Motion to Suppress – Field Sobriety Test

COMES NOW the Defendant, by and through his undersigned attorney, pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure, and respectfully moves this Court to suppress any and all evidence seized and/or obtained from Client, including the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and the results of the breathalyzer test, and in support thereof, states as follows:

Facts

1. The Client was arrested on September 15, allegedly for Driving Under the Influence (“DUI”).
2. The Stopping Officer, C. G. N., Arresting Officer, J. K. H., and the Breath Test Operator, R. A. H., testified at a Florida Department of Highway Safety and Motor Vehicles (FHSMV) Formal Review Hearing (“Hearing”) on March 10. All three officers are employed by the Jacksonville Sheriff’s Office.
3. Officer C. G. N. testified he was stopped in a parking lot adjacent to the parking lot where the Client’s vehicle was traveling. Officer C. G. N. testified that he was approximately twenty-five (25) yards away in an adjacent parking lot. Tr. at 13:16.
4. When Officer C. G. N. first observed the vehicle being allegedly driven by the Client, the vehicle was already in motion. Tr. at 13:10. This testimony is consistent with the Arrest and Booking Report (at 3), which reports Officer N. stating: “As the suspect pulled out from the parking lot, Off. N. observed the suspect spin his tires on his vehicle while he was accelerating.” Thus, clearly, the Client’s vehicle was moving when Officer N. first saw it, and allegedly saw tires spinning.
5. The movement of the Client’s vehicle did not endanger any other vehicles or property (Tr. at 18:11-14), and Officer N. did not observe anything else noteworthy about the manner in which the Client’s vehicle exited the parking lot (Tr. at 15:7-10).
6. Officer N. testified that, only after initiating his emergency equipment, he observed the Client’s vehicle touched the center lane and the edge lane two times. Tr. at 18:21.
7. Officer N. testified that the vehicle never left the lane of travel or went over the roadway line markings. Tr. at 19:3-4.
8. Officer N. testified that the vehicle driven by the Client did not affect any other vehicle and that no cars had to respond or get out of the way of the Client’s vehicle. Tr. at 18:11-14.
9. Officer N. did not issue the Client any traffic citations as a result of his observations. The only moving violation that was issued was for an alleged improper start from a parked position, Fla. Stat. §316.154 (2015).

MEMORANDUM OF LAW

A. Unlawful Stop
Officer N. with the Jacksonville Sheriff’s Office caused Officer H. with the Jacksonville Sheriff’s Office to issue only one citation, for violation of Fla. Stat. §316.154 (2015). That statue, in its entirety, provides as follows:
No person shall start a vehicle which is stopped, standing, or parked, unless and until such movement can be made with reasonable safety. A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

(Emphasis added).

The movement of the Client’s vehicle cannot justify a stop under this statute, for two reasons.
First, when Officer N. first observed the vehicle being allegedly driven by the Client, the vehicle was already in motion. Tr. at 13. Thus, the Client’s vehicle was not “stopped, standing, or parked,” as required by Fla. Stat. §316.154.
Second, the Client’s vehicle, at no point in time, endangered any other vehicles or property, as required by Fla. Stat. §316.154. The State is unable to establish that the Client committed a violation of this statute.

Thus, neither of the two key elements of the statute were violated by the Client, and thus the basis for the stop was unfounded, and without probable cause.
In Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002), the Fourth Circuit Court of Appeal dealt with an almost identical driving pattern. In that case, the court held, that:
There was no evidence with respect to how Appellant started his vehicle. The officer did not see Appellant “start a vehicle which is stopped, standing, or parked.” § 316.154, Fla. Stat. (1999). There is no indication that squealing tires alone constitutes a traffic infraction. We are at a loss to understand how squealing tires without more constitutes a danger to public safety. Therefore, the officer did not have probable cause to believe that Appellant committed a traffic infraction, rendering a stop on that basis illegal.

In this case, it is clear that a stop based on Fla. Stat. §316.154 must fail, as not only did Officer N. fail to observe the Client “start a vehicle which is stopped, standing, or parked,” but Officer N. also failed to observe the Client’s vehicle drive in a manner which put the person or property of another in danger (in no small part due to the fact that the Client did not drive in that fashion).
Officer N. therefore mistakenly believed that the Client violated Fla. Stat. §316.154 (2015). However, in Hilton v. State, 961 So. 2d 285 (Fla. 2007), the Supreme Court of Florida clearly stated that “an officer’s mistake of law, as to what constitutes a traffic violation, no matter how reasonable, cannot provide objectively reasonable grounds for reasonable suspicion.” Id. at 294.
In this case, as Donaldson makes clear, no violation of Fla. Stat. §316.154 took place – and that was the only citation issued to the Client. Therefore, given the absence of probable cause that the Client violated any other traffic law, anything subsequent to Officer N.’s seizure of the Client is subject to suppression.
Although not cited for the violation (and thus proof of its invalidity), the State may argue that Officer N. could have cited the Client for failing to maintain a single lane, in violation of Fla. Stat. §316.089(1). However, as a matter of law, the Client did not commit a violation of Fla. Stat. §316.089(1), as Officer N. has testified that the Client’s driving did not affect any other traffic, or cause any other vehicles to move or react. Tr. at 18.
In Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998), police followed a vehicle “for a distance,” and, during that time, they observed the vehicle drive over the right line of the edge of the right lane on three occasions. In the instant case, Officer N. has previously testified that the Client never left his lane of travel and that he only observed the Client’s vehicle touch the center lane and the edge lane two times. Tr. at 18:21. At no time did the Client’s vehicle cross over the line. Tr. at 19:3-4. The Second District Court found that this driving pattern did not constitute a violation of the failure to maintain a single lane statute, pursuant to Fla. Stat. §316.089(1).
That statute provides that a “vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” In Crooks, the court ruled there was no basis to state that the defendant “was outside the ‘practicable’ lane,” since “the record does not establish how far into the emergency lane Mr. Crooks drove on any of the three occasions.” The court also ruled that there was “no objective evidence suggesting that Mr. Crooks failed to ascertain that his movements could be made with safety.” The court reasoned that the statute in question is similar to the turn signal statute considered in State v. Riley, 638 So. 2d 507 (Fla. 1994), holding that the turn signal statute requires a showing that the driver’s conduct in failing to use turn signal creates a safety concern for other vehicles and that no claim was made that any vehicle (including either of the officers’ vehicles) was endangered in any way. Accordingly, the court found that the trial court should have granted Crooks’ motion to suppress.
In Jordan v. State, 831 So. 2d 1241 (Fla. 5th DCA 2002), the Fifth District Court of Appeal reached a similar conclusion, stating that “failure to maintain a single lane does not create strict liability; movement from a single lane is permitted when the driver ascertains that the movement can be made safely.” 831 So. 2d at 1242. Because no other vehicle was found to be affected by the defendant’s driving in this case, the court found that the statute was not violated and suppression should be granted.
In this case, Officer N. has clearly testified that the Client’s vehicle did not endanger any other vehicles, and that no other vehicles had to react to the movement of the Client’s vehicle.
Additionally, Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004) is inapplicable to the facts of this case. In Yanes, the driver left the lane by more than half a car length on three occasions, within one mile. In the instant case, Officer N. has testified that at no time did the Client’s vehicle leave its lane. Tr. at 19. Therefore, Officer N. was correct in not citing the Client for a violation of Fla. Stat. §316.089(1) for failing to maintain a single lane.

Conclusion

Officer N. did not have probable cause of criminal activity, or a traffic violation, to justify stopping or detaining the Client for a DUI investigation – or any other reason. There was not a lawful basis to justify the stop of the Client’s vehicle. Therefore, any and all evidence seized and/or obtained from the Client, including the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and the results of the breathalyzer test should be suppressed.
WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the stop, detention, and arrest.