Castella v. State

• Decision Date: 25 July 2007
• Docket Number: No. 4D06-2495.,4D06-2495.
• Citation: 959 So.2d 1285
• Parties: Edward J. CASTELLA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

959 So.2d 1285

Edward J. CASTELLA, Appellant, v. STATE of Florida, Appellee.

No. 4D06-2495.

District Court of Appeal of Florida, Fourth District.

July 25, 2007.

Rehearing Denied July 25, 2007.

Michael Metz of the Law Offices of Richard G. Lubin, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING AND/OR CERTIFICATION AND MOTION FOR REHEARING EN BANC

PER CURIAM.

Edward Castella filed a Motion for Rehearing and/or Certification and Motion for Rehearing En Banc. We deny the motion in all regards. However, we withdraw our previous opinion and substitute this opinion in its place in order to further elucidate our analysis.

Edward Castella was convicted of felony boating under the influence following a stop by law enforcement. He raises two issues on appeal. We affirm in all respects, but write to address the issue challenging the denial of Castella's motion to suppress evidence resulting from the stop of his boat.

Castella was charged with leaving the scene of a crash (vessel), two counts of boating under the influence (misdemeanor) [related to the crash], and another count of boating under the influence [related to a law enforcement stop]. He was convicted of the boating under the influence count related to a law enforcement stop and acquitted of the other charges.

Castella filed a motion to suppress, and the trial court held a hearing on the motion. At the hearing, Broward Sheriff's Deputy Dunning testified that he was a marine patrol deputy on an off-duty detail on the night of the incident. He and his partner, Broward Sheriff's Deputy Manes, who was also on the off-duty detail, were eating dinner at a restaurant along the intracoastal waterway. Deputy Manes saw a boat moving fast through an idle speed zone, the deputies went to the water, the boat approached, and the unidentified, excited passengers advised that there had been a boat accident with injuries to the south (the scene of which turned out to be about a mile and two minutes of travel away). The passengers identified Castella's nearby boat as being involved in the accident, but did not indicate when the accident had occurred (although it seemed to the officers that it had just happened). Without confirming whether an accident had occurred, the deputies then made contact with Castella, although he was not violating any laws. Castella appeared drunk and unsteady. Manes testified that he saw a cooler and empty beer bottles and cans in Castella's boat.

Broward Sheriff's Deputy Anthony testified that he was working as part of the DUI Task Force on the night of the incident and was called to the scene of the stop. When Anthony came into contact with Castella, Castella appeared extremely unsteady, with flushed skin, watery eyes, slurred speech, and the odor of alcohol on his breath. Based on his appearance and field sobriety exercises, Anthony concluded that Castella had been boating under the influence. Fort Lauderdale Police Officer Blish, who was also on scene, testified that when he came into contact with Castella, Castella smelled of alcohol, his eyes were bloodshot, and his speech was slurred.

Following the suppression hearing, the trial court made the following ruling on the record:

The Court heard the evidence in the motion to suppress hearing. Deputy Dunning testified that on August 28, year 2004, while he and his partner Deputy Manes were approaching by boat the Roadhouse Grill restaurant, which is immediately south of the Commercial Boulevard bridge on the intracoastal, a boat approached them at high speed. The people that were in the boat were agitated told them that a boat accident had just taken place and pointed to the vessel of the defendant as being involved in this boat incident.

The deputies approached the defendant's vessel which it was an open fisherman, they made contact with the defendant's boat, the defendant was the only occupant of the boat. Defendant appeared to Deputy Dunning as being unsteady, appeared drunk and Deputy Dunning at that point told the defendant to take his boat to the Bayview Medical Center area by water.

The people who gave the information to Deputy Dunning told him that the accident had taken place north of the Commercial Boulevard bridge. The defendant's boat was traveling south on the waterway and was at the point that these individuals pointed his vessel coming right under the bridge from the location of where the deputy said the—I mean the people said the accident had taken place.

Deputy Manes, who was also with Deputy Dunning at that time, said that when they approached the defendant's boat, he observed a cooler, he observed empty bottles of beer on the floor of the vessel. He had the impression from the individuals who gave them the information and pointed to the defendant's vessel that the accident had just happened.

The Court also had the opportunity to observe the video of the sobriety tests that were administered by Deputy Anthony to the defendant and the performance of the defendant on those tests.

Finally, the last deputy [Blish] who appeared on Monday at the continuation of the hearing stated that the defendant when approached, smelled—had an odor of intoxicants and raised a suspicion.

The Court did some research as to whether what the defense has referred to as tipsters that were not identified are at the same level as an anonymous tipster. The Court finds two cases right on point, Carattini versus State, CARATTINI, which is [7]74, So.2d, 920 [927], 79927, a 2001 case. In this case, a security officer in a retail store was approached by a woman who said three men just ran out of your store carrying a duffle bag full of your clothes. The security officer asked the lady to point who the three men were, she went with him to the parking area, pointed to the three individuals, pointed to the car that the three individuals were getting in to. The security officer did not know the woman who spoke to him and he never got her name or any other identification.

Based on the information given by this woman, the security officer called the police who approached the three defendants, they had the merchandise from the store and they were placed under arrest.

The Court in this case of Carattini versus State denied the motion to suppress and states, I think that the circumstances here suggest that the person who gave the information to Officer Jarvis is closer to an identifiable citizen as opposed to an anonymous tipster.

In any event, I think this situation really involves an identifiable citizen who was standing next to Officer Jarvis, who gave Officer Jarvis information face to face, who went outside, pointed out the vehicle to Officer Jarvis and pointed out the person closing the trunk of the car.

Now, the reason why that person was not further identified was simply because of the fact that Jarvis had to get about the business of trying to get these people stopped to conduct a further investigation and when he came back, this person who he saw and talked to were simply gone. That make her unidentifiable after the act, but during the course of the events she was certainly identifiable. Had there been more officers in the vicinity, certainly somebody could have gotten her name, address, telephone number etcetera.

I think this is closer to identifiable citizens situation than it is to anonymous tipster that you had in JL versus State, which was apparently just a phone call, never identified, never followed up.

The court of appeals agrees with the trial court, affirms the denial of the motion to suppress and states the totality of the circumstances in this case supports the conclusion that the tip was by a citizen informant entitled to a presumption of reliability rather than by an anonymous source. Although the identity of the informant was never ascertained, that fact is not dispositive. This case presents a classic example of a citizen who becomes eyewitness to a crime in progress.

Supporting the same statement of the law is also Milbin, MILBIN versus State, 792, So.2d, 1272, and that is also a 2001 case from the Fourth District Court of Appeal which stands for the same legal proposition.

In this case, even though the individuals who approached Deputy Dunning and Deputy Manes were not identified by way of obtaining their names or any other information, they gave the information regarding the defendant face to face, they pointed to the defendant and the defendant's vessel, they gave information as to where the accident had taken place, their actions, their words and demeanor, indicated to the police officers that the accident had just taken place. The boat or vessel of the defendant was coming from the direction of the accident. At that point the police officers had sufficient facts to do an investigate—to stop the defendant to investigate the facts.

Once they approached the defendant, they saw his behavior as unsteady, his appearance as being drunk, the odor, the open bottles of beer, there was reasonable suspicion for his detention, his further failure to conduct the sobriety test, together with the totality of the circumstances gave sufficient probable cause for the arrest in this case.

The motion to suppress is denied.

The trial court also denied Castella's motion to suppress for the reasons stated on the record in a written form order.

The case proceeded to trial, and the jury acquitted Castella of leaving the scene of a crash (vessel) and the two counts of boating under the influence (misdemeanor) related to the crash, but found him guilty as charged with the boating under the influence count related to the stop by law enforcement. Castella was adjudicated guilty (of felony BUI based on his prior DUI convictions). He then filed a motion for new trial raising the denial of the motion to suppress. The trial court denied the motion for new...