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Nicholas v. State10/29/2003
This appeal arises from the entry of a final order violating Jamie Nicholas's probation after he was stopped for DUI. Nicholas filed a motion to suppress the stop. That motion was denied and Nicholas admitted the violation while reserving the right to appeal the suppression issue. We find that the trial court erred in denying the motion to suppress and hereby reverse the order of the trial court.
" trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Pagan v. State, 830 So. 2d 792 (Fla. 2002). However, a defendant is entitled to a de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court's finding of probable cause. Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).
At the hearing, Deputy Moore testified on behalf of the state. Moore explained that he noticed Nicholas's vehicle because Nicholas made a left hand turn from a right hand lane. Moore explained that the roadway Nicholas was driving northbound on had two lanes, one turning lane and another lane that continued heading north. Moore was driving about two car lengths behind Nicholas when he saw Nicholas make the left hand turn, without signaling, from the right hand lane. Moore acknowledged that he observed Nicholas for a very short period of time and that Nicholas did not interfere with any traffic.
" police officer can stop a driver based on a founded suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense." Roberts v. State,732 So. 2d 1127, 1128 (Fla. 4th DCA 1999). In Roberts, this court determined that an officer had the reasonable suspicion necessary to pull the defendant over where the officer observed the defendant weaving significantly from side to side within the lane but not crossing over the lines.
In Department of Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992), the second district explained:
The courts of this state have recognized that 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. Id. at 1352.
In DeShong, a sheriff followed the defendant for a period of time to check for a possible DUI offense. The sheriff observed the defendant use lane markers to position his vehicle. He then observed the defendant abruptly slow from 55 to 30 miles per hour and then accelerate rapidly for no apparent reason. The sheriff stopped the vehicle because he found the driving behavior "erratic." The second district determined that the driving behavior was sufficient to establish a founded suspicion and to validate a DUI stop. Id. at 1352.
The opposite conclusion was reached in Donaldson, where this court found that an officer did not satisfy the "founded suspicion" requirement to effectuate a valid stop for DUI. Donaldson, 803 So. 2d 856. This court distinguished Donaldson from DeShong by pointing out that the officer only observed Donaldson squealing his tires but did not observe any erratic driving over a period of time. Further, the opinion noted that there were no other cars on the road or in the parking lot that would have been endangered by the squealing tires. Thus, the opinion concluded, "there was no evidence that Appellant drove in a suffic
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