BEAHAN v. State of Fla., 1D09-4226.

• Decision Date: 05 August 2010
• Docket Number: No. 1D09-4226.,1D09-4226.
• Citation: 41 So.3d 1000
• Parties: Austin Thomas BEAHAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

41 So.3d 1000

Austin Thomas BEAHAN, Appellant, v. STATE of Florida, Appellee.

No. 1D09-4226.

District Court of Appeal of Florida, First District.

August 5, 2010.

COPYRIGHT MATERIAL OMITTED.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, M.J. Lord, Assistant Public Defender, and Catharine Schoenecker, Legal Intern, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee; Meredith Charbula, Department of Legal Affairs, Tallahassee, for Appellee.

PADOVANO, J.

This is an appeal from an order withholding adjudication of guilt and placing the defendant on probation for possession of a controlled substance and possession of drug paraphernalia. We conclude that the contraband items at issue should have been suppressed from evidence on the ground that they were illegally seized from the defendant's vehicle. Accordingly, we reverse.

The charges arose from a traffic stop on the evening of September 10, 2008, on a street in front of the Milton Housing Project in Milton, Florida. Sergeant Scott Haines of the Santa Rosa County Sheriff's Office was on patrol at that location, because drug transactions were known to take place there.

Sergeant Haines testified that he observed the defendant driving his car slowly down the street and stopping in front of several of the housing units. The street was a two-lane street with sidewalks on each side. After proceeding down the street past several of the residences, the defendant turned around and headed in the other direction. He could have reversed course by making a three-point turn but instead he made a U-turn by driving his vehicle up over the curb on the opposite side of the street. According to Sergeant Haines, the wheels of the defendant's car went onto the grass about two or three feet from the edge of the curb.

There were no other vehicles on the street at the time.

Based on these facts, Sergeant Haines signaled for the defendant to pull over. The defendant produced his driver's license and, while running a computer check on the license, Sergeant Haines called another officer for assistance. Sergeant Haines told the defendant that the reason for the stop was that he had made an illegal U-turn onto the grass. He said that the defendant was nervous but that he did not smell of alcohol and that he did not appear to be under the influence of drugs or alcohol.

Within five minutes a canine officer arrived at the scene with a drug-sniffing dog in the back of his patrol car. The canine officer had arranged to be in the area of the Milton Housing Project. He knew that Sergeant Haines would be working there and he had planned to be close by, in case he was needed. The dog alerted on the defendant's car, and the officers eventually discovered within the car a smoking pipe and a baggie with a crushed up white substance in it. Sergeant Haines then arrested the defendant for the drug offenses.

The defendant moved to suppress the evidence found in his car and the court held an evidentiary hearing on the motion. At the hearing, Sergeant Haines conceded that he had not issued the defendant a citation for making an illegal turn, even though that was the reason he initially gave for stopping the vehicle. He testified during the suppression hearing that he stopped the vehicle because he feared that the defendant was driving under the influence of alcohol or drugs.

The trial court concluded that the improper turn could give rise to a suspicion that the defendant was impaired. Based on that reasoning, the trial court denied the motion to suppress. The defendant entered a plea of nolo contendere, reserving his right to appeal the order denying the motion. The parties acknowledge that the order is dispositive.

To make a lawful traffic stop for driving under the influence of drugs or alcohol, an officer must have a reasonable suspicion that the driver is impaired. See Dep't of Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992); State v. Carrillo, 506 So.2d 495 (Fla. 5th DCA 1987). Whether a reasonable suspicion exists under a given set of facts is a question of law reviewable by the de novo standard. See Ikner v. State, 756 So.2d 1116 (Fla. 1st DCA 2000). Because we conclude that Sergeant Haines did not have a reasonable suspicion that the defendant was impaired at the time of the stop, we hold that the subsequent search of the vehicle was unlawful.

The fact that the defendant was driving slowly in a residential neighborhood should not be regarded as unusual. Any safe driver would proceed cautiously down a two-lane residential street with sidewalks on both sides. Nor is it cause for suspicion that the defendant stopped from time to time. He was not driving erratically and the fact that he stopped a few times along the side of the street is more likely to indicate that he was looking for an address or speaking with friends than it does to suggest that he was impaired by the use of alcohol or drugs.

Whether the observation of an improper U-turn would be cause to suspect that a driver is impaired depends on the circumstances. Perhaps there would have been some cause for concern if the turn had been made in the face of oncoming traffic or on a dangerous curve or at a point where the visibility was restricted. But in this case there was nothing about the turn that would have suggested that the driver was not operating the vehicle safely.

There were no pedestrians in the way, and there was no traffic on the street. The fact that the wheels came over the curb and a few feet onto the grass is not itself a reason for concern. An unimpaired driver might have thought that the street was wide enough for the turning radius of the vehicle only to find that it was not.

This leaves only the fact that the events took place in an area where drug transactions are known to take place. Of course, this fact is not sufficient to support a reasonable suspicion of criminal activity. The fact that there have been drug arrests in a particular neighborhood before is not a reason to believe that every person driving through that neighborhood is there to sell or purchase drugs. See e.g., Dames v. State, 566 So.2d 51 (Fla. 1st DCA 1990); Bolinger v. State, 576 So.2d 875 (Fla. 2d DCA 1991). Here the question is whether the officer had a reasonable suspicion that a person driving through a known drug area was impaired by the use of drugs. The...