Thursday, February 28, 2008

Sitting at flashing red light for 41 seconds not PC to stop

San Diego DUI lawyer news - California DUI attorney edition case

Fla. L. Weekly Supp. 689a
Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer's observation that defendant's vehicle sat at flashing red light for 41 seconds when there was no other traffic present and then drove through intersection in a safe manner created only a mere suspicion of criminal activity, not a well-founded reasonable suspicion justifying stop -- Officer had no justification to conduct safety stop where defendant was not exhibiting behavior that should be characterized as dangerous to another person or vehicle, and officer's safety suspicions that defendant was injured or vehicle was malfunctioning should have been alleviated by defendant's normal driving technique and vehicle's obvious operation in driving through intersection -- Error to deny motion to suppress

JAMES EDWARD JONES, JR., Appellant, vs. THE STATE OF FLORIDA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-239 AC. Lower Court Case No. 395250 W. Opinion filed August 9, 2001. An appeal from the County Court for Miami-Dade County, Florida, Edward Newman, Judge. Counsel: Jason P. Gray, for appellant. Katherine Fernandez Rundle, State Attorney, and Anne Wedge-McMillen, Assistant State Attorney, for appellee.

(Before JUDITH L. KREEGER, STANFORD BLAKE, and PETER LOPEZ, JJ.)

(STANFORD BLAKE, J.) James Edward Jones, Jr., the appellant, was convicted of driving under the influence after the trial court denied his pretrial motion to suppress all evidence derived from the initial stop. Jones appeals the trial court's decision alleging that the police officer lacked reasonable suspicion of criminal activity to justify the stop. We find that there was no reasonable suspicion of criminal activity to justify the stop. Therefore, we reverse the trial court's decision on Jones' pretrial motion to suppress.

In determining whether the officer obtained reasonable suspicion, this court follows the guidelines in State v. Russell, 659 So. 2d 465 (Fla. 3d DCA 1995). ``An investigatory stop is authorized when a law enforcement officer `encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws[.]' Sec. 901.151(2), Fla. Stat. (1993). There must be a reasonable, or founded, suspicion that criminal activity may be afoot. See, United States v. Sokolow, 490 U.S. 1, 7,109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989); Popple v. State, 626 So.2d 185, 186 (Fla. 1993). To justify a stop, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably justify the stop.'' Id. at 467.

In the case at bar, the police officer testified that at 4:19. a.m. he observed Jones' car sitting at a flashing red light for 41 seconds when there was no other traffic present. As the officer made a U-turn to pull up behind Jones' car, Jones drove through the intersection in a safe manner. The officer activated his lights and pulled Jones to the side of the road to investigate whether Jones was impaired.

This court finds that these facts create only a ``mere'' suspicion of criminal activity and not a well-founded reasonable suspicion of criminal activity. See, Popple v. State, 626 So. 2d 185 (Fla. 1993); A.H. v. State, 693 So. 2d 89 (Fla. 3d DCA 1997); Bush v. State, 594 So. 2d 793 (Fla. 3d DCA 1992). During the officer's less than one-minute observation, Jones sat at a light and then drove safely through the intersection. In this age of cellular phones and interchangeable car cd players, a pause in driving should not lead an officer to suspect criminal activity without additional facts. The only additional fact given by the officer was that Jones drove safely through the intersection. Jones safe driving behavior does not provide the officer with the additional facts necessary to justify a reasonable suspicion of criminal activity.

The trial court found that there was justification for a stop based on a temporary safety stop allowable under Bailey v. State, 319 So. 2d 22 (Fla. 1975). During a safety stop, a police officer is justified in temporarily detaining an individual to conduct a safety investigation as to whether the individual is suffering from health problems or the individual's car is malfunctioning. See, Bailey, 319 So. 2d at 26. However, the case at bar distinguishes itself from the safety stop in Bailey. In Bailey the driver was exhibiting dangerous driving behavior, i.e., slight weaving, that may reasonably lead an officer to believe that the driver was impaired or the car was malfunctioning. See, Id. at 24. Here, Jones was not exhibiting behavior that should be characterized as dangerous to another person or vehicle because he was not moving and there was no other vehicle present.

In addition, even if it can be assumed that sitting at the flashing light should equate to dangerous driving behavior, the Jones' stop continues to distinguish itself from the Bailey safety stop. In Bailey the police officer had a belief that the driver was injured or the car was malfunctioning based on a three-mile observation of the car's weaving pattern prior to the stop. See, Id. Here, prior to the stop, the officer observed Jones drive safely through the intersection. At that point, the officer's safety suspicions that Jones was injured or the car was malfunctioning should have been alleviated by Jones' normal driving technique and the car's obvious operation. Therefore, the officer had no justification to conduct a Bailey safety stop.

For the above stated reasons, we hold that there were no well-founded facts to justify a reasonable suspicion of criminal activity nor, in the alternative, justification for a safety stop under Bailey. The trial court's denial of Jones' motion to suppress all evidence derived from the initial stop is reversed. (JUDITH L. KREEGER and PETER LOPEZ, JJ. concur.)


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