Be On The Look Out for Vehicle alone is insufficient to establish probable cause of DUI arrest

Dec 20, 2023

Case reported in the Flordia Law Weekly Suppement

Online Reference: FLWSUPP 3108PLAZ

Criminal law — Driving under influence — Search and seizure — Vehicle stop — BOLO report — Continued detention — Arrest — State failed to prove that deputy had rasonable suspicion for detention or probable cause for arrest of driver that was stopped following BOLO report of possibly impaired driver — Deputy’s testimony regarding indicia of impairment exhibited by defendant was contradicted by video from his body camera, testimony of fellow deputy and jail nurse, and inconsistences in deputy’s own testimony — Moreover, where BOLO did not include any explanation of the basis for belief that driver was impaired, deputy’s observations that defendant had bloodshot eyes and odor of alcohol were insufficient to support reasonable articulable suspicion justifying detention — Motion to suppress is granted
STATE OF FLORIDA, Plaintiff, v. ASHLEY ROSARIN PLAZA, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2021-CT-1677-A. August 17, 2023. John Woodard, Judge. Counsel: Helen Haynie, Office of the State Attorney, Sanford, for Plaintiff. Matthews R. Bark and Ethan W. Carlos, Matthews R. Bark, P.A., Altamonte Springs, for Defendant.

ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS EVIDENCE

THIS COURT, having reviewed the testimony, evidence and argument of the parties hereby:

GRANTS Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions and Admissions. The Court finds as follows:

On May 30, 2021, Deputy Jerome Grunat arrested the Defendant, Ms. Ashley Plaza, for the offense of Driving Under the Influence. On June 9, 2022, the undersigned filed a Motion to Suppress Evidence Pursuant to Florida Statute 901.15 and 901.151(6) and Motion to Suppress Confessions, Statements, and Admissions, and a Motion to Suppress or Limin to Exclude Defendant’s Alleged Refusal to Take a Breath Test. A hearing was held on said motions on September 9, 2022, and March 2, 2023.

At the hearing Deputy Patrick Rehder, Deputy Jerome Grunat, Breath Technician Ray Garcia, Analyst Sean Ryan, and Nurse Christine Davies all tesitfied. Deputy Rehder tesitfied that he was off duty and in his personal car when he observed Ms. Plaza driving. He allegedly observed her to be speeding, swerving in her lane, and roll through a red light. Deputy Rheder did not describe for how long he observed Ms. Plaza speeding or swerving in her lane. Deputy Rehder followed Ms. Plaza to a gas station and testified that he observed her walk in and out of the store with no difficulties. Deputy Rehder relayed his observations to dispatch, but testified that he was not sure if he relayed them to Deputy Grunat prior to stopping Ms. Plaza’s vehicle.

Deputy Grunat testified that he was notified by dispatch about a driver who may be intoxicated. How dispatch got this information was not testified to by Deputy Grunat. A helicopter located the vehicle and guided Deputy Grunat to it as his lights and sirens were on. Deputy Grunat pulled behind Ms. Plaza while another officer blocked her from the front of her vehicle. Upon approaching Ms. Plaza, Deputy Grunat testified that he observed the odor of alcohol coming from her breath and that she had bloodshot and glassy eyes, but that she denied drinking any alcohol. Deputy Grunat then ordered Ms. Plaza out of her vehicle and requested her to perform field sobriety exercises (hereinafter “FSEs”).

After performaning well on the FSEs as depicted on the body camera video, Deputy Grunat arrested Ms. Plaza for the offense of DUI. Before being transported to the Seminole County Jail, Ms. Plaza requested to speak with an attorney but was denied this request.

While at the jail, Ms. Plaza allegedly refused to take a breath test. Prior to and after “refusing” to take a breath test, Ms. Plaza was not provided access to a phone, but was sent to medical to see Nurse Christine Davies.

Nurse Davies testified that she did not smell alcohol on Ms. Plaza and specifically stated that Ms. Plaza did not appear impaired. Nurse Davies also testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent.

Having recited the testimony the Court now holds that the State did not meet its burden of proving a lawful detention of the defendant to conduct a DUI investigation. The Court commends Deputy Grunat on his candor before the Court as it allows the Court to properly complete its truth finding mission. With that said, the Court notes that Deputy Grunat had not been a sworn law enforcement officer long at the time of the arrest of the defendant. Deputy Grunat, himself, acknowledged that he had not received the proper training he has now received post this arrest.

While the Court believes Deputy Grunat has learned a lot and become more familiar with the courts, after this particular arrest, the Court is required to analyze the case from the perspective of what occurred on the particular day of the arrest, what training and experience the officer had, and to determine the credibility of the observations and opinions testified thereto.1 Prior to Ms. Plaza’s arrest, Deputy Grunat had only been involved in five DUI investigations and the only formal training he had was from the police academy and one hour from the sheriff’s office. Notably, Deputy Grunat testified that he has gone through more training and learned a lot more since this arrest, including the fact that he should have given Ms. Plaza another chance to complete the walk and turn exercise. While it is not necessarily wrong that Deputy Grunat did not have much training, it is important for this Court to consider because his decision that Ms. Plaza’s faculties were impaired must have been based on proper training and experience. See Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D2630b]; State v. Lewis, 27 Fla. L. Weekly Supp. 559a (Fla. Seminole Cty. Ct. 2019) (18th Judicial Circuit).

Many of Deputy Grunat’s observations are in contradiction with the video footage (body camera and in car cameras) admitted into evidence, other witness testimony, and even his own testimony. The assertion that Ms. Plaza’s eyes were bloodshot and glassy is rebutted by the video footage. Multiple points in Deputy Grunat’s body camera video capture Ms. Plaza’s eyes and she does not have bloodshot and/or glassy eyes. (See e.g., State’s Exhibit 1 — Deputy Grunat’s body camera from 05:05-05:20 and 09:45-10:10).

Deputy Grunat also testified that Ms. Plaza had slurred speech. The video footage and testimony presented contradict this assertion. Throughout the entirety of the videos admitted into evidence Ms. Plaza is speaking clearly and is not slurring her words, mumbling, or otherwise having trouble speaking. (See e.g., Defense’s Exhibit 1 — Deputy Grunat’s dash camera from 15:45-end, and Deputy Grunat’s backseat camera from 15:30-end; State’s Exhibit 1 — Deputy Grunat’s body camera from 04:45-15:00). Ms. Davies, the jail nurse, also testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent.

There are also inconsistencies within Deputy Grunat’s own testimony regarding his observations of Ms. Plaza’s performance of the FSEs. At the first day of hearing, Deputy Grunat testified that during the pen and eye exercise Ms. Plaza’s eyes did not follow smoothly and that she moved her head. At the continued hearing, Deputy Grunat changed his testimony and testified that Ms. Plaza did not move her head during the pen and eye exercise. For the one leg stand, Deputy Grunat tesitifed at the first day of hearing that Ms. Plaza used her arms for balance and was swaying during the exercise. However, at the continued hearing Deputy Grunat changed his testimony and stated that Ms. Plaza was not swaying during the one leg stand. The video confirms that Ms. Plaza was indeed not swaying and that she counted out loud correctly. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 12:30-12:41).

Further contradicting Deputy Grunat’s observation that Ms. Plaza was swaying includes Deputy Rheder’s testimony that he did not witness Ms. Plaza swaying or stumbling as she got out of her car and walked into the gas station. In fact, Deputy Grunat’s body camera shows that Ms. Plaza got out of her vehicle without swaying, stumbing, or using anything for support. (See Defense’s Exhibit 1 — Deputy Grunat’s body camera from 07:55-08:08). While these inconsistencies may go to a probable cause determination, as opposed to reasaonable suspicion analysis, the inconsistencies taken with the other evidence in the hearing, effect this Court’s view of Deputy Grunat’s observations and opinions.

Additionally, testimony was presented which contradicted Deputy Grunat’s observation that Ms. Plaza smelled of alcohol. After being transported to the jail Ms. Plaza was evaluated by the jail nurse, Ms. Christine Davies. Ms. Davies, who has been a licensed nurse since 1977, tesitified that she did not smell alcohol on Ms. Plaza. She further testified that during her evaluation of Ms. Plaza she determined that Ms. Plaza was not under the influence of alcohol, muchless displaying any impairment.

Ultimately, there is evidence and testimony regarding observations from both pre-arrest and post-arrest which contradict what Deputy Grunat allegedly observed. In light of the inconsistent and contradicted testimony from Deputy Grunat, in comparison with the other evidence admitted, this Court finds that the State has not met its burden to substantiate the lawfulness of the detention and search conducted to administer the FSEs. In other words, there is not competent substantial evidence to support the warrantless seizure. Carter v. State, 120 So.3d 207 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D1802a] (“[R]easonable suspicion depends on both the content of information that law enforcement possesses and its degree of reliability. Both quantity and quality of information are considered in the ‘totality of the circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).”

In light of Deputy Grunat’s lack of experience, training and knowledge, the conflicts in the evidence, including but not limited to the videos admitted into evidence, the contemporaneus state witness, Deputy Rheder, and the more seasoned, trained and experienced nurse Davies contradicting observations and opinions, this Court holds that the State has not met its burden of proving a legal search and seizure; i.e, the seizure was not supported by reasonable articulable suspicion and thus, grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions.

The Court further finds Deputy Grunat testified that after approaching Ms. Plaza he observed her to have bloodshot and glassy eyes and the odor of alcohol was coming from her breath. It was at this point that Deputy Grunat ordered Ms. Plaza out of her vehicle and requested her to perform FSEs. Thus, the only observations articulated by Deputy Grunat prior to requesting FSEs were the dispatch that the vehicle may be driven by an impaired person (without further explantion articulated), her eyes, and the odor of alcohol.

The BOLO for a possibly impaired driver from dispatch to Deputy Grunat did not articulate the basis for this belief. Thus, this observation should not be included in the analysis of reasonable articulable suspicion. Deputy Grunat would have been justified in relying on Deputy Rheder’s or any other law enforcement observations, if those observations had been communicated to him. Carter, 120 So.3d at 209; citing e.g., State v. Peterson , 739 So.2d 561, 564-65 (Fla.1999) [24 Fla. L. Weekly S288a]; see also State v. Kelly, 27 Fla. L. Weekly Supp. 210a, Seminole County County Court Order, (2019, J. Woodard); citing Montes-Valeton v. State, 216 So.3d 475, 478 (Fla. 2017) [42 Fla. L. Weekly S210a]. (“ ‘[G]eneral communications’ with [an officer] . . . regarding the same investigation,’ does not mean that there has been compliance with the fellow officer rule. 216 So.3d at 479. ‘The officer conducting the search or arrest must be ‘act[ing] . . . based upon what he or she is told by a fellow officer.’ Id. Citing State v. Bowers, 87 So.3d at 708.”).

Because the alleged observations of the actual driving pattern were not provided to Deputy Grunat, and at best a general communication was, all that is left are the bloodshot eyes, and smell of alcohol. These observations alone are insufficient to support a finding that the State has overcome its burden to prove the legality of the search and seizure, as it does not meet the requisite level of reasonable articulable suspicion as set forth by the 18th Judicial Circuit Court sitting in its appellate capacity in Hall v. State, in Brevard County Circuit Court Appellate Division, No. 05-2005-AP-035128 (18th Judicial Circuit 2005). (“It is not, by itself, illegal to conume alcohol and then drive, if the driver is not impaired or does not have the requisite blodd alcohol level. Operating a vehicle with the odor of alcohol on the breath is not illegal, nor is driving with some ‘glassy eyes.’ ”). And thus, the Court also grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions under this analysis.

The Court, although unnecessary based on the above, also finds that Deputy Grunat did not have probable cause to arrest the defendant for DUI. “[P]robable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probablity that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” State v. Kliphouse, 771 So.2d 16, 21 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2309f].

Deputy Grunat testified that he based his probable cause to arrest Ms. Plaza on the odor of alcohol, her bloodshot and glassy eyes, slurred speech, and her performance of the FSEs. As previously explained, however, many of Deputy Grunat’s observations were contradicted by testimony and video footage admitted into evidence. For example, there are multiple points in Deputy Grunat’s body camera video which capture Ms. Plaza’s eyes and she clearly does not have bloodshot and glassy eyes. (See e.g., State’s Exhibit 1 — Deputy Grunat’s body camera from 05:05-05:20 and 09:45-10:10). Additionally, it is important to note that the jail nurse testified she did not smell alcohol on Ms. Plaza and specifically said she did not believe Ms. Plaza was impaired. The nurse further testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent. The videos submitted into evidence also corroborate that Ms. Plaza was speaking clearly and was not slurring her words, mumbling, or otherwise having trouble speaking. (See e.g., Defense’s Exhibit 1 — Deputy Grunat’s dash camera from 15:45-end and Deputy Grunat’s backseat camera from 15:30-end; State’s Exhibit 1 — Deputy Grunat’s body camera from 04:45-15:00). Deputy Grunat also testified and his bodycamera video shows that Ms. Plaza got out of her vehicle without stumbling or using anything for support prior to performing FSEs. (See Defense’s Exhibit 1 — Deputy Grunat’s body camera from 07:55-08:08).

As for the FSEs, Deputy Grunat administered the pen and eye exercise, the walk and turn exercise, and the one leg stand exercise. At the first day of hearing, Deputy Grunat testified that during the pen and eye exercise Ms. Plaza’s eyes did not follow smoothly and that she moved her head. At the continued hearing, Deputy Grunat changed his testimony and testified that Ms. Plaza did not move her head during the pen and eye exercise. He also testified that she kept her feet together and kept her arms by her side as instructed. In light of Deputy Grunat’s inconsistent testimony, the body camera video is the most reliable source as to how Ms. Plaza appeared and performed on this exercise. See Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D559b] (holding that a Judge acting as a fact finder is not required to believe testimony of police officers in suppression hearings, even when that is the only evidence presented.); see also Lewis, 979 So.2d at 1200 (“[T]he court must weigh the testimony of all the witnesses and determine the issue based upon the totality of the circumstances. The court is not required to accept at face value the testimony of any witness.”). The video confirms that Ms. Plaza was in fact not swaying or moving her head at all during the pen and eye exercise. (See State’s Exhibit 1 — Deputy Grunat’s bodycamera from 09:40-10:10).

Deputy Grunat testified that Ms. Plaza did not complete the walk and turn exercise properly because she started performing the exercise before he was finished with the instructions. Deputy Grunat did tesitify that Ms. Plaza stood in the starting position without any problems, but he could not recall if she was swaying, using her arms for balance or if she walked heel to toe. Even though Ms. Plaza started the walk and turn exercise before instructed, Deputy Grunat stopped her from completing it or otherwise giving her another chance to perform it. The portion that she was allowed to complete was captured on Deputy Grunat’s body camera, which shows that Ms. Plaza performed it without stumbling or using her arms for balance. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 11:19-11:27). Deputy Grunat admitted that since this investigation he has received additional proper training on DUI investigations and that he should have allowed Ms. Plaza another chance to do the walk and turn exercise upon his directive to begin the exercise.

The last exercise was the one leg stand. Deputy Grunat tesitifed at the first day of hearing that Ms. Plaza used her arms for balance and was swaying during the exercise. However, at the continued hearing Deputy Grunat changed his testimony and stated that Ms. Plaza was not swaying during the one leg stand. Once again, the body camera video is the most reliable source of her performance on the exercise. The video confirms that Ms. Plaza was indeed not swaying and that she counted out loud correctly. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 12:30-12:41).

These inconsistencies once again raise concerns of the reliability of Deputy Grunat’s reported observations and opinions. The Court relies on the video footage admitted into evidence over Deputy Grunat’s testimony. See Maurer, 668 So.2d at 1079. And in doing so, grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions on this basis.

__________________

1See Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1128a] quoting Miles v. State, 953 So.2d 778, 779 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1081a]. “A warrantless search constitutes a prima facie showing which shifts to the state the burden of showing the searches legality.” Id. citing Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977). Even if the only evidence presented at a suppression hearing is the testimony of police officers, the court may disbelieve the evidence presented from the state even if it is uncontradicted. Id. citing Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D559b].

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