       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             JOANNE BADEN,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-1893

                             [August 19, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 502013CF008885A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nicholas I. Igwe,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Joanne Baden appeals the order denying her motion to
suppress evidence prior to a final judgment of adjudication on her plea of
no contest to felony DUI and refusal to submit to a chemical or physical
test. Finding no error, we affirm.

                               Background

    After receiving a “BOLO” call from another officer related to a female
riding a scooter, a Palm Beach County Sheriff’s Office Deputy observed
Appellant riding a scooter, at approximately 2:00 a.m., on a designated
roadside parking area alongside a sidewalk. She testified that as Appellant
rode the scooter, the front tire of the scooter kept hitting and bouncing off
the curb. The Deputy also noticed that there was a pedestrian walking on
the sidewalk next to Appellant to whom the latter was talking as she was
riding the scooter. Each time Appellant hit the curb, the pedestrian would
flinch and step further away.
   The Deputy became concerned about Appellant’s ability to drive due to
the number of times that the scooter was hitting the sidewalk and
Appellant’s failure to look where she was going as she continued to talk to
the pedestrian next to her. The Deputy further testified to being afraid
Appellant was either going to enter the sidewalk and strike the pedestrian
or run into the rear of a vehicle parked approximately twenty-five to thirty
feet ahead in Appellant’s lane of travel. Accordingly, the Deputy activated
the patrol car’s flashing lights and stopped her car. Appellant stopped the
scooter. The Deputy observed Appellant “still wobbling back and forth on
the scooter.” The Deputy inquired whether Appellant was all right, but
received no response. A fellow officer who arrived on the scene after
Appellant had been stopped detected a “strong smell of an unknown
alcoholic substance emitting from” Appellant and that she had bloodshot
glassy eyes and her speech was slurred, prompting the officer to call a
third officer to conduct a DUI investigation.

     During the course of the hearing on the motion to suppress, the Deputy
testified the conduct that she observed from Appellant constituted careless
driving under Florida law. The Deputy stated that besides the traffic
violation, her main reason for stopping Appellant was out of concern that
Appellant might have had something physically wrong with her, stating
that “either [Appellant] was impaired, not feeling well, not paying attention
. . . there was something going on.” The Deputy further testified that, the
BOLO aside, she would have stopped Appellant based solely on her
observation of Appellant’s continuous striking of the curb and Appellant’s
“erratic driving.”

   At trial, Appellant moved to suppress evidence related to the officers’
observations following the stop and her refusal to submit to a chemical or
physical test, arguing that the stop was an unlawful seizure. The trial
court denied Appellant’s motion and sentenced Appellant following her
plea of no contest.

                                 Analysis

   When reviewing a denial of a motion to suppress, this Court defers to
the trial court’s factual findings, but reviews legal conclusions de novo.
Castella v. State, 959 So. 2d 1285, 1289 (Fla. 4th DCA 2007). In its
evaluation, this Court must view the evidence in a light most favorable to
sustaining the trial court’s ruling. Nicholas v. State, 857 So. 2d 980, 981
(Fla. 4th DCA 2003).

  The stopping of a motorist is reasonable and constitutionally valid
“where a police officer has probable cause to believe a traffic violation has

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occurred.” Hurd v. State, 958 So. 2d 600, 602 (Fla. 4th DCA 2007). An
officer has probable cause “where the facts and circumstances within an
officer’s knowledge and of which he had reasonable trustworthy
information are sufficient in themselves to warrant a [person] of reasonable
caution in the belief that an offense has been committed.” Stone v. State,
856 So. 2d 1109, 1111 (Fla. 4th DCA 2003) (quoting State v. Byham, 394
So. 2d 1142, 1143 (Fla. 4th DCA 1981)).

   When determining whether a traffic stop is constitutional, an objective
test is used, ignoring the officer’s subjective knowledge, motivation, or
intention, and asking only whether probable cause for the stop existed.
Hurd, 958 So. 2d at 602. “The test is whether a police officer could have
stopped the vehicle for a traffic violation.” Id. (emphasis added). In Hurd,
the officer stopped the defendant after following him for about two miles
and observing the defendant cross over a solid white line without using
his turn signal. Id. There were no other cars on the road at the time. Id.
We held that the officer had no probable cause to warrant the stop since
Florida law required a signal only when other vehicles are affected by the
turn. Id. at 603. Similarly, in Donaldson v. State, 803 So. 2d 856, 858
(Fla. 4th DCA 2002), the defendant was pulled over and given a written
warning for an improper start after an officer heard his tires squeal as he
pulled out of a parking lot. We held that the officer did not have probable
cause to believe the defendant committed a traffic infraction because,
absent other articulable facts, squealing tires do not constitute a traffic
infraction or other “danger to public safety.” Id. at 859.

   Unlike Hurd and Donaldson, the Deputy in the instant case observed
Appellant violate traffic laws. Section 316.1925(1), Florida Statutes
(2013), states: “Any person operating a vehicle upon the streets or
highways within the state shall drive the same in a careful and prudent
manner . . . so as not to endanger the life, limb, or property of any person.
Failure to drive in such manner shall constitute careless driving and a
violation of this section.” Appellant’s operation of her vehicle (the scooter)
on the street endangered the pedestrian on the sidewalk, the parked cars
ahead of her, and Appellant herself.

   Alternatively, even where a driver is not committing a traffic infraction,
an officer may stop a driver if the officer has a founded suspicion that the
driver is under the influence. Nicholas, 857 So. 2d at 981; Dep’t of
Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla.
2d DCA 1992). When determining whether an officer has “a reasonable or
well-founded suspicion of criminal activity so as to justify an investigatory
stop, ‘the totality of the circumstances - the whole picture - must be taken
into account.’” Finizio v. State, 800 So. 2d 347, 349 (Fla. 4th DCA 2001)

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(quoting Tamer v. State, 484 So. 2d 583, 584 (Fla. 1986)).

    Relevant factors used to determine if reasonable suspicion exists
include: “[t]he time; . . . the location; . . . 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.” Santiago, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006)
(quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)).
Erratic driving suffices to establish a founded suspicion and to validate a
DUI stop. DeShong, 603 So. 2d at 1352. What establishes one’s driving
as “erratic” is determined on a case-by-case basis as there is no statutory
definition of erratic driving. Nicholas, 857 So. 2d at 982. In the case at
hand, Appellant was observed, at about 2:00 a.m., driving a scooter in a
careless manner, seemingly oblivious to the parked cars right ahead of
her. As such, we hold that the officer had reasonable suspicion to stop
and question Appellant.

                                 Conclusion

   After considering the totality of the circumstances, the trial court’s
denial of Appellant’s motion to suppress directed at a stop “in order to
determine if she was ill, injured, impaired, or simply operating the scooter
in a careless manner” was appropriate. Accordingly, we affirm.

   Affirmed.

DAMOORGIAN and GERBER, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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