Walk & turn, finger to nose, one leg stand: oh my! How Florida courts have defined field sobriety exercises.

• Author: Patel, Amar V.

INTRODUCTION

If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. (1) You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. (2) When law enforcement stops a vehicle based on a reasonable suspicion of DUI, probable cause must be established before making an arrest. (3) Field sobriety exercises ("FSEs") (4) are commonly used police procedures to establish that probable cause. (5)

Developing probable cause is of critical importance, not only because it is a prerequisite to a lawful arrest, but also because citizens who operate a motor vehicle in Florida are consenting to a blood, urine, (6) or breath test upon a lawful arrest for DUI. (7) Given that FSEs are an important tool in establishing probable cause for a DUI arrest, many Florida courts recently have faced the issue of what legal standard applies to a request for FSEs.

This article presents a compilation of Florida case law addressing the aforementioned issue. Part I discusses the background and dictates of the Fourth Amendment, as well as the definitions of "search" and "seizure." (8) Part II addresses the various theories that courts have established as to what standard is required for field sobriety exercises. (9) Part III concludes with a discussion of which legal standard is correct and urges the Florida Supreme Court to consider and clarify the standard. (10)

1. OVERVIEW OF THE FOURTH AMENDMENT

   1. BACKGROUND OF THE FOURTH AMENDMENT. (11)

      The Fourth Amendment to the United States Constitution provides:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (12) The purpose of the Fourth Amendment "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." (13) The United States Supreme Court has interpreted the text of the Constitution as a two-fold dictate requiring all searches and seizures be pursuant to a warrant (the warrant requirement) and conducted in a "reasonable" manner (the reasonableness requirement). (14) The protection of the Fourth Amendment is not triggered unless the government has engaged in a "search" or "seizure." (15)

   2. WHAT CONSTITUTES A SEARCH

      At a bare minimum, a search consists of a governmental intrusion into a constitutionally protected area. (16) However, in the cornerstone case Katz v. United States, the Court held "that the Fourth Amendment protects people--and not simply 'areas.'" (17) Justice Harlan in his concurrence articulated the now famous two-fold requirement for a Fourth Amendment search: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" (18)

      In the realm of DUI offenses, (19) the United States Supreme Court has found that an attempt to obtain nonconsensual blood or urine samples is a search requiring consent, a warrant, or exigent circumstances. (20) In Florida, statutory protections provide that blood may be requested upon a lawful arrest for DUI, or compelled by reasonable force where law enforcement has probable cause that a person caused serious bodily injury or death during the commission of a DUI. (21) However, unlike obtaining blood samples, there are no statutory provisions regulating the administration of field sobriety exercises. (22) Thus, in evaluating the constitutionality of FSEs, it is necessary to look solely to constitutional principles.

   3. WHAT CONSTITUTES A SEIZURE

      A person is seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances, a reasonable person would have believed that he or she was not free to leave. (23) By its plain language, the Fourth Amendment proscribes only unreasonable seizures. (24) In determining reasonableness, courts must balance '"the nature and quality of the intrusion ...' against the countervailing governmental interests at stake." (25) The test is an objective one, made from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." (26)

      During a routine traffic stop, citizens are "seized" and therefore these brief encounters implicate the Fourth Amendment. (27) The detention is lawful, however, if the police have either (1) probable cause to believe that a driver has committed a traffic violation, (28) or (2) reasonable suspicion that criminal activity is afoot. (29) Accordingly, when a person is seized during a DUI investigation, the seizure is reasonable so long as the person was stopped based on a violation of the traffic code or reasonable suspicion of impairment. (30)

2. FIELD SOBRIETY EXERCISES: WHAT IS THE STANDARD?

   1. THEORY ONE: FSES REQUIRE VOLUNTARY CONSENT

      Recently, a number of Florida courts have held that law enforcement must obtain voluntary consent before requesting FSEs. (31) A prime example can be found in State v. Lynn. (32) In Lynn, the arresting officer was conducting a DUI investigation and told the defendant to follow his instructions and commands in performing FSEs. (33) The court found that the defendant was merely acquiescing to the officer's apparent authority, and therefore any consent given was not voluntary. (34) Accordingly, the court suppressed the results of the FSEs. However, the opinion did not partake in even brief discussion of any factors bearing on consent, such as the number of officers present, whether they were armed, the age and intelligence of the defendant, or any other potential considerations. (35) The Lynn court also failed to explain why consent was necessary, i.e., whether there was a "search" actually triggering the Fourth Amendment in the case of FSEs. (36)

      In State v. Earnshaw, (37) a different court addressed the issue with a similar result. In Earnshaw, after a lawful traffic stop, the responding officer noticed possible indicators of impairment and accordingly told the defendant, "I want to do a couple of exercises real quick to test your ability to drive ... what I want you to do is ..." (38) The court found that the manner in which the officer phrased his directive gave the defendant no occasion to refuse and the defendant did not voluntarily consent to the performance of the exercises. (39) The court stated, without explanation, that in order to conduct FSEs and a search, the officer must obtain valid consent. (40) Again, the court declined to engage in a dialogue about whether performance of simple movements on the side of a public highway could constitute a "search" under Katz. (41)

      In State v. McKenzie (42) yet another county court found that in order to conduct FSEs, law enforcement must obtain voluntary consent. (43) The court stated that the defendant's performance of FSEs was not voluntary because the language used by the arresting officer in instructing, rather than asking, the defendant to perform the exercises was consistent with the defendant's acquiescing to the officer's apparent authority. (44) Once again, the court neglected to discuss the consent factors or why the performance of FSEs constituted a "search" in the first place. (45)

      In State v. Hauserman, (46) the court granted a defendant's motion to suppress finding that the State failed to meet its burden in establishing that the defendant had voluntarily consented to the performance of FSEs. (47) In reaching that conclusion, the court relied on Taylor v. State. (48) The court reasoned that the FSEs in Taylor were constitutionally valid because the exercises were explained in "some" detail and defendant was "asked" rather than instructed to perform the exercises. (49) Because the officer directed, instead of requested, the defendant to perform FSEs, the court found the defendant's performance to be nonconsensual. (50) Accordingly, the Hauserman court concluded that consent is a requirement of requesting FSEs. (51)

      Countless courts have followed the reasoning above and suppressed the results of FSEs based upon a finding that the exercises were not consensual. (52) However, none of the cases found by these authors addresses the most critical question in the "consent" analysis: whether the performance of FSEs is a "search" which requires a warrant or some exception to the warrant requirement--here, consent. (53)

   2. THEORY TWO: FSES JUSTIFIED BY EXIGENT CIRCUMSTANCES

      Few Florida courts have relied on the decision of Schmerber v. California, (54) in holding that, although FSEs trigger Fourth Amendment protection, exigent circumstances render the exercises constitutionally permissible. (55) In Schmerber, the issue was whether law enforcement could obtain a nonconsensual blood sample from a DUI suspect. (56) The Court concluded that law enforcement properly required a nonconsensual blood sample from the defendant because there was probable cause for a DUI arrest, and the officers reasonably believed that the evidence would be lost if the sample was not quickly withdrawn. (57)

      The Court said:

      We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. (58) It seems that the principles set forth in Schmerber, allowing law enforcement to require a blood sample (drastically more intrusive than the performance of FSEs) upon...