FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Manatee County; Susan Maulucci,
Moody, Attorney General, Tallahassee, and Katie Salemi Ashby,
Assistant Attorney General, Tampa, for Appellant.
L. Dimmig, II, Public Defender, and Carly J. Robbins-Gilbert,
Assistant Public Defender, Bartow, for Appellee.
State appeals from an order granting Ricky Don Welch's
motion to suppress evidence seized after Mr. Welch was
discovered unresponsive behind the wheel of his car. In
granting the motion, the trial court reasoned that the
officer had "no articulable, reasonable, particularized
basis to believe that the defendant in this case was or had
been engaged in wrongdoing at the time of the investigatory
stop." Because the State has conceded that the encounter
between Mr. Welch and the officer was indeed an investigatory
stop, a matter on which we express no opinion, we address
only the correctness of the trial court's determination
that the stop was impermissible because the officer lacked a
reasonable suspicion that Mr. Welch committed, was
committing, or was about to commit a crime. This
determination presents a question of law we review de novo.
See State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d
Welch's encounter with law enforcement was prompted when,
around 11:30 in the evening, an officer with the Manatee
County Sheriff's Office was on patrol and saw a car with
its brake lights on stopped at the "key code entry
box" of a gated residential community that was under
construction. After tending to another call, the officer
returned several minutes later and found the car in the same
position with the brake lights still illuminated. He parked
and watched the car for ten to twelve minutes because, as he
explained, in his experience areas under construction are
targets for thefts of appliances or construction materials,
and he wanted to "make sure [the driver] wasn't
somebody trying to enter the neighborhood that didn't
officer waited, a second car approached the gate. After
trying without success to open the gate using a cell phone,
the driver of the second car pulled behind the car at the
entry box. The second car waited a few seconds and then
flashed its lights and honked its horn in an apparent attempt
to draw the attention of Mr. Welch, who was the driver of the
stationary car. The person driving the second car got out,
went up to Mr. Welch's car, and then returned to his own
car. The officer then decided to pull in behind the two cars
"to see what was going on." As he approached the
first car, Mr. Welch "began to rev the engine,
(indicating noise), like on and off, kind of a high rev but
at a slow, like pressing the accelerator slowly back and
forth." The officer testified that the brake lights were
no longer on and that Mr. Welch was "passed out" in
the driver's seat with his eyes closed and head back.
Despite an open window, Mr. Welch did not initially respond
to the officer's attempts to wake him and only responded
after the officer raised his voice.
officer then asked Mr. Welch to turn off the engine
"because he [had] been revving it." During the
ensuing conversation, Mr. Welch "seemed confused, "
"lethargic, " and "like he wasn't all
there." The officer described him as "rosy colored,
" having glassy eyes, and "very mumbled, slurred
speech." The officer requested Mr. Welch's
driver's license; Mr. Welch provided an identification
card. As the officer began to walk toward his patrol car to
check for warrants, he "caught a whiff of alcohol."
A DUI-trained officer was called to the scene and ultimately,
Mr. Welch was arrested.
Welch argued, and the trial court found, that when the
officer asked Mr. Welch to turn his car engine off so the
officer could speak to him, it constituted an investigatory
stop that had to be supported by reasonable suspicion. As we
previously noted, we do not address the correctness of this
determination because the State has not challenged it. We
conclude, however, that by that time the totality of the
officer's observations gave him a reasonable basis to
conduct an investigatory stop.
Fourth Amendment forbids unreasonable searches and seizures.
Terry v. Ohio, 392 U.S. 1, 9 (1968). An
investigatory stop by the police constitutes a seizure under
the Fourth Amendment. Id. at 20-21. Such a stop is
reasonable, and therefore permissible under the Fourth
Amendment, if it is "justified by some objective
manifestation that the person stopped is, or is about to be,
engaged in criminal activity." United States v.
Cortez, 449 U.S. 411, 417 (1981). As explained in
Cortez, the totality of the circumstances must
provide the officer with an objective and particularized
basis for the stop:
Courts have used a variety of terms to capture the elusive
concept of what cause is sufficient to authorize police to
stop a person. . . . But the essence of all that has been
written is that the totality of the circumstances-the whole
picture- must be taken into account. Based upon that whole
picture the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped
of criminal activity.
Id. at 417-18.
this analysis, two elements must be present before a stop is
permissible. Id. at 418. First, the assessment must
be based upon all the circumstances, including the
officer's "objective observations, information from
police reports, if such are available, and consideration of
the modes or patterns of operation of certain kinds ...