County Criminal Court: CRIMINAL LAW – DUI –
motion to suppress - trial court properly granted motion to suppress-while
trial court’s evaluation of the facts
shown on the video differs from the officer’s evaluation, appellate court must uphold
the trial court’s findings of fact if
there is competent, substantial evidence to support those findings-Order
affirmed. State v. Jenkins, III,
No. CRC 08-02767CFAES (Fla. 6th Cir.
Ct. January 28, 2009).
NOT FINAL
UNTIL TIME EXPIRES FOR REHEARING
AND, IF
FILED, DETERMINED
IN THE
CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR
PASCO COUNTY, FLORIDA
APPELLATE
DIVISION
STATE
OF FLORIDA,
Appellant,
v. CASE
NO.08-02767-CFAES
UCN: 512008CF002767A000ES
WILLIE
Y. JENKINS, III,
Appellee.
_________________________________/
ORDER
This
is an appeal from a County Court order granting the Defendant’s Motion to
Suppress All Physical Evidence and Admissions Obtained Illegally. The facts of the case involve a traffic stop
by Deputy Donald Shaw of the Pasco County Sheriff’s office on September 29,
2007 at approximately 1:59 a.m. At the
time, Deputy Shaw was driving a marked cruiser with no lights on top of the car
and had been working for the Pasco County Sheriff’s office for between 13 and
14 years, with a total of 19 years in law enforcement. He had attended several hundred hours of DUI
training and was a DUI instructor. He
estimated that he had over 500 DUI arrests and had conducted 1000 DUI
investigations. While traveling
northbound on US 41, Deputy Shaw first observed the Defendant when the
Defendant made a legal U-turn on US 41 and also began driving northbound. After observing the Defendant make the legal
U-turn, Deputy Shaw observed the Defendant “moving around a little bit in his
lane”, so Deputy Shaw fell in behind the Defendant’s truck. As Deputy Shaw followed the Defendant, the
Defendant turned right onto State Road 54 and continued eastbound. After making the turn, the Defendant
initially started out in the right-hand lane, but then move to the center lane
(subsequently, Deputy Shaw testified that the Defendant made a “wide” right
turn at this point, in which he ended up in the center lane, rather than the
right-hand lane) and, as Deputy Shaw continued to follow him, the Defendant
moved to the left-hand or “median” lane.
Ultimately, Deputy Shaw describes the Defendant as rubbing “his tires up
against the actual concrete median” after having made a “real hard left hand
swerve”. Deputy Shaw testified that, after
the Defendant made contact with the curb, he [the Defendant] “jerked it back
away from it”, but did not lose control of his vehicle or hit the white line on
the middle lane of the road. Although
the court’s review of the tape from Deputy Shaw’s dashboard camera reveals that
the camera appears to have been running from Deputy Shaw’s initial sighting of
the Defendant, Deputy Shaw testified that he actually “activated” the camera at
about the time the Defendant rubbed his tires against the median. In any event, the total distance that Deputy
Shaw followed the Defendant was approximately a mile to a mile and a half. Deputy Shaw continued to describe the
Defendant as “still just kind of drifting, rocking in his lane a little
bit”. Deputy Shaw testified that it is
“not normal for, you know, someone to just continually move back and forth from
side to side, even within their own lane”.
Although Deputy Shaw testified that, based on his observations, “it was
obvious that there was either something physically wrong with him [the
Defendant] or the vehicle was having an issue”, he also testified that he
believed that the Defendant may have been “…impaired. That’s why I continued to follow him. And then I observed—another key indicator of
someone possibly being impaired or, you know, or sick or what have you, because
he made an abrupt move to the left, or a swerve, if you want to use that wordage,
or he actually had his tires rub up against the curb, and that’s indicative of
somebody that’s not in complete control of their vehicle”. Deputy Shaw acknowledged that it would not
surprise him to learn that individuals sometimes get nervous when they observe
an officer following behind them at approximately 2 o’clock in the
morning. Deputy Shaw also acknowledged
that there were no other vehicles that were in close proximity to the Defendant
during the time that he observed the Defendant’s driving and that he did not
stop the Defendant for Failure to Maintain a Single Lane.
The
Defendant also testified. Although he
denied making a U-turn, as described by Deputy Shaw, he did acknowledge that he
was coming out of a parking lot and made a turn so that he was headed
northbound on US 41. The Defendant
testified that he almost immediately saw the law enforcement officer slow down
and fall in behind him. The Defendant
indicates that this made him nervous and he began to pay a bit more attention
to the officer than to his driving. The
Defendant denies bumping the curb bordering the median, but does acknowledge
that he came close to it and that he corrected back into his lane. While the defendant acknowledges some
familiarity with the concept of being drunk, he denies being drunk or impaired
on the night in question. At most, he
acknowledges having consumed a “couple of beers”.
The learned County Court Judge was present as the video was played during the hearing and announced that, while he didn’t think the Defendant’s driving was “that bad”, he intended to look at it again. Likewise, this appellate panel has reviewed the video that was placed in evidence. This panel has no intention of substituting its evaluation of the testimony and evidence for that of Judge Cole and, while it is in as good a position to evaluate the video as Judge Cole was, this panel has no disagreement with Judge Cole’s evaluation of the video. Judge Cole understandably placed considerable weight upon what he saw on the video and the video clearly supports his ruling. While Judge Cole’s evaluation of the facts shown on the video differs from the officer’s evaluation, it is this court’s job to uphold Judge Cole’s findings of fact if there is competent, substantial evidence to support those findings. Connor v. State, 803 So.2d 598 (Fla. 2001). We find that there is competent, substantial evidence to support Judge Cole’s order findings. Frankly, there are portions of the video that simply do not appear to support the officer’s testimony, i.e., the officer’s testimony that the rubbing against or contact with the curbing on the median was preceded by a “real hard left hand swerve” and followed by the defendant’s action in jerking his vehicle back away from the curb. The court hastens to add that the court is not impugning the officer’s honesty-only noting that the officer’s objectivity may be in question. These are factual determinations by Judge Cole and, in our view, accurate factual determinations. Under the circumstances, Judge Cole’s granting the Defendant’s Motion to Suppress is AFFIRMED.
DONE AND ORDERED in chambers in New Port Richey, Pasco
County, Florida this ____ day of January, 2009.
__________________
Stanley
R. Mills
Primary Appellate Judge
__________________
W.
Lowell Bray, Jr.
Appellate
Judge
__________________
Daniel
Diskey
Appellate
Judge
Copies furnished to:
Kenneth
V. Compton, Esq., Assistant State Attorney
Sean
B. Kelley, Esq.