October 2011 Updates

James Otis, portrait by J. Blackburn, 1755; in...

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STATE v. RODRIGUEZ, 18 Fla. L. Weekly Supp. 940a (11th Jud. Cir., Jul 15, 2011) – A LEO, who observed the defendant driving his truck in the early morning hours at approximately 5:10 am, in a manner described by the officer variously as “a level of lack of control of his vehicle” and “not a normal driving pattern,” on a weekend on Alton Road. Defendant filed a motion to suppress the officer’s post-stop observations of impairment, including defendant’s poor performance of the roadside tests, his breath sample and statements to police. After a hearing at which the sole testimony presented was that of Officer Wirth, the trial judge suppressed the evidence ruling that there was no reasonable suspicion for the stop or that the defendant was impaired, and that there was “no basis for Officer Wirth to have had a reasonable suspicion that a violation of Fla. Stat. § 316.089 occurred.” Appellant, hereinafter the State, appeals and we reverse the suppression order.

A trial court’s factual findings supporting a motion to suppress are reviewed to determine whether they are grounded in competent, substantial evidence, and its legal conclusions are reviewed de novo. In particular, whether reasonable suspicion exists for a detention under a specific set of facts is a question of law to be reviewed de novo. Moreover, it is error for the trial court to make such fact findings that are contrary to an officer’s unimpeached testimony.  Under the community caretaking doctrine, an officer may stop a vehicle without reasonable suspicion of criminal activity if the stop is necessary for public safety and welfare. Shively v. State, 61 So.3d 484 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1111b].

A court must accept evidence which, like the material testimony of the police officers, is neither impeached, discredited, controverted, contradictory within itself, or physically impossible. We find here that the trial court’s ruling that there was no reasonable suspicion for the traffic stop is not supported by any competent substantial evidence. Reversed.

NARDUCCI v. STATE, 18 Fla. L. Weekly Supp. 966a (6th Jud. Cir., Aug 1, 2011) – Defendant was charged with possession of marijuana and leaving the scene of a crash involving property damage. Defendant filed a motion to suppress evidence obtained when officers entered his home without a warrant. The trial court denied the motion and found that because the officers reasonably believed that Defendant required immediate medical attention, exigent circumstances permitted warrantless entrance into Defendant’s home. We agree.

LEO went to [Address omitted] in Tarpon Springs to assist another officer with a hit-and-run investigation. A witness to the accident had followed the vehicle allegedly involved and observed the driver of the vehicle enter the residence at this address. LEO observed that the vehicle had sustained “significant” damage that led him to believe, based on his years of experience as a paramedic, that the driver likely sustained chest or head injuries.

Following several conversations with the Defendant (who would not exit his home), the officers heard a large crash that sounded like glass breaking. The officers were unable to reestablish contact with the individual for the next 10 to 15 minutes. Out of concern for the well-being of the driver and the individual potentially affected by the loud crash, the officers searched around the outside of the residence, but observed no indication that the individual was unharmed.

After speaking with superiors, the officers decided to enter the residence with paramedics standing by to check on the welfare of the person they had been talking to. The doors to the home were unlocked and entrance to the home was not forced. Upon entry, the officers took the most direct route to the individual, but checked the bedrooms and the bathrooms to ensure officer safety. The officers noticed a shattered table in the living room, as well as marijuana and drug paraphernalia in plain view. The sole occupant of the residence (the defendant), was unconscious and the officers had to wake him.

The Fourth Amendment protects the home from physical entry, rendering entrance unreasonable absent exigent circumstances. It is the State’s burden to demonstrate that exigent circumstances exist to overcome the presumption of unreasonableness associated with warrantless home entries. The State must show a “grave emergency” that “makes a warrantless search imperative to the safety of the police and of the community.” The “emergency exception” to the prohibition against a warrantless entry allows police to enter and investigate private residences to “preserve life . . . or render first aid.” It does not matter if subjective motives point to a desire to arrest suspects or gather evidence. Such searches must stop when the exigency no longer exists, but officers may seize items in plain view that are apparently illegal. Affirmed.

RHENALS vs. STATE, 18 Fla. L. Weekly Supp. 973a (9th Jud. Cir., Aug 1, 2011) – Case involving introduction of Facebook pages (and emails) into evidence. Just citing cases that address this since Defendant in case represented self and had a fool for a client. State v. Love, 691 So. 2d 620 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D1000a], Commonwealth v. Williams, 926 N.E. 2d 1162 (Mass. 2010), Bobo v. State, 285 S.W.3d 270 (Ark. App. 2008), Commonwealth v. Purdy, 945 N.E. 2d 372 (Mass. 2011), Thomas v. State, 993 So.2d 105 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2439a].

Some citations to authority have been omitted.

Eric J Dirga, PA

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