IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
STATE OF
Appellant,
v.
CULLEN SMITH, Case No: 054311CFAES
Appellee. Lower No: 05481833WTES
____________________/
On appeal from the
Honorable Robert P. Cole
Justin B. Petredis, Esq., A.S.A.
A.R. Mander, III, Esq.
ORDER AND OPINION
On January 21, 2005, appellant was arrested and charged with Driving Under the Influence. On May 20, 2005, defense counsel filed a Motion to Suppress Confessions, Statements, and Admissions, as well as a Motion to Suppress evidence, in which he argued that there was no reasonable suspicion to justify the stop. The trial court granted defendant's motion to suppress at a hearing on August 2, 2005. This Court REVERSES the trial court's order.
A
ruling on a motion to suppress presents a mixed question of law and fact. Ornelas
v.
At the motion to
suppress Deputy Shaw testified that he observed a vehicle traveling in front of
him and noticed the vehicle was exceeding the posted speed limit. When asked how he made that determination, he
testified "[w]ell, once--first by [visual] observation." He was asked, "[d]o you have any sort of
training in the detection, visually, of persons exceeding the speed
limit?" and he replied "[y]es, sir.
That's part of the requirements to be certified by the State of
On cross examination, Shaw testified that Vanderwaall, an off duty deputy, was working at Cheers that night and radioed Shaw shortly before he pulled the defendant over. Vanderwaall told Shaw that he thought he had a possible drunk driver for him. He did not say that there was a car speeding. He acknowledged that the first opportunity he would have had to see the vehicle, to determine whether it might be speeding or not, was not until he got around Vanderwaall's vehicle. Shaw was then asked "[o]kay, and so you're making this visual observation in the darkness, from behind the vehicle, in this short a distance?" and Shaw replied "[y]es, sir." Defense counsel then asked "[a]nd so what you're saying is, is as soon as you got around this vehicle you saw some [taillights] up ahead of you; and they're what, at least eight to ten car lengths ahead of you at that point, right?. . . And --and you can tell in the darkness that you thought that this vehicle was speeding; and you turned on the radar, is that right?" and Shaw responded "[y]es, sir. I've been doing this for about sixteen and half years."
On redirect, the state asked how long he visually observed the vehicle he testified "[m]aybe like four or five seconds, I don't know."
The court entered an Order on August 12, 2005, granting the defendant's motion to suppress, making the following findings;
1. Deputy Shaw testified on direct and cross that Deputy Vanderwaall had been working off duty at a bar and radioed him to say that he, Vanderwaall, had a possible drunk driver for him.
2. Deputy Shaw says he went to Chancey road and saw the vehicle in question in front of Deputy Vanderwaall's vehicle.
3. Deputy Shaw states he passed Vanderwaall and was able to visually estimate that the defendant's car was speeding and that his radar indicated that the defendant's vehicle was traveling at 51 mph in the 30 mph zone.
4. The state did not attempt to introduce any proof of the reliability or certification of Deputy Shaw's radar.
5. Deputy Shaw estimated the speed of the defendant's car as it was going away from him in the darkness.
The court found that the state "has failed to meet it's burden in showing the validity of the stop of the defendant for speeding." The trial court erred.
Section
316.1906(2),
introduction of any evidence regarding speeding violations. That section reads:
2) Evidence of the speed of a vehicle
measured by any radar speed-measuring device
shall be inadmissible in any proceeding
with respect to an alleged violation
of provisions of law regulating the lawful speed of vehicles, unless such evidence of speed is obtained by an officer who:
(a) Has satisfactorily
completed the radar training course established by the Criminal Justice Standards and Training Commission
pursuant to s. 943.17(1)(b).
(b) Has made an independent
visual determination that the vehicle is operating in excess of the applicable speed limit.
(c) Has written a citation
based on evidence obtained from radar when conditions permit the clear assignment of speed to a single vehicle.
(d) Is using radar which has
no automatic speed locks and no audio alarms, unless disconnected or deactivated.
(e) Is operating radar with
audio Doppler engaged.
(f) Is using a radar unit
which meets the minimum design criteria for such units established by the Department of Highway Safety and Motor
Vehicles.
(Emphasis added). Thus, as argued by the state, it is not necessary to meet these
conditions at a Motion to Suppress
evidence, because such a motion is not a proceeding "with respect to an
alleged violation of law regulating the lawful speed of vehicles." 316.1906(2),
Whether
or not the stop was lawful depends on whether or not the officer had reasonable or founded suspicion to stop
defendant's car for speeding. State v. Eady, 538 So. 2d 96 (
IT IS THEREFORE ORDERED that the judgment and sentence be REVERSED.
DONE
AND ORDERED in Chambers at New Port Richey,
________________________
Primary Appellate Judge
_____________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Honorable Robert P. Cole
Justin B. Petredis, Esq., A.S.A.
A.R. Mander, III, Esq.
[1] This Court recognizes that the officer's credibility may have played a part in the trial court's decision and this court will not substitute its judgment for that of the trial court on the issue of the credibility of the witnesses and the weight to be given to the evidence. This Court is only addressing the trial court's apparent belief that the arresting officer was required to lay the predicate necessary to prove the speeding occurred and/or that something more than reasonable suspicion was necessary to effectuate the stop.