County Criminal Court: CRIMINAL LAW – DUI – traffic stop – The court found that the state did not meet its burden in proving that the investigatory stop was justified; and also found that the weaving within the lane was not coupled with any other suspicious activity; when sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility.” . Affirmed. State v. Patton, Case 0704819CFAWS, (Fla. 6th Cir. App. Ct. February 1, 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. Appeal No: 0704819CFAWS

Lower No: 07851MMAWS

MICHAEL SIMON PATTON,

Appellee.

_________________________/

County Judge Candy VanDercar

Neil P. O’Brien, Esq. A.S.A.

Attorney for Appellant

Randall C. Grantham, Esq.

Attorney for Appellee

ORDER AND OPINION

Appellee was charged with Driving Under the Influence and Driving with an Expired Drivers License. Appellee was also charged with Possession of Marijuana, Possession of Drug Paraphernalia, and Possession of Drugs without Prescription. The appellee filed a motion to suppress, and after an evidentiary hearing, the trial judge granted appelleee’s motion. This Court affirms the decision of the trial court.

At the suppression hearing, Deputy Bell testified that he received a report from an anonymous citizen in regards to a driver on the roadway who appeared to have problems operating his motor vehicle. He testified that the tip came in that it was in the area of State Road 54 around Little Road and that is where he responded to. The tip indicated that it was a Ford SUV-type vehicle. Bell testified that he did come in contact with the vehicle near the intersection of State Road 54 and Little Road. He explained that he observed it going westbound on State Road 54, with its right blinker on, and he continued following it. Bell then explained that he continued to follow the vehicle and the vehicle shut its blinker off; he started to record and proceeded from there.

Bell testified that he observed the vehicle weaving within the lane going back and forth on the inner portion of the lane. He stated that at one point, he observed the vehicle go to the left outside of his own lane and then back into the lady that was following him, which was the far right lane. He was then asked: “Okay, and [in the] absence of an anonymous tip or BOLO in this case, [would] this driving pattern raise you any concerns if you were just patrolling as a normal deputy.” He replied: “Absolutely. I was concerned whether or not the driver was impaired or whether or not he had a medical issue and why he couldn’t maintain control of his vehicle.” Bell explained that he did conduct a traffic stop shortly after the vehicle left his own lane and went into the adjacent lane. He activated his lights and pulled the vehicle over at the intersection of Crescent Moon and State Road 54. The State then presented a video of appellee’s driving which had been made by Deputy Bell. Bell explained that his car is equipped with a video camera, and “partially through following the vehicle” he activated the video camera.

The trial court granted the Motion to Suppress, finding that “the magnitude of the ‘weaving’ as seen on the video, was of a much lesser degree, and of a lesser frequency, than that described in the Officer’s testimony. The defendant’s ‘weaving’ was gradual, occurred only in three or four times within 40 seconds, and in no way affected the safety and driving of other motorists.” The court found that “the defendant’s driving was not of a type that would provide the ‘founded suspicion’ necessary to cause one to believe that the defendant was driving under the influence, having vehicle malfunctions or having a possible health issue.” The court found that the state did not meet its burden in proving that the investigatory stop was justified. The court also found that the weaving within the lane was not coupled with any other suspicious activity, such as a variation in the speed of the vehicle.

However, during his testimony, Deputy Bell explained that there was a portion that wasn’t on video in which appellant had his blinker on before he could get his camera to activate. He also stated that “the same driving patterns that [he] observed when he had his blinker on were evidence in the video, they were weaving within his lane.” He further explained, that before the video appellee was actually to the inside of the fog line on two occasions. He testified that when he went on the outside of his lane, there was other traffic in danger and that is when he deemed that there was a problem whether it be medical or other. He testified that when he was crossing into that lane, there was other traffic affected by that move. The county court chose to disregard the officer’s testimony. This court finds that the trial court did not error.

When sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998), cert. denied, 526 U.S. 1102, 119 S.Ct. 1583, 143 L.Ed.2d 677 (1999). Thus, so long as its decisions are supported by competent, substantial evidence, an appellate court will not substitute its judgment for that of the trial court on the credibility of the witnesses and the weight to be given to the evidence. Id. The circuit court, sitting in its appellate capacity, cannot reweigh the evidence and choose to believe a state witness which the county court chose not to believe. Sunby v. State, 845 So. 2d 1006 (Fla. 5^th DCA 2003). Therefore, it is,

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

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January ____, 2008.

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

____________________

Daniel D. Diskey

Circuit Judge

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Neil P. O’Brien, Esq. A.S.A

Randall C. Grantham, Esq.

County Court Judges