IN THE COUNTY COURT IN AND FOR PASCO COUNTY, FLORIDA

CRIMINAL DIVISION

 

State of Florida,

                 Plaintiff,

       vs.

 

Xxxx Xxxxxx

                 Defendant

Case Number:

 

0000-XXX

 

 

                  

 

MOTION TO SUPPRESS AND

INCORPORATED MEMORANDUM OF LAW

 

The defendant, Xxxx Xxxxxx, by and through undersigned counsel, and respectfully files the following supplemental memorandum of law in support of Mr. Xxxxxx’s Motion to Suppress Evidence: 

 

Cases discussing the issue raised herein are many, and consistent.  The below-noted opinions hold that police may not stop a motorist driving as nearly as practicable within a lane (or) safely moving to another lane.

 

Police may stop a citizen driving a car if there is probable cause the citizen has committed a traffic violation.  Holland v. State, 696 So.2d 757 (Fla. 1987).  

 

 Cases discussing probable cause in the context of a F.S. 316.089(1) traffic violation are many, and consistent.  The below-noted opinions hold that police may not stop a motorist driving as nearly as practicable within a lane (or) safely moving to another lane.

 

VehicleInMotionReportsPage3Crop

 

Please note that in Mr. Xxxxxx’ case, the police report listed only three “visual detection cues” to support the stop.  There was an anonymous tip. He was not cited for any of the alleged violations. The “cues” in the following cited cases have also been counted to better compare Mr. Xxxxxx’s case with the prevailing case law.  The Video of Mr. Xxxxxx’s driving is here. The actual driving begins at about twelve minutes (omitted for privacy reasons).

 

 

 1. State v. Labra, 5 Fla. L. Weekly Supp. 556 (11th Judicial Circuit, Dade County Court, 4/15/98).  Defendant was driving at 5:10 a.m. along a five-lane road, two northbound, two southbound, one common turn lane, “swerving from lane to lane, straddling the line between the lanes, zigzagging, and swerving into the common turn lane.”  The other traffic was not affected.  Defendant was stopped and cited for an alleged violation of F.S. 316.089(1) and F.S. 316.193(DUI).   

 

Held:  No violation of F.S. 316.089(1).  Motion to Suppress, granted.   

 

(Visual detection cues:  4) 

 

 2. Staley v. State, 6 Fla. L. Weekly Supp. 761 (19th Judicial Circuit Court, Indian River County, 8/18/99).  Defendant was driving at 12:00 a.m. along a five lane road, two northbound, two southbound, one common turn lane, when police observed her “drift from the right lane or the outer lane across the lane divider line into the inside lane or the left lane and then back into the right lane.  Her left tires crossed the divider line.  She continued southbound for approximately one minute in the right lane, and then changed lanes from the right lane into the left southbound lane without using a turn signal.  She then made a left turn, again without using a turn signal.  The other traffic was not affected, but police suspected she was impaired, sleepy, or sick and stopped her.    

 

Held:  “Ms. Staley did not commit any traffic infraction nor was she involved in any erratic driving giving rise to a founded suspicion to justify stopping her vehicle.  The stop was illegal.”  Motion to Suppress, granted.   

 

(Visual detection cues:  5) 

 

3. DeJesus v. State, 7 Fla. L. Weekly Supp. 508 (15th Judicial Circuit Court, Palm Beach County, 4/4/00).  The police report (probable cause affidavit) alleged appellant was weaving, however, it did not indicate how many times or to what degree.   

 

Held:  Evidence insufficient to prove defendant violated the “weaving statute” or to prove police had an objective founded suspicion defendant was impaired.  Motion to Suppress, granted.   

 

(Visual detection cues:  1) 

 

 

4. State v. Alford, 2 Fla. L. Weekly Supp. 483 (17th Judicial Circuit Court, Broward County Court, 9/14/94).  Defendant was traveling eastbound at 9:30 p.m. in the inside lane.  The police officer was following directly behind him for nearly 1 mile.  Defendant crossed back and forth into the outside lane six or seven times, in a weaving pattern.  Videotape evidence conflicted with the policeman. 

 

Held:  If a driver’s movement from a lane can be accomplished without endangerment, there is no violation of F.S. 316.089(1).  Motion to Suppress, granted.  The Court went on to explain, 

 

 "Indeed, several analogous cases instruct that in order to justify the stopping of an automobile, more than minor deviations from the traffic law must exist.  For example, in Collins v. State, 65 So.2d 61 (Fla. 1953), the Florida Supreme Court held that a defendant who drove on the wrong side of the road on three occasions in the course of a mile by driving one foot over the center line of the highway was insufficient to justify the police officer’s stop of the defendant ... See also, Kehoe v. State, supra., 521 So.2d at 1097 (“It is difficult to operate a vehicle without committing some trivial violation …”)." 

 

(Visual detection cues:  1) 

 

 5. State v. Crawford, 9 Fla. L. Weekly Supp. 562 (15th Judicial Circuit, Palm Beach County Court, 6/25/02).  Defendant was driving eastbound at 12:35 a.m. at a speed of 25 MPH, in a 45 MPH zone.  She braked abruptly twice, drifted, hugged the extreme right side of her lane, and then moved to the left side of her lane.  The other traffic was not affected.  The police officer suspected the driver was ill or impaired and stopped her.   

 

Held:  Motion to Suppress, granted.  In granting the motion, the court briefed 13 cases in support of its ruling [Bailey v. State, 319 So.2d 22 (Fla. 1975); Esteen v. State, 503 So.2d 356 (5th DCA 1987); State v. Carrillo, 506 So.2d 495 (5th DCA 1987); State Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349 (2nd DCA 1992); Crooks v. State, 710 So.2d 1041 (2nd DCA 1998); Roberts v. State, 732 So.2d 1127 (4th DCA 1999); Finizio V. State, 800 So.2d 347 (4th DCA 2001); State of Florida v. Meyers, 6 Fla. L. Weekly Supp. 646 (County Court, Pinellas County, 1999); State v. Townley, 6 Fla. L. Weekly Supp. 531 (9th Judicial Circuit in and for Orange County); Staley v. State, 6 Fla. L. Weekly Supp. 761 (19th Judicial Circuit in and for Indian River County, 1999); Noorigan v. State, 2000 WL 291557 (4th Judicial Circuit, 2000); Dobrin v. State DMV, 9 Fla. L. Weekly Supp. 355 (7th Judicial Circuit, 2002); Bell v. State DMV, 9 Fla. L. Weekly 354 (9th Judicial Circuit in and for Volusia County, 2002)].  The Court concluded its opinion with the following: 

 

“This Court will not grant police officers blanket authority to conduct investigatory stops for DUI, by virtue of a ‘well being check’ on motorists who simply are lost, unfamiliar with the vicinity, or pose no danger to surrounding traffic.”  Bell, supra. 

 

(Visual detection cues:  5) 

 

 

6. State v. Wainberg, 4 Fla. L. Weekly Supp. 669 (11th Judicial Circuit, Dade County Court, 1/24/97).  The policeman was traveling 60 mph in a 55 mph zone when the defendant passed him.  The defendant could not keep his car in a single lane.  He traveled from the left lane, to the center lane, to the right lane, to the center lane, to the right lane, and then exited.  While exiting, he drove into the emergency lane then back to the exit lane.  The other traffic was not endangered. 

 

Held: No probable cause to stop defendant's car.  Motion to Suppress, granted. 

 

(Visual detection cues: 3) 

 

 7. Delafe v. State, 8 Fla. L. Weekly Supp. 594 (11th Judicial Circuit Court, Miami Dade County, 7/24/01).  Police followed defendant's car for 10 ½ blocks, as he weaved within his lane, while driving at a slow speed. 

 

Held: Evidence of weaving within a lane is alone an insufficient reason to stop a motorist.  Motion to Suppress, granted. 

 

(Visual detection cues:  2) 

 

 

 8. State v. Gschwendtner, 9 Fla. L. Weekly Supp. 620 (11th Judicial Circuit, Miami Dade County Court, 7/18/02).  Police were following defendant as he was driving northbound at 1:30 a.m.  The defendant stopped at a red light just after crossing the pedestrian crosswalk.  He proceeded northbound, drifting back and forth within his lane.  He also tapped his brakes several times.  When police activated his overhead lights, he traveled several blocks before stopping.  The other traffic was not affected. 

 

Held: Motion to Suppress, granted. 

 

(Visual detection cues:  4) 

 

 9. State v. Gonzales, 3 Fla. L. Weekly Supp. 701 (17th Judicial Circuit, Broward County Court, 12/26/95).  Defendant was driving at 1:30 a.m., weaving within his lane, and crossing the lane divider by a foot over a two-mile distance.  The other traffic took no evasive action.  See also Gonzales 5 Fla. L. Weekly Supp. 661b

 

Held: Since the other traffic was not affected by defendant's driving pattern, there was no violation of F.S. 316.089(1).  Motion to Suppress, granted. 

 

(Visual detection cues: 2) 

 

 10. Noorigan v. State, 7 Fla. L. Weekly Supp 369 (4th Judicial Circuit, Duval County Court, 2/23/00).  Police were driving behind defendant, who was driving at 12:00 a.m.  Defendant drifted out of his lane and into the center turn lane, before making a slow correction to his original lane.  Other vehicles were on the road but took no evasive action. 

 

Held: Motion to Suppress, granted. 

 

(Visual detection cues: 2) 

 

 11. State v. Stahr, 4 Fla. L. Weekly Supp. 225 (4th Judicial Circuit, Clay County Court, 7/16/98).  Police were driving behind defendant, who was driving in the middle of 3 lanes.  Defendant crossed and drifted one foot into the right lane then drifted back to touch the left line of the middle lane.  No evasive action was taken by the other vehicles. 

 

Held: Motion to Suppress, granted. 

 

(Visual detection cues: 2) 

 

 12. Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998).  Police were driving behind defendant who drove over the right hand lane lines, into the emergency lane three times. 

 

Held:  Motion to Suppress, granted.  There was no basis that defendant was outside the "practicable" lane mentioned in F.S. 316.089(1), and even if he was outside the margin of error, the movements could be made with safety. 

 

(Visual detection cues:  2) 

 

 13. Jordan v. State, 27 Fla. L. Weekly D2651 (Fla. 5th DCA 12/13/02).  The Jordan case provides the most recent treatment of the Second District's opinion in Crooks, supra.  In Jordan, the defendant's driving included crossing traffic lanes and swerving back and forth for no reason. 

 

Held: F.S. 316.089(1) "recognizes that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision."  Motion to Suppress, granted. 

 

(Visual detection cues:  2) 

 

 14. United States v. Smith, 799 F.2d 704 (11th Cir. 1986).  The police were following defendant for one mile at 3:00 a.m. when he crossed into the emergency lane and then weaved and drifted within the right lane. 

 

Held: The police did not have probable cause, under Florida law, to stop defendant for a traffic violation. 

 

(Visual detection cues:  2) 

 

 15. Graham v. State, 60 So.2d 186 (Fla. 1952).  Defendant drove across the centerline between Ft. Meade and Bartow two or three times.  The policeman had to use his siren three times before defendant stopped.  The other traffic was not heavy and was not endangered. 

 

Held: The Court stated, "If one is to be charged with reckless driving for crossing the center line of the road, except where 'no passing lanes' have been plainly marked, then we are all going to jail, sooner or later."  Motion to Suppress, granted. 

 

(Visual detection cues:  2) 

 

 16. Bell v. State, 9 Fla. L. Weekly Supp. (7th Judicial Circuit, Volusia County Court, 4/10/02).  Defendant was driving westbound at 2:29 a.m., "tapping his brakes, stopping and going, and continuing to travel down the center of the road."  Defendant then made an erratic swerve into the eastbound lane, drove back down the middle of the road, then began a big looping turn to the left, veered right, then turned left.  The other traffic was not affected. 

 

Held: Motion to Suppress, granted. 

 

(Visual detection cues: 4) 

 

 17. State v. Myer, 2 Fla. L. Weekly Supp. 484 (17th Judicial Circuit, Broward County Court, 9/29/94).  Defendant was driving northbound at 9:34 p.m., going 45 mph in a 55 mph zone.  The police followed defendant for 3 miles, over which defendant made several safe lane changes. 

 

Held: Motion to Suppress, granted. 

 

(Visual detection cues:  2) 

 

Based upon the foregoing precedent, undersigned respectfully suggests Mr. Xxxxxx’s Motion to Suppress should be granted, as the basis for the stop was insufficient.

 

 

Respectfully submitted,

 

 

                                                                    

W.F. "Casey" Ebsary, Jr.

Board Certified Criminal Trial Lawyer

Florida Bar No. 866628

PO Box 1550

Tampa, FL 33601

813.222.2220 Voice

813.222.2222 Facsimile and Data

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by US Mail to the State Attorney's Office, New Port Richey, Florida on this  7th day of  February  2011.

 

 

 

                                                                    

W.F. “Casey” Ebsary, Jr.