               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



STATE OF FLORIDA,                             )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D17-4520
                                              )
RICKY DON WELCH,                              )
                                              )
              Appellee.                       )
                                              )

Opinion filed September 20, 2019.

Appeal from the Circuit Court for Manatee
County; Susan Maulucci, Judge.

Ashley Moody, Attorney General,
Tallahassee, and Katie Salemi Ashby,
Assistant Attorney General, Tampa, for
Appellant.

Howard L. Dimmig, II, Public Defender, and
Carly J. Robbins-Gilbert, Assistant Public
Defender, Bartow, for Appellee.



KELLY, Judge.

              The 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 DCA

2003).

             Mr. 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 belong there."

             As the 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




                                           -2-
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.

              The 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.

              Mr. 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.

              The 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




                                            -3-
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.

                 Under 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 of lawbreakers." Id. From this, an officer draws inferences and makes

decisions. Id.

                 The process does not deal with hard certainties, but with
                 probabilities. Long before the law of probabilities was
                 articulated as such, practical people formulated certain
                 common sense conclusions about human behavior; jurors as
                 factfinders are permitted to do the same—and so are law
                 enforcement officers. Finally, the evidence thus collected
                 must be seen and weighed not in terms of library analysis by
                 scholars, but as understood by those versed in the field of
                 law enforcement.

Id. The second element in the assessment of the whole picture is that "it must raise a

suspicion that the particular individual being stopped is engaged in wrongdoing." Id.


                                              -4-
             Here, the officer had "a particularized and objective basis for suspecting"

Mr. Welch of criminal activity. See id. at 417. It was shortly before midnight when the

officer observed Mr. Welch's prolonged presence at the entry box with his car engine

running and brake lights on and his subsequent failure to respond when a second

vehicle whose path he was blocking repeatedly flashed its lights and honked its horn.

When the officer approached Mr. Welch's car, he heard the engine slowly revving on

and off as if the accelerator was being depressed and then released and then he saw

Mr. Welch "passed out" behind the steering wheel. Despite the open car window, the

officer was initially unable to wake Mr. Welch. We conclude that these observations

provided the officer with an objective and particularized basis to suspect that Mr. Welch

was unlawfully operating his automobile under the influence of alcohol or narcotics and

thus, he was justified in conducting an investigatory stop. See id.

             Accordingly, we reverse the order granting Mr. Welch's motion to suppress

and remand for further proceedings.

             Reversed and remanded.



NORTHCUTT and ATKINSON, JJ., Concur.




                                           -5-
