STATE OF FLORIDA vs ASHLY DANIEL JOHNSON

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D21-2866
LT Case No. 05-2018-CT-017891-A-X
ASHLY DANIEL JOHNSON,
Appellee.
________________________________/
Opinion filed May 5, 2023
Nonfinal Appeal from the County Court
for Brevard County,
Kathryn C. Jacobus, Judge.
Ashley Moody, Attorney General,
Tallahassee, and Richard Alexander
Pallas, Jr., Assistant Attorney General,
Daytona Beach, for Appellant.
Bryan D. Savy, of Bross & Savy, PLLC,
West Melbourne, for Appellee.
LAMBERT, C.J.
The question that we address in this appeal is whether, when there is
reasonable suspicion that a defendant has committed the criminal offense of
driving while under the influence of alcohol to the extent that his normal
faculties were impaired (“DUI”), the State must first establish that the
defendant freely and voluntarily consented to performing field sobriety
exercises (“FSE”)1 as a predicate to their admissibility into evidence. The
trial court determined that the State was required to establish such consent
and, having concluded that the State failed to do so, entered the order now
on appeal suppressing evidence of Appellee’s performance on the FSE’s.
We reverse.
ANALYSIS—
In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme
Court held that certain investigative stops by law enforcement officers are
permissible under the Fourth Amendment of the United States Constitution
when based on the officer’s reasonable suspicion that criminal activity is
afoot. Here, during a traffic stop of Appellee, the law enforcement officers
believed that reasonable suspicion existed that Appellee had committed a
1
FSE’s involve a suspect performing certain noninvasive and
commonplace acts. See State v. Burns, 661 So. 2d 842, 843, 848 (Fla. 5th
DCA 1995) (noting that the FSE’s in the case included (1) the recitation of
the alphabet in a non-rhythmic fashion while standing with one’s feet
together, hands at the side, and head back; (2) standing on one leg and
counting; (3) walking heel-to-toe for a certain distance; and (4) touching
one’s finger to the nose, and explaining that “having a defendant perform the
field sobriety test on videotape [is] really nothing more than the collection
and preservation of physical evidence”).
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DUI. As a result, they directed Appellee to perform specific FSE’s, which he
did.
Appellee later moved to suppress the evidence of his performance on
these FSE’s. He argued that, while the officers did not have to inform him of
a right to refuse to perform the FSE’s, nevertheless, absent a showing of his
voluntary consent, the evidence regarding the FSE’s was inadmissible as
being violative of the Fourth Amendment’s proscription against unreasonable
searches and seizures. Appellee maintained that he merely acquiesced to
law enforcement authority and thus, since his voluntary consent was lacking,
the evidence of his performance of the FSE’s was inadmissible at trial.
During the evidentiary hearing held on Appellee’s motion, the court found
that, while reasonable suspicion existed that Appellee had committed a DUI,
Appellee did not voluntarily consent to performing the FSE’s. Resultingly,
the court granted Appellee’s motion to suppress.
The dispositive issue before us involves a question of law—whether a
defendant’s consent to performing the FSE’s is required once there is a
reasonable suspicion that the defendant committed a DUI—therefore, our
standard of review is de novo. See Allenbrand v. State, 283 So. 3d 969, 970
(Fla. 2d DCA 2019) (“On appeal, our review of a ruling on a motion to
suppress regarding the application of the law to the facts is de novo.” (citing
State v. Teamer, 151 So. 3d 421, 425 (Fla. 2014))); All S. Subcontractors,
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Inc. v. Amerigas Propane, Inc., 206 So. 3d 77, 80 (Fla. 1st DCA 2016) (“De
novo review simply means that the appellate court is free to decide the
question of law, without deference to the trial judge, as if the appellate court
had been deciding the question in the first instance.” (quoting Phillip J.
Padovano, Florida Appellate Practice § 19.4 (2015 ed.))).
In State v. Liefert, 247 So. 2d 18 (Fla. 2d DCA 1971), our sister court
addressed a substantially similar question. Citing to State v. Mitchell, 245
So. 2d 618 (Fla. 1971), the Second District Court held that when a police
officer has sufficient cause to believe that the defendant had committed a
DUI, a defendant’s consent to taking “physical sobriety tests” is immaterial,
and the officer could require the defendant to take part in such tests. 247
So. 2d at 19. We agree with the Second District Court and specifically reject
Appellee’s argument here that the State bears an evidentiary burden of
showing that a defendant voluntarily submitted to performing FSE’s.
Our supreme court’s later decision in State v. Taylor, 648 So. 2d 701(Fla. 1995), supports our conclusion. In Taylor, a law enforcement officer
pulled the defendant over and quickly developed reasonable suspicion to
believe the defendant was committing a DUI. See id. at 702. The defendant
inquired if he was going to be asked to perform field sobriety tests. Id. When
the officer said yes, the defendant refused. Id. at 703. At that point, the
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officer informed the defendant that there could be “adverse consequences”
to refusing to perform the tests; but the defendant maintained his refusal. Id.The county court suppressed the refusal, ruling that the defendant “had
not been told the tests were compulsory or that refusal would have adverse
consequences.” Id. The circuit court reversed; but the district court quashed
the circuit court’s order, ruling that “it would be unfair to admit an individual’s
refusal to submit to a test as circumstantial evidence of his consciousness of
guilt where he was not advised of the consequences attaching to his refusal.”
Id. (citation omitted).
On review, the Florida Supreme Court quashed the decision of the
district court and held that the “refusal to take the field sobriety tests was not
elicited in violation of [the defendant’s] statutory or constitutional rights and
its use at trial does not offend constitutional principles.” Id. at 705. Pertinent
here, the court reasoned that, once an officer obtains reasonable suspicion
of a DUI,
[t]he officer was entitled . . . to conduct a reasonable
inquiry to confirm or deny that probable cause
existed to make an arrest. [The officer’s] request that
[the defendant] perform field sobriety tests was
reasonable under the circumstances and did not
violate any Fourth Amendment rights.
Id. at 703–04.
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Notably, nothing in Taylor suggests that upon the existence of a
reasonable suspicion of a DUI, law enforcement officers must thereafter gain
consent before directing a driver to undergo FSE’s. Neither Taylor nor the
Fourth Amendment requires the officer at roadside to warn the motorist of a
“right” to refuse to perform FSE’s, State v. Whelan, 728 So. 2d 807, 811 (Fla.
3d DCA 1999), which is seemingly in direct conflict with Appellee’s argument
here that he has a right to refuse to perform FSE’s and thus his consent was
required before giving up this “right.” Stated somewhat differently, if consent
is necessary, then it would logically follow that a person could exercise the
right to refuse to participate in FSE’s without consequences, which Taylor
holds is not the case.
Accordingly, based on Liefert and the analysis in Taylor, we hold that
when reasonable suspicion exists that a defendant has committed a DUI, the
defendant can be required to perform FSE’s and consent is immaterial. The
trial court’s suppression order is reversed, and this case is remanded for
further proceedings.
REVERSED and REMANDED.
EDWARDS and EISNAUGLE, JJ., concur.
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