Hermeen R. Jacobson v. State of Florida , 227 So. 3d 712 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
HERMEEN R. JACOBSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1400
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 20, 2017.
An appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, Judge.
Andy Thomas, Public Defender; Laurel Cornell Niles and Brenda L. Roman,
Assistant Public Defenders, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney
General, Tallahassee, for Appellee.
ROBERTS, J.
On appeal, the appellant challenges the denial of her motion to suppress
evidence seized after what she claims was an illegal traffic stop. We affirm.
During the suppression hearing, the arresting officer, who had training and
experience on how to identify someone who was under the influence, testified that
at around 7:22 p.m., he reported to the Azalea Lounge to investigate a potential
vehicle accident. When he arrived, he encountered the appellant standing outside of
her legally parked vehicle, which was damaged. The officer determined that the
damage to the vehicle was preexisting, but observed that the appellant was
“extremely intoxicated.” He did not have a basis to arrest the appellant at that time,
but warned her that if he saw her driving, she would be arrested for DUI. A friend
of the appellant’s came out of the Azalea Lounge and said he would take charge of
her, and the two went inside. In the interest of public safety, the officer parked his
patrol car across the street in plain view. He observed the appellant walk toward her
car on two occasions, but she turned around when she saw the officer’s patrol car.
The officer had to leave the area when he was dispatched to another call.
At 8:35 p.m., the officer returned to the area for the sole purpose of checking
up on the appellant. As he approached, he saw the appellant’s car pull onto the road.
He looked in the car and saw that the appellant was driving, so he followed her
briefly. The officer admitted that the appellant was obeying all traffic laws and was
not driving erratically. He became concerned when it appeared that she was going
to get on the interstate. Knowing her condition, the officer testified that he did not
want her on the interstate at those speeds, so he stopped her. The officer admitted
that his stop was based on his previous contact with the appellant. He knew that it
takes several hours for alcohol to get out of the bloodstream and stated, “There was
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no human way possible that she was no longer intoxicated.” Upon stopping the
appellant, the officer observed that the appellant was still extremely intoxicated, had
slurred speech, red and glassy eyes, and emitted a strong odor of alcohol. He asked
her to perform field sobriety exercises, which she refused. He then placed her under
arrest for DUI. The appellant refused to take a breath test. In a search incident to
arrest, a baggy of cocaine and a straw were recovered from the appellant’s pocket.
In her motion to suppress the evidence seized as a result of the traffic stop,
she argued that the stop was illegal because she did not break any traffic laws and
was not driving erratically. She further argued that the stop was unsupported by a
founded suspicion of criminal activity, namely because the officer’s observation of
her intoxication during the first encounter was not corroborated by any field sobriety
exercises. The trial court disagreed and denied the motion to suppress. We affirm.
The officer admitted that the appellant did not violate any traffic laws to
justify the stop. Therefore, the stop had to be based on the officer’s founded
suspicion that she was driving under the influence. See Hilton v. State, 961 So. 2d
284, 290 (Fla. 2007) (“The United States Supreme Court has held that stopping a
vehicle is permissible under the Fourth Amendment only where there is a reasonable
suspicion that either the vehicle or an occupant is subject to seizure for a violation
of law.”) (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). The totality of the
circumstances must be considered in evaluating whether an officer has a reasonable
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or well-founded suspicion to justify an investigatory stop. Baden v. State, 174 So.
3d 494, 497 (Fla. 4th DCA 2015) (citing Finizio v. State, 800 So. 2d 347, 349 (Fla.
4th DCA 2001)).
Many of the “founded suspicion” cases involve an observation of erratic
driving that, while not illegal, raises concerns for public safety. Here, there was no
indication that the appellant was driving erratically or weaving to otherwise justify
the stop. The founded suspicion came from the rather unusual circumstance wherein
the officer had the opportunity to personally observe that the appellant was
extremely intoxicated approximately one hour prior to observing her driving. His
training and experience led him to conclude that it would have been impossible for
the appellant to have sobered up within the hour. Thus, the officer’s stop was
justified out of his belief that the appellant was impaired and his concern for the
safety of the public. See Agreda v. State, 152 So. 3d 114, 116 (Fla. 2d DCA 2014)
(“[A] ‘legitimate concern for the safety of the motoring public 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.’” (citing State, Dep’t of Highway Safety & Motor Vehicles v. DeShong,
603 So. 2d 1349, 1352 (Fla. 2d DCA 1992))); Dep’t of Highway Safety & Motor
Vehicles v. Ivey, 73 So. 3d 877, 880-81 (Fla. 5th DCA 2011) (“Florida courts have
recognized that valid safety concerns can warrant a brief investigative stop by law
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enforcement officers to determine whether a driver is intoxicated using a somewhat
more relaxed standard than that required for other crimes.”). We reject the
appellant’s assertion that the officer’s initial observation of her intoxication should
have been corroborated by field sobriety exercises because, at the time of their first
encounter, the appellant was not driving. Based on the totality of the circumstances,
the officer had a founded suspicion that the appellant was committing a DUI and
was a potential danger to the public to justify an investigatory stop. Accordingly,
the motion to suppress was properly denied.
AFFIRMED.
MAKAR, and JAY, JJ., CONCUR.
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