County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Investigation was proper where police discovered defendant parked in emergency lane of I-275 with car running and defendant passed out behind wheel. Situation was either emergency or illegal parking. Judgment and sentence affirmed. Falvo v. State, No. CRC 06-74 APANO (Fla. 6th Cir.App.Ct. January 4, 2008).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

JAMES SANTO FALVO, JR.

 

            Appellant,        

                                   

v.                                                                     Appeal No. CRC 06-74 APANO

                                                                        UCN522006AP000074XXXCR

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

 

Opinion filed ________________.

 

Appeal from a judgment and sentence

imposed by the Pinellas County Court

County Court Judge John Carassas

 

J. Kevin Hayslett, Esquire

Attorney for appellant

 

C. Marie King, Esquire

Assistant State Attorney

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the defendant, James Santo Falvo, Jr;s, appeal from a judgment and sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The defendant entered a no contest plea to DUI charges. He reserved the right to appeal the denial of his motion to suppress. He claims the initial stop was improper.

            At approximately 6 A.M. the Florida Highway Patrol received information that a car was stopped on the shoulder/emergency lane of Interstate 275 near an exit ramp, with the driver passed out behind the wheel. When the trooper arrived on the scene it was still dark. The trooper activated his lights, pulled behind the defendant’s vehicle, and got out of his vehicle to investigate. He found the defendant’s car was running, and the defendant appeared to be passed out behind the driver’s wheel. The car had a flat tire. A couple of minutes later, another trooper arrived. At this point the defendant was apparently still passed out, with his head actually on the steering wheel. The two troopers attempted to awaken the defendant by banging on the driver’s side window several times. The troopers did this for a while, but the defendant failed to awaken. Concerned for the defendant’s safety, the troopers opened the car door. It took some more time for the troopers to awaken the defendant. They had to raise their voices, grab his arm, and vigorously shake him. As soon as the troopers opened the door, they smelled alcohol. The defendant was ultimately arrested for DUI.

            The defendant claims that the troopers had no reason to approach him. There was, however, testimony from the troopers that a major part of their job entails stopping at disabled vehicles on the Interstate to see if they need assistance. And the troopers noted that the defendant’s car had a flat tire. Moreover, as noted by one of the troopers, it is illegal to park on an Interstate --- except, as pointed out by the defendant in his brief, for emergency purposes. This is an accurate statement of the law. See §316.1945(1)(a)(11), Fla. Stat. (2006). Even in the defendant’s assessment of the situation then, he was either illegally parked or he was having some type of emergency. Either way, the troopers were justified in stopping to investigate. In fact, the troopers would have been justified in investigating the situation even if this were not on the Interstate. See Vitale v. State, 946 So.2d 1220 (Fla. 4th DCA 2007) (excessive slumping of defendant over wheel in parked vehicle with its engine running was sufficient to justify stop).

            The defendant faults one of the troopers for activating his lights and parking his vehicle behind him. Although this argument does not need to be addressed given this Court’s decision in the previous paragraph, the argument will be briefly addressed. The defendant’s claim has no merit based upon this Court’s decision in Roosa v. State, No. CRC 06-50 APANO, (Fla. 6th Cir.App.Ct. June 15, 2007). In Roosa, this Court ruled that law enforcement’s act of parking behind a defendant who is asleep or passed out is not a stop for purposes of the Fourth Amendment because the defendant is completely unaware that he is being stopped. Similarly, law enforcement’s act of activating lights is not a stop for purposes of the Fourth Amendment when the defendant is unaware that lights have been activated. Moreover, the troopers testified that for safety purposes it is standard operating procedure to activate emergency lights when they park behind a disabled vehicle on the Interstate.

            Next, the defendant contends the troopers were at fault for opening his car door.

It is unclear, however, exactly what the defendant expected the troopers to do. They tried repeatedly to awaken him, but were unsuccessful. Leaving him there to “sleep” while on the Interstate, in the dark, with the car running, would have been negligent --- to both the defendant and other motorists.  Moreover, the troopers were concerned that he might be ill because he could not awaken despite their repeated efforts. Under these circumstances, the troopers were correct to open the car door and attempt to awaken the defendant. To expect them to do otherwise would be unreasonable. In addition, as this Court has previously ruled, the troopers had ample justification to investigate the matter because the defendant was either illegally parked or involved in an emergency situation. The trial court properly denied the defendant’s motion to suppress.

            IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

            ORDERED at Clearwater, Florida this _____ day of January, 2008.

 

 

                                                                        ______________________________

                                                                                          Linda R. Allan

                                                                                       Circuit Court Judge

 

 

 

                                                                        _______________________________

                                                                                          R. Timothy Peters 

                                                                                         Circuit Court Judge

 

 

 

                                                                        ________________________________

                                                                                           John A. Schaefer

                                                                                          Circuit Court Judge

cc:        J. Kevin Hayslett, Esquire

 

            Office of the State Attorney

 

            Honorable John Carassas