County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – The trial court improperly granted Appellee’s motion to suppress when his erratic driving gave the officer the founded suspicion necessary to stop Appellee.  Reversed.  State v. Ellenberg, No. CRC1000444CFAES, (Fla. 6th Cir.App.Ct. January 4, 2011).

 

 

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 PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                        Appellant,

                                                                        UCN:              512010CF000444A000ES

v.                                                                     Case No:       CRC1000444CFAES

                                                                        Lower No:    09-4164XCJTES

 

MICHAEL JAMES ELLENBERG,                                               

                        Appellee.                                                      

______________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole  

 

Kenneth V. Compton, A.S.A. 

for Appellant

 

Todd Thurow, A.P.D.   

for Appellee

 

 

 

ORDER AND OPINION

            The State appeals the trial court’s order granting Appellee’s motion to suppress.  The sole issue on appeal is whether Appellee’s driving gave the officer the founded suspicion necessary to stop Appellee.  We find that it did.  This Court reverses the trial court’s order as set forth below.

 

 

 

FACTUAL BACKGROUND

            Deputy Tom Stubblefield observed Appellee around 11 o’clock at night on May 17, 2009.  Appellee was in the far right, westbound lane on State Road 54 driving a silver four-door car.  Appellee’s car was last in line; there were no cars next to or ahead of him, but in front.  Appellee repeatedly drifted to one side, then swerved back into his lane.  Deputy Stubblefield described it as a “dramatic crossover,” as half of Appellee’s vehicle drifted to the right side of the fog line three times.  Appellee also drifted to the left and crossed over that line approximately two times, although it was not as far as on the right side.  It was less than a foot, but Deputy Stubblefield testified that the left tires definitely crossed into the left lane. Appellee also rode the line.  These observations were made in about 1000 feet of travel before Appellee made a right turn. 

Deputy Stubblefield followed directly behind Appellant in his unmarked vehicle.  Appellee remained at a stop sign for ten seconds, which Deputy Stubblefield thought was “an extraordinary amount of time being that there were no cars to wait for.”  Appellee made a left turn onto Mentmore Boulevard.  Appellee drifted to the left where he rode the center line for several seconds, crossed it by less than a foot, and then moved back into the lane.  These observations covered a distance of about a quarter of a mile.  Based on his training and experience, Deputy Stubblefield testified that Appellee’s irregular driving was dangerous, and he needed to rule out a mechanical problem, medical issue, or other impairment.  Therefore, Deputy Stubblefield stopped Appellee’s car. 

That night, Appellee was issued a traffic citation for driving while under the influence.  Appellee filed a motion to suppress contending that Deputy Stubblefield did not have reasonable suspicion to conduct the traffic stop.  On January 14, 2010, after a hearing, the trial court entered an order granting Appellee’s motion to suppress finding Appellee’s driving “not erratic driving that would justify the stop.”  The State filed a timely notice of appeal. 

 

 

              

LAW AND ANALYSIS

A trial court's ruling on a motion to suppress presents a mixed question of law and fact. Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).  A trial court's ruling on a motion to suppress is presumptively correct and will be upheld if supported by the record.  Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007); State v. Shuttleworth, 927 So. 2d 975, 978 (Fla. 2d DCA 2006).  An appellate court is bound by the lower court's factual findings if they are supported by competent, substantial evidence. Cuervo, at 160.  However, the trial court's application of the law to the facts is reviewed under the de novo standard.  Williams v. State, 769 So. 2d 404, 406 (Fla. 2d DCA 2000).

The trial court improperly granted Appellee’s motion to suppress since Appellee’s erratic driving provided Deputy Stubblefield with the founded suspicion necessary to stop Appellee to determine whether he was ill, tired, or impaired.  To effectuate a valid stop, the officer needed only have a founded suspicion of criminal activity.  State v. Davidson, 744 So. 2d  1180 (Fla. 2d DCA 1999).  A legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether the driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.  DHSMV v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992).

In this case, Appellee’s erratic driving provided the officer with founded suspicion necessary to conduct a traffic stop.  Deputy Stubblefield observed Appellee dramatically cross the fog line three times on the right side of the road where his car was halfway out of the lane.  He also saw Appellee drift to the left where his tires twice crossed over the line by less than a foot.  These observations were all within 1000 feet.  Next, Deputy Stubblefield watched Appellee make a wide right turn onto another road.  Appellee then stopped at a stop sign for ten seconds, which was lengthy considering there were no other vehicles.  Finally, Deputy Stubblefield viewed Appellee drive on Mentmore Boulevard where he primarily drifted to the left and would ride the center line with his left tire for several seconds and then cross the line by less than one foot.  These observations covered a distance of about a quarter of a mile.  Appellee’s abnormal driving provided the deputy with a well-founded suspicion that Appellee was impaired or otherwise unfit to drive.  Based on a totality of the circumstances and the deputy’s training and experience, Deputy Stubblefield had the founded suspicion necessary to stop Appellee.  The motion to suppress should have been denied.  Therefore, it is

ORDERED that the trial court’s order granting Appellee’s motion to suppress is hereby REVERSED and the case REMANDED for proceedings consistent with this opinion.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 4th day of January 2011.

            Original order entered on January 4, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.