused his tires to go over the lane twice. Nohejl explained: ". . . [h]e was driving southbound like I said in the fast lane. From where Cedar Lane is to Belleview on US 19 is maybe 150 yards or more. When he was driving, his passenger-side tires went over into the center line on two different occasions before we reached Belleview at US 19, and that is where I tried to initiate the traffic stop." Nohejl testified that he was concerned because he was not sure if this gentleman had been under the influence or not. The officer explained that there was some traffic out, and it was about 3:00 am. The officer also testified that there were no other vehicle's around the immediate area besides his own vehicle, which was directly behind defendant's. He explained that after observing that driving pattern he initiated his lights and sirens for a traffic stop. Nohejl testified that he put on his lights at US 19 and Belleview. He explained that he was about one car length behind defendant. He further testified that defendant did not stop as he was traveling southbound and proceeded to make a u-turn on US19 and started to travel northbound. He still had his lights and sirens on and defendant pulled into the Travel Inn Hotel and US 19, which was less than a block away from the u-turn. He testified that appellant "[i]mmediately . . . jumped out of the car. He was in physical control of the car. He was the only person in the car and tried to go towards his motel room."

On cross examination Nohejl acknowledged that from where he made the u-turn (Cedar Lane) and observed defendant driving, to where defendant made the u-turn (Belleview) was a very short distance. He also acknowledged that at best there were two times when he saw defendant fail to maintain a single lane, and that he did not endanger persons or property on either of those occasions.

Nohejl testified that he cited defendant for failure to maintain a single lane and for the open container of alcohol in the vehicle. When asked why he stopped the vehicle, even if he 'didn't almost strike another vehicle', the officer responded '[b]ecause the gentleman just did not [swerve] once. He swerved twice into the actual center lane and if another vehicle was coming it could have caused a serious accident. From my experience in being in law enforcement it was my observation that this gentleman might have been under the influence with his driving patterns."

The court granted defendant's motion to suppress citing Crooks. The court stated:

The testimony is that within a very short period of time the officer observed the defendant's apparently, right tires cross from the fast lane to the center lane twice. I don't believe that, in and of itself, justifies a reasonable suspicion that someone is under the influence. . . .

The court also distinguished this case from Roberts because here, there was no 'continuous weaving' as in Roberts. [2]

IV. Crooks[3]

Florida Statutes, Section 316.089(1), states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” The statute “recognizes that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision.” See Jordan v. State, 831 So. 2d 1241, 1243 (Fla. 5th DCA 2002). "Section 316.089 is similar to section 316.155, Florida Statutes, governing the use of turn signals, in that a violation does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern." See State v. Riley, 638 So.2d 507 (Fla.1994).

In Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998), the Second District Court of Appeal reversed the trial court's denial of a Motion to Suppress, finding that the officers did not have reasonable suspicion. In Crooks, approximately 2:30 p.m., Mr. Crooks was driving a 1993 Jeep Cherokee northbound on I-75 in Collier County. On that afternoon, Deputy Clifford Deutsch and Trooper John Wilcox had decided to patrol the interstate in their marked cars as a two-car team. For some reason, they decided to follow Mr. Crooks' vehicle. As the officers followed Mr. Crooks, the trooper, traveling in the left lane, pulled up alongside Mr. Crooks' Jeep in the right lane, while the deputy followed behind Mr. Crooks at a safe distance. The deputy observed Mr. Crooks drive his car over the right-hand line on the edge of the right lane of northbound traffic. This movement was away from the trooper's car, and the trooper did not claim that this movement endangered him in any way. No testimony suggested that Mr. Crooks moved any great distance over the line into the emergency lane. The two officers continued to follow Mr. Crooks for a distance, and observed that he drifted over the right-hand line on two more occasions. No evidence was presented describing how far he drove over the line on these occasions, but it is clear that no other cars or pedestrians were near him on either occasion. Deputy Deutsch did not think that Mr. Crooks was intoxicated or otherwise impaired. Based on these actions, Deputy Deutsch stopped Mr. Crooks for violation of section 316.089(1). Deputy Deutsch, who happens to patrol with a drug-trained canine in his car, asked Mr. Crooks if he would consent to a search; and he consented. The search located a small quantity of marijuana. The trial court denied Crooks motion to suppress, but the Second District Court of Appeal reversed, holding that that the arresting deputy sheriff had no objective basis to stop defendant's vehicle, even though the deputy observed vehicle drive over right-hand line on edge of right lane of traffic on three occasions; movement was away from deputy's vehicle, no testimony suggested that defendant moved any great distance over line into emergency lane, no other cars or pedestrians were near defendant at the time, and the deputy did not think that defendant was intoxicated or otherwise impaired.

The opinion in Crooks has been used repeatedly by defendant's in DUI cases, to support the argument that there was no reasonable suspicion for the officer to conduct the stop. These cases are no exception, as both defendant's here similarly rely on Crooks.

However, it is important to note that the Crooks decision has been clarified. In State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999) the Second District Court of Appeal made its position clear. In Davidson, an officer saw a vehicle traveling between 40 and 48 m.p.h. on a highway with a with a maximum speed limit of 70 m.p.h. and a minimum speed limit of 40 m.p.h. The vehicle continually drifted across the lane and then jerked back in the opposite direction. The officer said he stopped the defendant because these actions were indicative of an impaired driver, and he knew something was wrong because people don't normally drive that way. The trial judge granted a motion to suppress. On appeal, the court reversed. The Davidson court relied upon the previously quoted language from DeShong[4] and Bailey[5] recognizing the legitimacy of a stop to investigate unusual driving behavior. The court distinguished Crooks based on the fact that the deputy in that case did not think the defendant was in any way impaired and the law enforcement personnel in Crooks caused the defendant to drift over the line.

As Davidson suggests, for an investigatory stop to be lawful when based on unusual driving falling short of a traffic violation, it is important for the officer to articulate both the facts and the conclusions that the officer drew from those facts. Thus, in Dobrin[6], an officer observed Dobrin driving his truck at a high rate of speed and drifting to the right and correcting himself in a quick manner on several occasions. The officer pulled Dobrin over and ticketed him for failure to maintain a single lane. The Court held the stop invalid because (1) the record did not competently or substantially support the officer's stop of Dobrin's vehicle on the basis of the failure to maintain a single lane because the facts contained in the arrest report did not state any evidence that Dobrin went beyond a single lane; (2) the record did not competently or substantially support the officer's stop of Dobrin's vehicle on the basis of speeding because there was no indication in the arrest report that Dobrin was driving in excess of the speed limit, or that the reason for the officer's stop was speeding; and (3) the record did not competently or substantially support the officer's stop of Dobrin's vehicle to determine whether Dobrin was ill, tired, or driving under the influence because the arrest report did not indicate that the reason for the stop was that officer thought Dobrin was impaired. Dobrin, 874 So.2d 1174.

As in DeShong, many such stops are in some way related to the officer's suspicion that the driver is driving while impaired by alcohol and drugs. See Carrillo v. State, 506 So. 2d 495 (Fla. 5th DCA 1987)(trooper had reasonable suspicion for a stop where the defendant was seen at 2 a.m. driving his car from the extreme right side of the road to the extreme left side of the road about five times for about a quarter of a mile); Esteen v. State, 503 So.2d 356 (Fla. 5th DCA 1987) (weaving within lane and driving slower than posted speed justified stop based on reasonable suspicion of impairment, unfitness or vehicle defects, even absent a traffic violation); Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999) (weaving several times sufficient to justify stop); Yanes v. State  877 So.2d 25, (Fla. 5 DCA 2004)( evidence that Appellant deviated from his lane by more than what was practicable was a violation of the statute, irrespective of whether anyone is endangered; and evidence was adduced that Appellant's abnormal driving caused the deputy to suspect that Appellant was impaired or otherwise unfit to drive.)

V. Analysis

On appeal, the State argues that the trial court erred in granting both Murphy's and Christiansen's motion to suppress the DUI evidence because the officers had a reasonable suspicion to conduct a traffic stop.  In interpreting the evidence in a manner most favorable to sustaining the trial court’s ruling and in applying a de novo review of the application of law to the facts, the Court finds that the trial court’s ruling in Christiansen must be sustained but that the trial court's ruling in Murphy must be reversed and remanded for findings as to the basis of the stop.

As to Christiansen, this Court finds that based on the totality of the circumstances, Officer Nohejl did not have the requisite founded suspicion of DUI to conduct a lawful traffic stop.  See Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999)(enumerating factors to be considered by the officer prior to conducting a traffic stop are: time of day, the day of the week, the location, the physical appearance of the suspect, the behavior of the suspect, the appearance and manner of operation of any vehicle involved and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge); Department of Highways Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(same). Here, the only evidence regarding the driving was that the passenger side tires went over the line twice and that appellee made a u-turn. That is not enough to create a founded suspicion.

As to Murphy, however, the record shows that the officer testified that he had training in the area of DUI's and that he attended a forty hour block reference DUI and attended Field Sobriety Test school. The record also shows that Officer Carmen testified that while following appellee for a short distance, her vehicle swerved from the slow lane she was traveling in southbound off the roadway onto the shoulder three times in a matter of approximately half of a mile. He further testified that two of the tires actually touched the grass. He proceeded to testify that that was why he pulled her over, but was prohibited from explaining his reasons further. The trial court found that because there was not probable cause for a traffic infraction arrest because the state failed to present sufficient evidence regarding the officers experience in DUI stops and investigations, the officer lacked reasonable suspicion for a stop. However, these findings are not supported by competent substantial evidence in the record. Specifically, the record reveals an adequate demonstration of the officer's ability; he testified about his experience and training. Additionally, the officer was not permitted to testify as to why he pulled over the appellant. Accordingly, this cause should be reversed and remanded for findings as to the basis of the stop.

IT IS THEREFORE ORDERED AND ADJUDGED that the judgment and sentence in State v. Christiansen, Case No: CRC04-00663CFAES is AFFIRMED;

IT IS FURTHER ORDERED AND ADJUDGED that State v. Murphy, Case No: CRC04-03064CFAES, cause is remanded for further proceedings.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of April, 2005.

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

____________________

Daniel D. Diskey

Circuit Judge

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Office of the State Attorney

James Campbell, Esq.

Attorney for Mary Eileen Murphy

Robert W. Attridge, Esq.

Attorney for Wesley John Christiansen.

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[1] The undersigned judges are not in total agreement as to the importance of establishing the officers training, experience, and so forth. However, it would appear, that the importance of specialized training, as in any case where a person is providing an opinion, becomes less as the subject matter becomes more within the realm of general knowledge. Police officers and lay witnesses have long been permitted to testify as to their observations of a defendant's acts, conduct, and appearance, and also to give an opinion on the defendant's state of impairment based on those observations. See, e.g., Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970). Objective observations based on observable signs and conditions are not classified as "scientific" and thus constitute admissible testimony. Williams v. State  710 So.2d 24, *28 -29 (Fla. 3rd DCA 1998) .

[2] Roberts vs. State, 732 So. 2d 1127 (Fla. 4th DCA 1998).

[3] Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998),

[4] State Dept of Safety and Motor Vehicles v. DeShong , 603 So. 2d 1349 (Fla. 2d DCA 1992)( (using lane as "marker" to position vehicle and slowing to 30 miles per hour sufficient to justify stop based on suspicion of impairment or defects in vehicle).

[5] Bailey v. State, 319 So. 2d 22 (Fla. 1975).

[6] Dobrin v. Dept of Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004).