County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – When defendant simply overshot the left-turn lane slightly, realized his error and made the left-turn safely, there was no justification for the officer to make the stop. Order granting motion to suppress affirmed. State v. Johnson, No. CRC 05-62 APANO, (Fla. 6th Cir.Ap.Ct. May 19, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL

CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

 

STATE OF FLORIDA

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-62 APANO

UCN522005AP000062XXXXCR

DAVID SIDNEY JOHNSON, JR.

            Appellee.

________________________________/

 

Opinion filed _______________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge William Overton

 

John Mulvihill, Esq.

Assistant State Attorney

 

Steven Halim, 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 testimony reveals that at 2:15 A.M. the police observed the defendant, driving a black corvette with chrome rims, make a left-hand U-turn. Instead of being made from the designated left-turn lane, the turn was made from the center lane. The defendant turned through the left lane and the left turning lane. The turn was made at about 15 to 20 miles per hour. Once the turn was completed, the defendant then rapidly accelerated and “broke traction with its rear tires briefly.” No other traffic was in the area. The police made a traffic stop, cited the defendant for failure to use the designated lane, and ultimately arrested him for DUI. The defendant filed a motion to suppress, and the trial court granted the motion.

            The State asserts that the trial court erred in granting the defendant’s motion to suppress. It argues the stop was justified because the testimony showed that the defendant committed a traffic offense, or that it showed his driving was sufficiently erratic to justify a traffic stop. “[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, 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.” Pagan v. State, 830 So.2d 792 (Fla. 2002).  Whether or not the application of the law to the facts establishes an adequate basis for probable cause, however, is subject to a de novo standard of review. See Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003).

The State claims the defendant violated §316.089(3), Fla. Stat. (2005) by not using the proper lane in which to make his U-turn. There was, however, no traffic affected by the defendant’s U-turn. It appears that the defendant, in attempting to turn left in the dark, simply overshot the left-turn lane a little bit, realized his error, and then made the lane changes safely. There was no clear-cut violation of the statute under these circumstances. Therefore, the police were not justified in stopping the defendant on this ground.

As for the State’s second argument, this Court rules that the driving was not erratic. As the trial court found, it was only a one-time failure to initially use the designated lane. Other than the belated U-turn, there was no improper driving observed.

 The rapid acceleration after the U-turn does not seem to have been a factor in the officer’s decision to stop the defendant. There was no testimony that the defendant was speeding or that he made an improper U-turn. In addition, there was no testimony that the defendant might have been impaired, or ill, or tired, or that the motor vehicle may have had mechanical problems. This was a one-time event and therefore insufficient to establish an improper driving pattern. In Nicholas, previously cited, the appellate court ruled that the defendant’s turn from the wrong lane did not amount to erratic driving that would give rise to the probable cause required to justify a stop. Accordingly, the police were not justified in stopping the defendant because his driving was not erratic.

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, 2006.

 

                                                                                    ___________________________

                                                                                                J. Thomas McGrady

                                                                                                Circuit Judge

 

 

 

                                                                                    _____________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Judge

 

 

           

                                                                                    _____________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

cc:        State Attorney

 

            Steven Halim, Esq.

 

            Judge Overton