DUI Law- Florida Says Drug Stop is Legal

This case comes to DAD from Fort Pierce and Key West Florida Attorney Mike Kessler. (Notice: Beginning in 2012, if you send DAD an appellate decision and your info, if DAD uses it here you will get credit and a link to your site). In May v. State of Florida, the appeals court held that the officer had reasonable suspicion to stop a vehicle where the officer saw a car leave a pharmacy suspected of prescription fraud, followed the car, and saw the occupants pass around a prescription bottle as if each was removing some of the items in the bottle. The police claimed they had observed a brake light violation, but the State stipulated that a stop for such an incident alone would have been invalid. The State then argued the stop was valid based upon the suspected illegal pill-sharing:

"[A]t the suppression hearing the detective testified that from her training and experience, a lot of narcotics violations by hand-to-hand transactions or “sharing of pills” typically occur in the parking lots of pain clinics. She also testified that the pain clinic under investigation was a “cash only” operation, which is the situation with a majority of pain clinics. She further testified that it is common to observe people leaving pain clinics engage in conduct she referred to as “sharing of pills,” in which people “divvy up the proceeds of what they received from the doctor.” She explained that often the drugs obtained by the patient leaving the pain clinic are given to the driver of the vehicle as payment for driving the patient to the clinic. Frequently, the situation is a “sponsorship” arrangement whereby a person in the vehicle supplies the cash to purchase the drugs. In return, for supplying the cash, the sponsor is given some of the drugs. The detective also testified: “But the fact that the pill bottle goes around was suspicious, especially working diversion cases and these types of crimes, people don't share their prescription bottle.”

Even though an objective view of the facts might appear to show only wholly innocent conduct, the court gave great weight to the officer's experience in findsing that the stop was still valid:

"As we observed in Santiago v. State, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006),

Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week, the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.”

(quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)). In Santiago we went on to say that it was not necessary that an officer actually observe drugs change hands to establish reasonable suspicion. Instead, an officer may rely on other circumstances, such as “whether the officer can see either drugs or money being transferred, the officer's narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site.” Id. at 1279.

"A police officer may stop a person for the purpose of investigating possible criminal behavior if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Davis, 849 So. 2d 398 (Fla. 4th DCA 2003). “In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So. 2d 185 (Fla. 1993). “A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge and experience.” Davis, 849 So. 2d at 400 (citing Stevens, 354 So. 2d at 1247 (emphasis added).⁴

Continuing, the court wrote:

"Our prior statements in Benemerito, Santiago, and Davis lead us to conclude that in determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer's perspective and the officer's training and experience.⁵ What may appear to be innocent conduct to the average citizen, who is unaware of how drug crimes are committed, may reasonably appear suspicious to an officer. In this case, the officer testified about a pattern of illegal conduct (“sharing of pills”) which the officer learned through observation and training occurs with regularity at or near cash-only pain clinics. “Sharing of pills” is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal “sharing of pills.” “Sharing of pills” behavior is a very different illegal drug activity than the hand-to-hand sales transactions involved in Benemerito and Santiago.⁶ As we said in Santiago, observation of drugs is not necessary in the context of hand-to-hand sales of drugs. In the context of “sharing of pills,” it seems to us that observation of the drugs themselves is likewise not necessary and observation of passing a prescription pill bottle is sufficient."

The court thus affirmed the denial of the motion to suppress.

Editor's note: although 'deference to the police officer is found nowhere in the US Constitution,  the presumption of innocence and the requirement of a search warrant are explicitly written therein.

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DUI Law - Utah Upholds Stop On Collective Knowledge Doctrine

In State of Utah v. Houston, one cop --- P.3d ----, 2011 WL 4865169 (Utah App.), 2011 UT App 350 the State appealed the district court's grant of Defendant Patricia Salazar Houston's motion to suppress evidence seized after a traffic stop. The facts were as follows:

"In November 2008, Deputy Avery Stewart responded to a report of retail theft at a grocery store in Providence, Utah. While on site, Deputy Stewart spoke to Trooper Phil Rawlinson, who was off duty at the time. While the two were speaking, Trooper Rawlinson observed Houston driving her car out of the grocery store parking lot. Trooper Rawlinson had previously arrested and cited Houston on numerous occasions. Twice in 2006, he was involved in arresting Houston for driving under the influence, and in 2007, he issued Houston two citations for driving under a revoked license. When arresting Houston in 2006, Trooper Rawlinson discovered that Houston's license was revoked until 2012. In addition, just a few days before seeing Houston in November 2008, Trooper Rawlinson verified in a Driver License Division computer database that Houston's license was still revoked."

The appeals court first discussed the law commonly referred to as "the collective knowledge doctrine":

"Typically, the “officer's own observations and inferences” support his or her reasonable suspicion determination. See State v. Case, 884 P.2d 1274, 1276–77 (Utah Ct.App.1994). “However, ‘under certain circumstances the officer may rely on other sources of information’ such as ‘bulletins[ ] or flyers received from other law enforcement sources,’ so long as ‘the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop.’ “ State v. Roybal, 2010 UT 34, ¶ 14, 232 P.3d 1016 (alteration in original) (quoting Case, 884 P.2d at 1277). A “flyer” has been defined as “any information intended to prompt investigation that is transmitted through police channels, regardless of method.” Id. (internal quotation marks omitted). Also, “the collective knowledge doctrine (sometimes referred to as the fellow officer rule) allows the objectively reasonable articulable suspicion to be based on the totality of the circumstances and the collective knowledge of all the officers involved.” State v. Prows, 2007 UT App 409, ¶ 13, 178 P.3d 908 (internal quotation marks omitted). In Prows, we held that if one officer had reasonable suspicion to effectuate a level two traffic stop and passed that information along to a second officer, under the collective knowledge doctrine, that reasonable suspicion was imputed to the second officer and justified the second officer's level two traffic stop." 

"Thus, if Trooper Rawlinson possessed reasonable suspicion that Houston was driving a vehicle with a revoked driver license, then that reasonable suspicion can be imputed to Deputy Stewart. This is true regardless of whether Trooper Rawlinson articulated how he obtained his knowledge about Houston's driver license to Deputy Stewart. See Case, 884 P.2d at 1277 & n. 5 (emphasizing that only the originating officer is required to have reasonable suspicion and that the second officer may accept the information “at face value”).

Applying that doctrine to the instant case, the court found that the stop was proper, and reversed:

"[W]e determine that Trooper Rawlinson had sufficient personal interactions with and knowledge about Houston, including a recent verification of her license's status, to raise reasonable suspicion that Houston was driving on a revoked license. The record indicates that Trooper Rawlinson verified the status of Houston's license on the Driver License Division computer a few days prior to Houston's November 2008 arrest, which the district court acknowledged in voicing its concern that Deputy Stewart had not obtained this precise information from Trooper Rawlinson before stopping Houston. Upon seeing Houston drive out of the lot, Trooper Rawlinson was able to identify her by name to Deputy Stewart and articulate that she was driving on a revoked license.


In spite of the possibility of a glitch in the Driver License Division computer that Trooper Rawlinson used or that Houston's license could have been reinstated just after Trooper Rawlinson used the computer, which were concerns articulated by the district court, we conclude that Trooper Rawlinson had reasonable suspicion that Houston's license was still revoked. Because Trooper Rawlinson had reasonable suspicion that Houston was driving a vehicle with a revoked driver license, that reasonable suspicion is imputed to Deputy Stewart. See Prows, 2007 UT App 409, ¶ 14. Therefore, Deputy Stewart had reasonable suspicion that Houston was driving on a revoked license, which justified the traffic stop."

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DUI Law - Ohio Says Reasonable Suspicion Means More than Mere Odor

In State of Ohio v. Santiago, Slip Copy, 2011 WL 4863973 (Ohio App. 2 Dist.), 2011 -Ohio- 5292, the defendant was arrested for DUI and during an inventory search drugs were found in the glovebox. On appeal the defendant contested, inter alia, the basis for the request to submit to field sobriety testing. The defendant agreed that the initial stop for a minor traffic offense (driving left of center) was lawful, but he contended that the additional request for the performance of filed sobriety tests was not supported by ample reasonable suspicion. The Ohio Court first examined precedent:



"In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No.2000–CA–30. See, also, State v. Swartz, Miami App. No.2008CA31, 2009–Ohio–902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No.2001CA35, 2001–Ohio–7081 (holding that “strong” odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).







"Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a “very fact-intensive” determination. State v. Wells, Montgomery App. No. 20798, 2005–Ohio–5008, ¶ 9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, Montgomery App. No. 19323, 2003–Ohio–1047, ¶ 14, quoting State v.. Andrews (1991), 57 Ohio St.3d 86, 87–88."







The court then recited the applicable facts in the instant appeal:







"At the suppression hearing, Officer Kunkleman testified that he observed Santiago “driving left of center, driving down the middle of the roadway” in the early morning hours of December 6, 2009; there were two passengers in the car. Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found “suspicious.” When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were “tired” and “glassy” and that an “odor of alcohol” was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could “smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage” on Santiago."







The court then concluded that reasonable suspicion existed:







"The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago)—independent of the car or someone else in the car—smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.







The opinion also noted that other Ohio courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8–04–10, 2006–Ohio–6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003–Ohio–162.

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