|Actual Physical Control|
DUI, Probable Cause
Thursday, April 06, 2017
Deputy approaches legally parked car
Makes an approach to vehicle
Second approach to vehicle
Deputy parks patrol car behind suspect
Driver seen with GPS on dash
DUI cop has a "hunch" driver is DUI
Court found insufficient basis for a DUI investigation.
One commentator has observed, "Deputy had legitimate reason to pull alongside defendant's vehicle, which was stopped on roadside at night in isolated location, to conduct wellness check -- Fact that deputy shone flashlight into vehicle and told defendant to roll down window did not convert encounter into investigatory stop -- Where deputy saw that defendant was alert and conscious and defendant responded to inquiry about his well-being, deputy's subsequent actions of parking patrol vehicle behind defendant's vehicle with lights activated and directing defendant to turn off vehicle and provide identification was unlawful investigatory stop -- Motion to suppress is granted." 24 Fla. L. Weekly Supp. 829a
"In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992)."
"Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant's safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy's view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired."
"[T]he second approach (by parking behind the Defendant, walking up to the driver's door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court's conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop."
"Based on the circumstances and the case law, IT IS ORDERED AND ADJUDGED that the Defendant's Motion to Suppress is GRANTED."
STATE OF FLORIDA, Plaintiff, vs. ROBERT CODY NANCARROW Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-301820-MMDB, Division 80. October 16, 2016. Bryan A. Feigenbaum, Judge. Counsel: Andrew Draper, Assistant State Attorney, for Plaintiff. G. Kipling Miller, Koleilat & Miller, for Defendant.
ORDER GRANTING DEFENDANT'S
MOTION TO SUPPRESS
THIS CAUSE came before the Court on September 14, 2016 for a hearing on Defendant's Motion to Suppress Evidence pursuant to Rule 3.190 Fla. R. Crim. P.; the Fourth and Fourteenth Amendment of the United States Constitution; and Article 1, Section 12 of the Florida Constitution. The Court, having taken notice of the court file, having listened to the testimony of the witnesses, and having considered the arguments from counsel, makes the following findings upon which it enters this Order:
On the late evening of February 14, 2016, around 11 p.m., Deputy Woell of the Volusia County Sheriff's Office was driving westbound on the 1800 block of Taylor Road. This is a dark area in unincorporated Volusia County; there are no businesses or private homes alongside the road and there are no streetlights around.
There is a long bend in this stretch of road and as Dep. Woell was following a line of two or three cars near this curve, one car pulled completely off the road and onto the grassy shoulder. There was no other abnormal driving pattern and this maneuver did not affect the other vehicles. There was no testimony that any of the other vehicles had to brake or swerve.
Dep. Woell pulled alongside the stopped car, between the wood line and the passenger side of the car. He did not turn on his police siren or any flashing lights and did not get on a public address system. There was only one occupant, the driver, who turned out to be the Defendant. Dep. Woell said he pulled over out of a concern for the motorist to make sure everything was all right.
According to Dep. Woell, as he looked over at the Defendant, the Defendant was just staring straight ahead. The Deputy thought it unusual that a driver would not acknowledge his presence, seeing as how he was in a marked police car, so he pointed a flashlight into the car. At that time, the Defendant rolled down the passenger's side window and stared at the police officer. Dep. Woell asked if he was okay and he claimed the Defendant looked down to the passenger's side floorboard area and said something incoherent. Dep. Woell noted that the Defendant was alert, conscious, and was not slumped over and the Deputy made no mention of seeing any visible injury. On cross-examination, Dep. Woell also testified he saw that the Defendant had bloodshot eyes and that he had a hunch the Defendant might be impaired. He conceded that there were no other signs of impairment.
In order to explain his subsequent actions, Dep. Woell claimed that his original concerns for the driver had not dissipated. Dep. Woell thought, without clearly articulating why, that the Defendant was acting in an abnormal manner. He mentioned several scenarios he had been involved in, including situations where a driver was having a panic attack, an adverse reaction to medication, or a medical emergency such as a stroke, but never linked any prior experience with this particular driver's behavior.
The Defendant testified that he pulled off the road since he was lost. He was staring at the UPS navigation system set up in the middle of his dashboard when a car pulled alongside him and someone shined a flashlight into his car and yelled for him to roll down his window. Once he complied, he was asked if he was okay and he replied that he was fine. He surmises he did not say it loud enough to be clearly heard.
Dep. Woell decided to put his vehicle in reverse and now park behind the Defendant's car. He did not put on any takedown or flashing lights, but did turn on rear flashing blue lights to warn other traffic of his presence and they most likely would have been noticeable by the Defendant on this dark road. As the Deputy approached the driver's side window, the window was already rolled down. Dep. Woell asked the Defendant to turn off his car and to provide his driver's license, vehicle registration, and proof of insurance. Dep. Woell said he began noticing several signs of impairment including the odor of alcohol, glassy eyes, and slurred speech. The Defendant had a great deal of difficulty in finding his driver's license. He claimed he could not find his wallet three times before realizing he had his wallet on him.
The Deputy returned to his own vehicle and began running the information, including performing a warrants check. According to the police reports, the first time of contact with the driver was at 11:10 p.m. Having now seen signs of impairment which led him to believe a DUI investigation was appropriate, Dep. Woell called for back-up at 11:28 p.m. The shift supervisor, Sgt. Amendolare, arrived about 10 minutes later, at 11:39 p.m., and the DUI investigation began.
Dep. Woell had the experience and background to have started the DUI investigation on his own, but testified several factors led him to call for assistance for safety reasons: the dark area where the two vehicles were parked and the bend in the road next to where they were located; the lack of a flat surface to conduct field sobriety exercises [FSEs] except for the road itself since the grassy shoulder was sloped downward; the need for another police car to block traffic if they were going to do FSEs at the scene; and the relative size of the Defendant compared to Dep. Woell.
The defense argues that there was an improper seizure along the side of the road first by shining the flashlight into the Defendant's car and then by parking behind the car and approaching the driver's side window and making direct commands. Secondly, the defense argues that even if there was a valid stop, there was an unlawful detention given the time between the first contact and when the DUI investigation began, around 28 minutes later.
The State initially argued that the defense did not present evidence to show standing and that they did not meet their initial burden of proof under Florida Rule of Criminal Procedure 3.190 (g)(3) which requires, in a motion to suppress, “. . . the defendant shall present evidence supporting the defendant's position and the state may offer rebuttal evidence.”
The Court took judicial notice of the court file and the allegations in the motion to suppress to find that there was no search warrant issued in this case. See Fla. Stat. § 90.202(6) (court may take judicial notice of the court file). Once that finding is made, the burden is the on the prosecution to prove the validity of the police's actions under the Fourth Amendment. See State v. Hinton, 305 So. 2d 804 (4th DCA 1975); State v. Schubert, 23 Fla. L. Weekly Supp. 782a (Fla. 17th Jud. Cir., Broward Co. Ct., Dec. 12, 2015); and State v. Dawkins, Donaldson, et al, 20 Fla. L. Weekly Supp. 170a (Fla. 4th Jud. Cir., Duval Co. Ct., Oct. 23, 2012).
All warrantless searches “are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The burden is on the State to prove the validity of a search by clear and convincing evidence. State v. Thompson, 72 So. 3d 245 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2236a].
Did Dep. Woell make proper initial contact with the Defendant and, if that was characterized as an encounter, when did that contact change from an encounter to an investigatory stop? Was there a legitimate reason for that change in status at the time it became an investigatory stop?
The Florida Supreme Court described three distinct types of police-citizen contacts and they are often fluid situations. “The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The second level is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, Id. at 186. The third level “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.
The fact that Dep. Woell pulled alongside the Defendant's parked car did not automatically create a traffic stop. See State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D506b] and State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994). He did not use lights or siren and in no manner direct the Defendant to pull over.
In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).
Moreover, a police officer has a responsibility to make a well-being check if there is a reason to be concerned for the safety of a citizen, whether they are in a car or not. “It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications.” Dermio v. State, 112 So. 3d 551, 555 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D776a]. See also Blice v. State, 825 So. 2d 447, 449 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1705a] (“Not knowing whether he was ill, intoxicated, or merely asleep, the officers were duty-bound to investigate and to render assistance if needed. To do otherwise would be a dereliction of their duty.”); Gentles v. State, 50 So. 3d 1192, 1198-9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2900a] (“In keeping with such community caretaking responsibilities, [an officer] could properly check the defendant's status and condition to determine whether he needed any assistance or aid. This type of limited contact has been deemed a reasonable and prudent exercise of an officer's duty to protect the safety of citizens.”, citing to Lightbourne v. State, 438 So. 2d 380, 388 (Fla. 1983)); Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D949b]; Vitale v. State, 946 So. 2d 1220, 1221 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D164a] (“[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid . . . .”, citing to Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); and State v. Sooy, 13 Fla. L. Weekly Supp. 997b (Fla. 7th Jud. Cir., Volusia Cty. Ct., Aug. 3, 2006).
The facts in the instant case, like the fact patterns in Greider, Gentles, and Dermio, show an encounter continuum between an officer and a defendant. Given the time of night and the isolated location where the Defendant pulled off the road, Dep. Woell had a legitimate reason, if not a duty, to pull alongside the Defendant and make sure everything was all right. A wide gamut of reasons from the minor to the serious could be involved when a driver pulls off the road: mechanical problems with the vehicle, a medical emergency, wanting to take or make a phone call or respond to a text, a lost contact lens, or being lost and wanting to get one's bearings are just a few of the possibilities.
Shining a flashlight into the vehicle or even telling the Defendant to roll down the window did not necessarily convert the initial encounter into an investigatory stop. See Dermio, id; Wimbush, id.; State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1289b]; Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2510a]; Pacheco v. State, 20 Fla. L. Weekly Supp. 255a (Fla. 17th Jud. Cir. Ct., Nov. 9, 2012); and State v. Evans, 21 Fla. L. Weekly Supp. 451a (Fla. 18th Jud. Cir., Brevard Cty. Ct., Jan. 28, 2014).
Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant's safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy's view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired.
The State relied on Dermio, id., but there are many distinguishing factors that led the Second DCA to find that opening the driver's door in that case did not transform that encounter into a stop. The driver/defendant in that case was parked in a bar parking lot at 3:30 a.m. with the engine running and the lights on. The driver appeared to be asleep and was only awakened by the officer's tapping a flashlight onto the car window. The officer made three distinct attempts to get a coherent response from the driver before taking the further action of opening the door out of a concern for the driver's safety. As pointed out in Dermio, “. . . the deputy's concern for Dermio's safety in this case had not yet been alleviated because Dermio continued to be incoherent and ‘out of it'.” [emphasis added] Id. at 556. Dep. Woell, by contrast, had just seen the Defendant driving properly and only made one attempt to check on his welfare. As mentioned earlier, there are a plethora of legitimate reasons why a driver may pull over in the same manner as the Defendant.
In Greider, id., an officer approached a legally parked car that had towels covering both the passenger and driver's windows of the car, concealing the interior as if they were curtains. The officer had a safety concern and approached the passenger's side to see the occupant(s). The driver rolled down the passenger's window and said all was fine. Even though his concern for the occupant's welfare was dispelled, the officer went around to the driver's side and ordered the driver to roll down that window. “We do not ignore [the officer's] testimony that he possessed suspicions regarding the unusual circumstances of the towels covering the windows, even after he had been assured all was well. However, a suspicion, by itself, may reflect well on the officer's instincts but it does not meet the Fourth Amendment's requirement of ‘at least reasonable suspicion that the individual seized is engaged in wrongdoing.' Here, there was no evidence of criminal activity. This event was a second level citizen encounter, an investigatory stop, undertaken without appropriate legal justification.” Greider, id. at 793, citing to Popple at 186. Even if Dep. Woell had not had his welfare concern completely dispelled, there should have been a greater effort made, at least further inquiry, before pulling behind the Defendant's car, blue warning lights illuminating the dark road, approaching the driver's window, instructing him to turn off his engine, and making requests for license and registration. Just like the defendant in Greider, the Defendant here would not feel free to disregard the officer's command, end the encounter, and drive away. The Florida Supreme Court “. . . has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Popple, id. at 188, citing to Jacobson v. State, 476 So. 2d 1282 (Fla. 1985).
In Gentles, id., an officer approached a parked car in a closed mall parking lot inhabited by a driver who appeared asleep. The car's engine was running. The officer awakened the driver and ordered him to turn off the engine. The Fourth DCA found that the officer had not shown a reasonable concern for the driver's safety before telling him to shut off the car. While the officer had a community caretaker function that could allow him to see if the driver needed any assistance, there has to be a specific concern, as opposed to a generalized concern, for the driver's safety to allow this encounter to continue with greater intrusion by the officer. Id., at 1199-1200.
Dep. Woell's testimony causes concern that he made the second approach (by parking behind the Defendant, walking up to the driver's door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court's conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop. “. . . [I]nvestigatory stops based solely upon an inarticulable hunch or unparticularized suspicion are invalid.” Keeling v. State, 929 So. 2d 1169 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1569a].
Based on the finding that the second contact between Dep. Woell and the Defendant was an investigatory stop and not an encounter, the issue about the time of the Defendant's detention on the side of the road before the back-up arrived to begin the DUI investigation is moot.
Based on the circumstances and the case law,
IT IS ORDERED AND ADJUDGED that the Defendant's Motion to Suppress is GRANTED.
Source: 24 Fla. L. Weekly Supp. 829a