November 2011 Updates. Part II


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Happy Thanksgiving 2011!

STATE v. HEFFRON, 18 Fla. L. Weekly Supp. 1088a (6th Jud. Cir., Aug 10, 2011) – THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an order of the Pinellas County Court granting Appellee’s Motion to Suppress.  After reviewing the briefs and record, this Court reverses the order of the trial court.

Under a judicially created exclusionary rule, known as the confusion doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The confusion doctrine is not clearly recognized in Florida. “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Kurecka v. State, 2010 WL 3766727, 9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b].  A licensee, when asked to take a breath test, has an affirmative duty to make any confusion about his or her rights known to law enforcement, so that law enforcement is aware that further explanation is needed. Bolek v. Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 215a (Fla. 6th Cir. App. Ct. 2005); see Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. 2005). “If, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.” Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002). State v. Alves, is a trial court order granting a motion to suppress. 3 Fla. L. Weekly Supp. 553a (Fla. Orange Cty. Ct. 1995). “In Alves, the county court found that the confusion doctrine applied to the facts in that case because the defendant was read his Miranda rights, emphatically requested the opportunity to speak to a lawyer when he was requested to take a breath test, and it was never explained that the Miranda rights previously read were not applicable to the implied consent procedure for the breath test.” Kurecka, 2010 WL 3766727 at 6. This court has previously explained and by this opinion we say again that the Alves trial court order is not binding on this Court. See Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. Sept. 7, 2005). The trial court’s ruling that “[t]here [was] no clear refusal” was error. A driver cannot lawfully avoid the requirements of Florida’s implied consent statute by simply giving a blank look or no response. Secondly, the Alves trial court order is not binding or controlling authority.

HENDRIXSON vs. STATE, 18 Fla. L. Weekly Supp. 1090a (5th Jud. Cir., Sep 6, 2011) – Following the trial court’s denial of his motion to suppress, the Appellant tendered a nolo contendre plea to the charges of Driving Under the Influence of Alcohol to the extent that his normal faculties were impaired and Possession of Marijuana under twenty grams, reserving his right to appeal the denial of his motion to suppress.
The material facts in this case are essentially undisputed. The Appellant was sitting behind the wheel of his motor vehicle on an apartment complex roadway with his high beam headlights on. An officer with the Ocala Police Department was approaching the Appellant’s stationary vehicle. When the officer was approximately two hundred to three hundred feet away, he “flashed” his lights as a signal to the Appellant to reduce his lights to “low beam”. The Appellant did not dim his lights. When the officer neared to within one hundred feet of Appellant’s vehicle, Appellant reduced his lights to low beam and began to drive away. At that point, the officer, believing the Appellant had violated Sec. 316.238, Fla. Stat. (2010), initiated a traffic stop and, during the stop, determined that probable cause existed to arrest Appellant on the above charges. With no factual dispute, the question before us is the construction or interpretation of this statute. We agree with Appellant. When the language of a statute is clear, unambiguous and conveys a clear and definite meaning, there is no occasion for a Court to resort to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). A Court is without power to construe an unambiguous statute in a way which would extend, modify or limit the express terms or its reasonable and obvious implication because to do so would be an abrogation of legislative power. Id. The unambiguous language of this statute requires that a driver must be approaching an oncoming vehicle before being required to reduce his or her head lights from high beam to low beam. A stationary driver, such as Appellant, is not an approaching driver. Because the evidence conclusively established that Appellant had reduced to “low beam” prior to approaching the officer, we find that there was no traffic violation and therefore no probable cause for the traffic stop. As a result, the evidence obtained from this stop is inadmissable “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83, S.Ct. 407 (1963).
For the reasons set out above, we REVERSE the trial court’s denial of the Appellant’s motion to suppress and because the motion is dispositive, we REMAND this case to the Trial Court with directions to grant the motion to suppress, vacate the Judgment and Sentence, and DISCHARGE the Appellant.

STATE vs. COLANTONIO, et al., 18 Fla. L. Weekly Supp. 1100a (18th Jud. Cir., Aug 31, 2011) – A trial court’s determination with regard to a discovery request is reviewed under an abuse of discretion standard. Overton v. State, 976 So.2d 536, 548 (Fla. 2007) [32 Fla. L. Weekly S775a]. The lower court granted the defendants’ request upon the Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing, filed in the above-styled cases, which have been consolidated for the disposition of this issue only. Based upon a review of the Defendants’ Motions and the official Court files, and being otherwise fully advised in the premises, the Lower Court made the following findings.
The Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing are GRANTED. The Defendants shall be given an opportunity to inspect and test an Intoxilyzer 8000. A representative of the State may be present during the inspection and testing to ensure that the testing does not result in damage to the machine. The State may require the examiner to sign a non-disclosure agreement before the inspection and testing in order to protect the intellectual property. The Defendants shall be responsible for all costs associated with the inspection and testing of the Intoxilyzer 8000.
This Court finds no abuse of discretion, the orders of the trial courts are AFFIRMED.

STATE v. VOLARE 18 Fla. L. Weekly Supp. 1104b (11th Jud. Cir., Sep 21, 2011) – 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]. For example, an officer is permitted to stop a vehicle when it is being operated in an unusual manner even though no traffic violation is suspected. State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5 thDCA 2005) [30 Fla. L. Weekly D1525a]. The purpose of such a stop is to ascertain whether the driver of the vehicle is in need of assistance due to illness, tiredness, or impairment and to protect the motoring public from harm. See, Shively, 61 So.3d at 484; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Such a stop is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady, 413 U.S. at 441.
While not citing Cady v. Dombrowsky, supra, which had been issued two years previously, the Florida Supreme Court’s decision in Bailey v. State, 319 So.2d 22 (Fla. 1975), and its progeny, control this case and demonstrate the error in the trial court’s ruling, which, we conclude is unsupported by any competent substantial evidence and misapplies Florida law. The Bailey Court upheld a stop in nearly identical circumstances to those in the instant case, stating:
Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other. Perhaps some of the possibilities occurring to the officer were defective steering mechanism or that the operator was driving under the influence of alcohol or some other drug.
Bailey v. State, 319 So.2d at 26.
Clearly the Bailey rationale employed Cady’s “community caretaking function” in validating the stop there notwithstanding that Mr. Bailey’s vehicle never strayed out of its lane of traffic, violated no traffic law, but demonstrated an “unusual operation” that caused concern in the officer’s mind justifying his stop of the vehicle.
Accordingly, we find that whether Volare’s car was statutorily-compliant, is not the determinative and controlling issue in this case. We find that the record supports the officer’s observation of the vehicle straddling the right lane as well as the inoperative brake light. The law supports the officer making a stop to determine the reason for its unusual operation, i.e. straddling the right lane. The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop and the facts in this case support the officer’s action. Therefore we find that the court below improperly suppressed the evidence and this cause is reversed and remanded.

STATE vs. RAZZANO, III, 18 Fla. L. Weekly Supp. 1119a (9th Jud. Cir., Sep 19, 2011) – The State appeals from an order granting Appellee Razzano’s pretrial motion to suppress. We conclude the trial judge erred in granting the motion, and reverse.
Two police officers were investigating an anonymous Crimeline report that drugs were being sold at a certain address; that one Anthony Razzano was one of the parties dealing the drugs along with roommates, and that there was a lot of foot and vehicle traffic coming and going from the apartment all times of the night and day. The officers went to the address to conduct a “knock and talk.” Upon arriving at the two story house, they knocked at the front door. Razzano opened the door. Officer Ochiuzzo, a trained and experienced officer, from outside the door where he was standing immediately smelled the odor of burnt marijuana and observed a white bag on a table in the middle the living room. The bag had a green leafy substance protruding out of it which he suspected was marijuana. The two officers entered, handcuffed Appellee, and while Officer Roman detained him, officer Ochiuzzo seized the white bag and a set of weighing scales containing marijuana residue sitting next to it. Without making a sweep of the other rooms in the house, the two officers then immediately left with Razzano in custody and the bag and scales. The whole encounter was a comparatively minimal intrusion, taking approximately two and a half minutes.
It is clear from the trial judge’s ruling that he determined as a matter of law that suppression was required because of two factors in Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D713b]: (1) another person was in the room at the time of the entry and (2) the contraband was cocaine, a serious offense. The other factor the trial judge determined was controlling was the gravity of the offense underlying Razzano’s arrest — possession of less than 20 grams of marijuana. The trial judge followed several cases originating with Welsh v. Wisconsin, 466 U.S. 740 (1984), relied upon by Appellee’s counsel in argument at the hearing and in his briefs. In Welsh, the United States Supreme Court held that the gravity of the offense was an important, but not an absolute factor in determining whether a warrantless, non-consensual entry of a home and an arrest and/or seizure of contraband in plain view was constitutionally permissible. Since Razzano’s arrest was for what he felt was a minor offense (“$10 worth of cannabis?” as he put it), not a felony such as possession of cocaine, the trial judge concluded that Welsh and the cases following it required suppression.
Under Florida law possession of less than 20 grams of marijuana is a misdemeanor of the first degree punishable by imprisonment in county jail for up to 12 months, and thus not a “minor” offense. We hold that the entry, arrest and seizure of the bag of marijuana and the weighing scales here was reasonable and lawful, and that the trial court erred in suppressing the evidence. Consequently, the order appealed from is reversed, and the case remanded for further proceedings with directions to deny Appellee’s motion to suppress. REVERSED and REMANDED with directions.

Eric J Dirga, PA

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