THE STATE OF FLORIDA

v.

CARLTON DARDEN

I I I aw ’ " "66iJ6:?wv 1; . I ‘V ‘ Y ‘ i W” _;w;;;:.Q;Q1}$JUI) ~_ |/rv _ I .»fi‘**

NOT FINAL UNTIL TIME EXPIRES

TO FILE RB-HEARING MOTION, AND IF FILBD, DISPOSED OF.~

CUIT COURT OF THE

IN THE CIR

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA

APPELLATE DIVISION

_ CASENUMBBR: 11-551 AC » TRIAL CASENUMBER: 3392xex | . r'- ‘I v 21:; 7;} 53¢‘T-I‘\ ._-\;_ ._":__u' _:5". '~‘5'::- 2NI*4 Z-Ann Appellant, ' _ '\ 4 -. V‘ M" _. § sh CARLTON DARDEN, Appollea. / An appeal fiom a decision by the County Court In and for Miami-Dada County,‘Florida, Fred Seraphin, Judge. ESQ. State Afiomey, and KATHERINE FERNANDEZ RUNDLB, , PEACOCK, ESQ., Assistant State Attorney, for Appellant. - ' Page I of8

ANSLEY B.

-33 --.4 R-s ‘*4 ._~ an,‘ -- "'.".\_ -ll M5’; ~ \ 1v [*2] t| ‘. i l I .I n i V CARLTON DARDBN, in proper person. Hearing on: September I3, 2012. Opinion filed: Before: JOHN SCHLESINGER, YVONNE COLODNY, and MILTON HIRSCH. II.

SCHLESINGER, I.

' _ A . / The Stateof Florida herein appeals the trial oourt’s granting of a Motion to Supptess a traffic stop that led to appellee Carlton Dardetfs arrest for the crime of DUI, Second within a Fiveyear period, in violation ofsection 316.193, Florida Statutes (2010). Upon de nova review, this Court finds no competeng substantial evidence existed to support the trial court's suppression order. Accordingly, we reverse the trial court’s granting ofthe Motion to Suppressi . The trial court would hear fiomjust one witness during the hearing on appellee’s Motion to Suppress. Miami Beach Police Officer Philip Wirth, a thirteen-year veteran with eight years of special assignment to the Motor Squad, testified that he encountered appellee Darden at 3:21 e%mbefl9, 2010; when1)erden‘_s vioifiiion*endangcreci'tl1e antctmafety and nearly caused Winh to crash into Darden. Wirth testified that he and Darden were stopped at the same traffic light, side-by-side, with Darden in the dedicated right-tum-only lane and Wirtlfs marked police ear in the adjacent lane dedicated to non-righcturning traffic. Darden signaled for a right turn, then when the light mined green, went lefiinto ‘\]Virth’s lane in‘ the intetsection. Officer Wirth testified that he had to step on his brakes to‘ avoid colliding with Dal-den’s car. Wirth specifically testlfied as follows: ' '

Q.

Did, at anytime, Mr. Dal-den change lanes from the far right-hand lane that you noticed? ' I I

l "I I I t -3 -I [*3] A. * He swerved into my lane instead ofmaking the right turn. _ -no

Q.

I All right. What happened once he was specifically in your lane? -

A.

Well, I slowed downto lethim get in front ofme because I dlcln’t want to hit - (Trial Tn, I2-13, Sept. 6, 2011). _ - On cross-examination, Offieer Wirth made clear that Darden’s traific violation endangered the officer: A V ' ' ‘

Q.

Okay, so Pm clear, all that you had a problem with in terms ofdriving is that he didn't make that righttum; he came into your lane and went straight?

A.

That’s correct.

Q.

You had to slow down‘? AI ' ' .

Q.

And that he sped tip whenihe turned onto West Avenue, which is a ntaior avenue obiiésedtolvmscett ii I _v " " “Mi-’i'

A.

Both 11'" and Westareone-lane roads ineither direction. _

Q.

Okay. Other than that, was anybody endangered by his driving?

A.

No.

Q.

Any oars put at risk?

A.

No. . , (Trial Tr., 14, Sept. 6, 2011) (emphasis added). The above ercchnnge reflects that Offieer Wirth cautiously asserted that only his own vehicle had been endangered by Darden, es no other vehicles or pedestrians were nearby, unsurprisingly, at’3:2l a.m. Wirtlfs adoptive admission of Page 3 of8 l .1 l I I I I I -i [*4] defense oounsel’s statement that “other than that” no one was endangered by Dm-den’s driving, makes clear beyond any doubt Wirth’s beliefthat Dardenfs move actually endangered Wirth. ' On further questioning by the State, however, Ofiioer Wirth furthet confirmed and reiterated the precise nature ofthe danger posed by Mr. Dan-den’s traffic violation:

Q.

Officer Wirth, justsol can -understand, the spot that he initially came into your lane, that middle lane, wan he in a designated turn lane? V

A.

Yes. '. _" _ ‘v _ " -

Q.

Did he actually make the designated tumlike he was supposed to?

A.

No, he did not. -

Q.

At that time, which tum signal did he have on? _

A.

He had his righttum for the lane that he was in, the appropriate mm signal for the appropriate turn that he failedto make. I ' ’ ' ' _ (TrialTr., 17, Sept. 6, 2011). " “ _ Wirthfiuthertesflfied: F A ' _ _ ‘ ‘ _ _ - _. I lr =1 l -i

Q.

0t’tice1-ftiiheii‘Chilton Darden came'fiEoin the fight turn onlylane, did you have to A-— you called it slowing down, the actionsiyou dencribed-' did you have to take some evasive notion not to strike his vehicle?

A.

Well, ifI would have - -

Q.

' Continued on‘? ' V '

A.

Continued on at the same rate I stalted out --

Q.

You would have crashed into his vehicle? A

A.

I would have hit him. ‘ . Page 4 of 8 [*5] . .-....\... I | i i i

Q.

Soy is it fair to say - I know the question's been asked a couple of times by the defense, but the State’s asking it now. Is _it fair to say had you not taken evasive action to avoid " contact, thatthe defendant would have struck your vehicle?

A.

I would’ve struck his. '

Q.

You would’ve struck his vehicle —

A.

Because he came in front ofme. ‘

Q.

Going at the speed you were going?

A.

. Yes. -

Q.

So is it safe to say that Mr. Darden put your — (Trial Tr., I9-20, Sept. 6, 2011).’ ' _ ' At the conclusion of the above exchange, the court on its own interrupted the State to object from the bench sua sponte to the leading nature of the questioning, and no further testimony was given. ' ‘I ’ ‘ ‘ i . _ At the conclusion of the i‘oreg_oing testimony, the trial court granted the Motion to I I 4T£s.~_-.=Hr--__ Suppress assuresstop, announcing: . - g JUDGE: All right. I-Iere’s the bottom line. Try as you may, the officer stoppedhim. I find nothing illegal what the gentleman did (sic). The mason the officer stopped him was not illegal. He stopped him for not using a dedicated lane, but he didn’t. He went to the lane that went mght, and then he went straight That's not illegal. | ' __ MR. GUINN: Your Honor, ifI may, your Honor. Your Honor, ifI may. He was in a lane that's for turn only. - . ~ JUDGE: Yeah, and he changed it before he went straight. That’s what I heard. He changed it. He went to one that you could turn and go stiaight . . . He got in front of me. I Page 5 of8 I i E l l‘I I [*6] .,___ ._._,.___., r L" if I:I i i I ! arrested him ~ I stopped him for not using a dedicated lane. That happens only when you keep going on the same lane that is meant to turn right. He changed lanes, then he went right, then he went straight ahead. That’s notagainstthe law. (Trial Tr., 20-21, Sept. s, 2011). _ It is well-settled law that in determining a Motion to Suppress, the court “must accept evidence which, like the material testimony of the police Yoffieers, is neither impeached, discredited, controverted, contradictory within itself} or 1 physically impossible.” State" v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA I988); see also Stare v. Wong, 990 So. 2d 1154, 1156 (Fla. 3d DCA 2008 (“Because the trial court was required to accept‘ [the offieer’s unimpeaehed and undiscnedited testimony], it was error to grant the motion suppress based on this finding). A trial court’s ruling on a motion to suppress may be subject to reversal on the grounds that no eompetent, substantial evidence supported the ruling. Weiss v. Stare, 956 So. 2d s42, s4s (Fla. 4m non 2007); Suiiby v. sum, s4s So. 24 nine (rn. so DCA zoos). The court below mede not one remark to reflect a weighing of the evidence or l credibility determinatlo'n"to' wfiiEB"a&"“apjieilere wings normally defer. rm riiIs‘1§“iier's ease where the trial judge believed that the officer’s true motivation differed fi-om his actual testimony. Under such eirelnmstnnees, whether the facts below support a finding that the oftieer had reasonable suspicion to make this stop is a question oflsw which may be reviewed de novo. See, e.g., Beechum v. State, 41 So. 3d 1000, 1002 (I-‘la. lsi DCA 2010). On de nova review, there is simply no evidence in the record ofthis ease to support the trial court’s conclusion that Darden somehow Iawfizlly departed the dedicated right-turn-only lane. Section 316.155, Florida Statutes provides, in pertinent pan: ‘ Page 6 of B " ---I- i i [*7] ..,m. .__._._.-.-- t § ll !-' l l I E E it l t. E l i. i No person may turn a vehiole from a direct course or move right or lefiupon a highway unless and until such movement can be made with reasonable safety. and then only q/‘ier giving an appropriate signal in the manner hereafter provided, in ‘ the event anyother vehicle may be afiected by the movement. “ § 316.155, Fla. sot. (zoos) (emphasis added). Offieer Wirth’s uncontradicted testimony is internally-consistent and unimpeached, and must be accepted by the trial court. The trial court made nocomment to suggest a rejection of some portion ofthe testimony. Furthermore, the trialjudge’s conclusion that the testimony does not describe a violation of law cannot be sustained on do nova review of the factual record below. The only record testiniony concerning “signaling” is that Darden signaled for u right turn and then moved into the adjacent lane to his left without ever signaling Iefior even turning 017' his right turn signal. This testimony in conjunction with Officer Wirth‘s testimony that he had to brake to avoid "colliding with Darden makes the trial courts ultimate conclusion of law unsustainable. These facts n<w=.88ariiy.describe a violation oiffsection 316.155, Florida Statutes. establishing reasonable suspicion tojustify the stop. There it no competent, substantial evidence of record to support e findingpierdenls ectlon niovinghis vehicle into Officer Wirtlfs lane constl_tuted_ a lawful act. To find otherwise sin. facts below would be to permit drivers in dedicated “turn-only” lanes to signal a tum and move their vehicle in the opposite direction ofthat signal into an adjacent “non-turn-only” lane, "while endangering vehicles in the adjacent lane. ' ' . Page 7 of8 [*8] F; .,_-.-,-.-,... I t tr t Accordingly, alter de nova review, the trial court’s grant of the Motion to Suppress is REVERSED and nnmnnsn for further proceedings consistent with on opinion.‘ cotomtv, and tultscn, JJ. concur. ' corms FURNISHED T0 counsnt or RECORDAND T0 ANY PARTY Nor nsrnssemso BYcounsst ‘ I . ..__ . Appellee’s argument that the trial court’s finding that no violation of section 316.155, Florida Statutes could be shown on the record was not preserved for appellate review requires no discussion.The trial court rejected the State's only argument, viz., that Darden illegally changed lanes without -signaling and thereby endangered the officer. That the State, alter losing the Motion to Suppress, may have added a “fallback” argument concerning Darden's unusual driving pattern is of no moment. Indeed, the State never even raised its secondary “fallback” argument until alter the court denied the motion to suppress. (Trial Ti-., 20-27, Sept. 6, 2011). " Page8of8 I | i i