Criminal County Court: CRIMINAL LAW --- Search and Seizure – Stop ---

Investigation was proper where police were informed defendant was passed out in vehicle; when they arrived headlights were on, keys in ignition, and police observed alcohol-smelling vomit around car, on car, and on defendant. Judgment and sentence affirmed. Anderson v. State, No. CRC 06-88 APANO (Fla. 6th Cir. App. Ct. December 5, 2007).

 

 

 

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

 

DEVON TODD ANDERSON

 

            Appellant,                                            

v.                                                                     Appeal No. CRC 06-88 APANO

                                                                        UCN522006AP000088XXXCR

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

Opinion filed ________________.

 

Appeal from a judgment and sentence

imposed by the Pinellas County Court

County Court Judge John D. Carballo

 

Curtis M. Crider, Esquire

Attorney for appellant

 

Jason Bard, Esquire

Assistant State Attorney

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant, Devon Anderson’s, appeal from a judgment and sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the decision of the trial court.

The defendant entered a no contest plea to DUI charges, reserving his right to appeal the denial of his motion to suppress. The defendant claims all evidence following his initial detention should be suppressed because he was improperly detained. A trial court’s determination of reasonable suspicion to conduct an investigatory stop or detention is subject to de novo review. Ornelas v. United States, 517 U.S. 690 (1996); DeLeon v. State, 700 So.2d 718 (Fla. 2d DCA 1997). “Appellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court’s application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). “A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001).

            An employee of Publix contacted the sheriff’s department and informed them  about an individual who was passed out in a vehicle in the Publix parking lot. A deputy responded to the scene and found the defendant’s vehicle parked. The windows were down, the headlights were on, the keys were in the ignition and the dome light was dimly lighted. He observed vomit on the asphalt outside the driver’s door and also on the passenger’s seat. There was a distinct odor of alcohol coming from both the vomit and defendant. The defendant was passed out behind the wheel, lying back in the driver’s seat. He had vomit on his shirt and chin. The deputy testified he was concerned for the defendant’s health. He then removed the keys from the ignition to prevent the vehicle from moving, and attempted to wake the defendant. The defendant was ultimately arrested for DUI.

            Contrary to the assertions of the defendant, this situation is not like that in Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). In Danielewicz there was no call from a citizen informant, and there was no testimony that the officer was concerned about the health of the defendant --- there being no signs of vomit about the vehicle or defendant there. The biggest difference, however, is that in the case at bar the deputy developed reasonable suspicion to believe the defendant was DUI based solely upon his observations. The deputy could see the defendant in actual physical possession of a motor vehicle and there was evidence that the defendant had consumed alcohol and was impaired. The testimony was that the keys were in the ignition, and were partly turned because the dome light was on. In addition, there was an odor of alcohol coming from the defendant which the deputy could smell because the windows were down. Moreover, there was vomit smelling of alcohol around and in the vehicle. In Danielewicz, prior to the seizure, there was no apparent evidence that the occupant of the vehicle had consumed alcohol.

            The trial court correctly denied the defendant’s motion to suppress. Therefore, the judgment and sentence is affirmed.

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

            ORDERED at Clearwater, Florida this _____ day of December, 2007.

 

 

                                                                        ______________________________

                                                                                          Linda R. Allan

                                                                                       Circuit Court Judge

 

 

                                                                        _______________________________

                                                                                          R. Timothy Peters 

                                                                                         Circuit Court Judge

 

 

                                                                        ________________________________

                                                                                           John A. Schaefer

                                                                                          Circuit Court Judge

cc:        Curtis M. Crider, Esquire

            Office of the State Attorney

            Honorable John D. Carballo