Criminal County Court: CRIMINAL LAW --- Search and Seizure – Stop --- trial court erred in finding that a citizen encounter can only be based upon a well founded suspicion-officer in present case testified he was worried about driver’s health-lower court made no findings regarding officer’s concerns-reversed and remanded for further consideration. Reversed and remanded. State v. Avery, CRC0400140CFAES (Fla. 6th Cir. App. Ct.  September 4, 2008).

 

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.                                                                                 CASE NO: 04-00140CFAES

 

JONATHAN AVERY,

Appellee,

_____________________/

 

 

Bryan Sarabia, Esq. APD

Attorney for Appellant.

 

Dale Brewster, Esq.

Attorney for Appellee.

 

ORDER AND OPINION

 

THIS MATTER is before the Court on the State’s appeal of the trial court's order granting the defendant/appellee’s Motion to Suppress. After reviewing the briefs and record, this Court REVERSES the trial court’s decision.

The defendant/appellee was charged with DUI and filed a motion to suppress based on a lack of reasonable suspicion to conduct a traffic stop. At the motion to suppress Officer Kirkpatrick testified that, while patrolling Cavalier Park at 2:40am , he noticed a black Chevy sitting in one of the parking spots directly next to the park, which is the city park parking lot. The park is closed at night, but defendant was not in the parking lot, and was not in an area that’s prohibited from parking at night.  He testified that the motor was running.  Kirkpatrick explained that he drove up close to the vehicle, towards the driver’s side. He was approximately ten feet away. He shined his headlights on the vehicle because he noticed it was running. He noticed a white male, being the defendant, sleeping in the vehicle. He appeared to be passed out.  He testified that he wasn’t really sure at the time. He noticed his head on the steering wheel. He explained that defendant’s arms were down to the side, his head was laying on the steering wheel, leaning forward. The vehicle was running and he could see the mist coming out of the exhaust. He stated that when he approached the vehicle he noticed it was in gear, in drive, to drive forward. He testified that his concern at the time was to check the welfare of the driver.  The officer testified that he made contact with the defendant, but the defendant did not react in any way; he made no movement at all. So he opened the door because the window was up.

The trial court granted the Motion to Suppress, finding that the initial encounter was an investigatory stop and that the officer did not have reason to believe that the defendant had committed or was about to commit a criminal activity. The court specifically cited to Danielewicz v. State, 730 So. 2d363 (Fla. 2d DCA 1999). 

We reverse the lower court’s order granting the appellee’s Motion to Suppress evidence.  The lower court’s order is apparently based on the proposition that a citizen encounter of the type involved in the instant case can only be based upon a well founded suspicion that the appellee had committed, was committing or was about to commit a crime.  While this was, in fact, the holding in Danielewicz, it should be noted that the court specifically pointed to the fact that the officer involved in Danielewicz “…did not testify that he was concerned for the driver's personal health”, whereas, the officer in the instant case testified that he was concerned for the health of the appellee.  It is clear that a citizen encounter may also be justified by legitimate concerns for the driver’s health.  State v. Baez, 894 So.2d 115 (Fla. 2004).  Given the fact that the lower court made no findings regarding the officer’s concerns for the appellee’s health and well-being and appears to have been operating under the belief that only a well founded suspicion of criminal activity would justify the contact described in this case, we have no alternative but to reverse and remand for further consideration of the alternative basis for a citizen encounter.  Of course, the lower court is free to make whatever findings may be supported by the evidence, based upon the lower court’s determinations of credibility and any other appropriate factors.  It is therefore,

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.

            DONE AND ORDERED in chambers in New Port Richey, Pasco County, Florida this ____ day of August, 2008.

 

 

                                                                                                __________________

                                                                                                W. Lowell Bray, Jr.

Primary Appellate Judge

 

                                                                                                __________________

                                                                                                Daniel Diskey

                                                                                                Appellate Judge

 

                                                                                                __________________

                                                                                                STANLEY R. MILLS

                                                                                                Appellate Judge

                                                                                               

 

Copies furnished to:

Brian Sarabia, Esq., ASA

Dale Brewster, Esq.