State v. Joy, 93-2149

• Decision Date: 31 May 1994
• Docket Number: No. 93-2149,93-2149
• Citation: 637 So.2d 946
• Parties: 19 Fla. L. Weekly D1202 The STATE of Florida, Appellant, v. Harold Keith JOY, Appellee.
• Court: Florida District Court of Appeals

Page 946

637 So.2d 946

19 Fla. L. Weekly D1202

The STATE of Florida, Appellant, v. Harold Keith JOY, Appellee.

No. 93-2149.

District Court of Appeal of Florida,

Third District.

May 31, 1994.

Robert A. Butterworth, Atty. Gen., and Joni Braunstein, Asst. Atty. Gen., for appellant.

Jeffrey S. Weiner and Molly Ebelhare, Miami, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and LEVY, JJ.

PER CURIAM.

The State of Florida appeals from an order of suppression. For the following reasons, we reverse.

On February 27, 1992, Jorge Diaz, a police officer with the City of Hialeah Police Department, was within his jurisdiction stopped at a red light on a street which borders the city of Hialeah Gardens. ¹ Diaz observed a truck which appeared to be travelling at a high rate of speed cross the intersection in front of him. Diaz testified that he heard the truck's engine "revving"; he heard a "whoosh" sound and saw flying dust; and he had to accelerate to an unusually high rate of speed to catch up with the truck. Diaz turned right at the light to follow the truck. Immediately upon turning right, Diaz left his jurisdiction and entered the City of Hialeah Gardens.

Officer Diaz testified that he followed the truck and pace-clocked it with his speedometer. After determining that the truck was, in fact, speeding, Officer Diaz pulled it over. The driver, Harold Keith Joy, initially refused to get out of the truck despite Officer Diaz' shouted requests. When Joy finally exited his vehicle, Officer Diaz observed that Joy's face was flushed, his eyes were bloodshot and glassy, he walked with a stagger, his speech was slurred, and he had a very strong odor of alcohol on his breath. Officer Diaz and Joy exchanged words whereupon Joy allegedly struck Officer Diaz. Joy was placed under arrest and charged with battery on a law enforcement officer, driving under the influence, and resisting an officer with violence to his person.

Joy filed two motions to suppress. The first motion alleged that the stop was illegal because it was effected outside of Officer Diaz' jurisdiction and was not justified by any statutory or common law exception. The second motion sought to suppress all evidence that Joy was speeding based on the fact that the speedometer in the officer's patrol vehicle was not certified as required by section 316.1905, Florida Statutes (1991) and Rule 15B-2.011 of the Department of Highway Safety and Motor Vehicles.

After a hearing, the trial court found that Officer Diaz' lay opinion as to the speed of the vehicle was inadmissible to show excessive speed but was admissible to show that the stop was founded on a reasonable suspicion. Furthermore, the trial court found that Officer Diaz' extraterritorial arrest of Joy for driving under the influence could not be validated under a fresh pursuit theory nor could the arrest be validated as a citizen's arrest. The trial court suppressed all evidence relating to Joy's intoxication. Finally, the court found that Joy's use of force against Officer Diaz was an independent act of misconduct which should not be suppressed. The state appeals from the suppression order.

The trial court erred in entering the suppression order because Officer Diaz was engaged in fresh pursuit of a suspected speeder. The fact that the patrol car's speedometer was not calibrated is of no moment because an officer may stop a vehicle suspected of speeding based on the officer's visual and aural perceptions. See State v. Eady, 538 So.2d 96 (Fla. 3d DCA 1989) (officer's testimony that he saw a vehicle proceeding at "a high rate of speed," and "heard a tire screeching and like a passing gear kicking in" constituted...