Stephen Shelgren, Appellant, v. State of Florida, Appellee. (2024)

Affirmed.

I agree that we should affirm the order denying suppression in this case. I write to address the parties’ obligations when stating the facts of a case in an appellate brief.

“A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Terry v. State, 668 So. 2d 954, 958 (Fla. 1996). This standard must inform the statement of facts that the parties include in their briefs to this court. As we have noted, “[a]n appellant's statement of the facts must not only be objective, but must be cast in a form appropriate to the standard of review applicable to the matters presented.” Thompson v. State, 588 So. 2d 687, 689 (Fla. 1st DCA 1991). Appellant's brief falls woefully short of this obligation.

This appeal involves a challenge to an order denying suppression of evidence that Appellant Stephen Shelgren was driving under the influence. Shelgren argued that the officer did not have a reasonable ground to open his car door, which led to the discovery of Shelgren's intoxication. The State contended that the officer opened the door during a legitimate welfare check, so that his discovery of Shelgren's intoxication did not violate Shelgren's Fourth Amendment rights. The court denied the motion to suppress.

During the early morning hours of March 24, 2022, Fort Walton Beach Police Officer Carlderius Hansford, while on patrol, responded “to a call for service regarding a welfare check to a male passed out behind the wheel” of a car. The car was running. Upon arrival at the location, Officer Hansford activated his vehicle's “take-down lights,” which are “bright lights on the light bar.” Officer Hansford parked in front of Shelgren's vehicle “head on.” With the take-down lights illuminating the interior of Shelgren's vehicle, Officer Hansford activated his siren twice “in attempts to try and get [Shelgren] to wake up.” Shelgren failed to respond. Officer Hansford then exited his vehicle to approach Shelgren's car.

These facts are essentially undisputed. But Shelgren describes the ensuing facts in his initial brief as follows:

Hansford testified that when he approached Shelgren's car, he could see that he was breathing, alive, and that there was no blood. (R. 139) He also did not observe any drugs or open containers in the vehicle, and he did not smell any alcohol. (R. 142) Hansford agreed that prior to opening the car door, there was no basis for him to believe that there was a medical emergency. (R. 141) He also agreed that, prior to opening the door, Shelgren was not doing anything illegal; he was merely sleeping in his car. (R. 142) Hansford testified that when he approached Shelgren's car, he simply had a hunch that Shelgren was “passed out” from drinking. (R. 139) Hansford candidly admitted that prior to opening the car door he did not perform any caretaking functions. (R. 139).

Shelgren's statement of the facts lacks candor as it inaccurately suggests that Officer Hansford conducted a thorough investigation and concluded that Shelgren was in no need of assistance prior to opening his car door. In order to make this contention, Shelgren relies exclusively on his own cross-examination of Officer Hansford at the suppression hearing, and does not include in the selection above a single citation to Officer Hansford's direct or redirect testimony, even though it plainly indicates that the reason for the encounter was Officer Hansford's concern for Shelgren's wellbeing. Officer Hansford's direct examination testimony at the suppression hearing is clear on this point:

[PROSECUTOR:] What -- what was your thought process when he was slumped over in the car not responding to the lights or the sound.

[OFFICER HANSFORD:] I wanted to make sure he was okay.

[PROSECUTOR:] All right. Did you think he was not okay?

[OFFICER HANSFORD:] Correct. Yes, sir. I did not think he was in -- okay.

․

[PROSECUTOR:] Officer, why was it so important to wake him up?

․

[OFFICER HANSFORD:] To make sure he was okay and alive.

After exiting his patrol vehicle, Officer Hansford “went over to [Shelgren's] vehicle[,] opened his door[,] and tried to wake him up.” The video footage from Officer Hansford's bodycam, which was admitted at the suppression hearing, shows that Officer Hansford immediately opened the car door the moment he arrived at the car. As soon as he opened the door, Officer Hansford “observed the odor of alcoholic beverage coming from the interior of [Shelgren's car[.]”

As with the “take-down lights” and the two siren blasts, Shelgren did not respond to Officer Hansford's attempts to wake him. Officer Hansford then “did sternum rubs, just trying to shake him, wake him up.” Even though he eventually began “to come to,” Shelgren was “lethargic [and] seemed disoriented as to where he was.” When he spoke, Shelgren's “speech was slurred.” The bodycam video confirms that Shelgren was very difficult to arouse.

Officer Hansford's redirect testimony emphasizes these observations. He testified on redirect that, when he arrived on scene, he “didn't know what [he] had at first.” Officer Hansford continued:

[PROSECUTOR:] Why were you trying to wake him up?

[OFFICER HANSFORD]: To get his attention.

[PROSECUTOR:] And why was that important?

[OFFICER HANSFORD:] Because I didn't -- I didn't know if he was breathing or if he was alive or what was going on. So my first thing was to hit my take down and try to wake him up.

․

[PROSECUTOR:] And -- what were you afraid might be happening at that time?

[OFFICER HANSFORD]: Maybe that he was injured.

(emphases supplied).^*

As stated, Shelgren cites his own cross-examination of Officer Hansford instead of any of this evidence. The primary cross-examination from which the facts of Officer Hansford's knowledge in the brief are drawn are the following exchanges:

[DEFENSE COUNSEL]: Okay. So we're not operating under the fact that there's any emergency situation, right? There's – he's breathing, he's alive, there's no blood. He's just – in your – I guess your hunch of criminal activities, just passed out, right? So we're not operating that you're – was that a yes?

[OFFICER HANSFORD]: Yes.

․

[DEFENSE COUNSEL]: Okay. So when we testified earlier that we were going out for a welfare check, which is just simply in the CAD report, there's really no basis or fact to create a medical emergency, or really anything that you can positively identify upon your arrival in that parking lot.

[OFFICER HANSFORD]: No.

Again, these exchanges constitute the primary basis for Shelgren's contention that the officer believed that Shelgren was simply slumbering peacefully in his (running) vehicle and not in any need of assistance. In fact, the exchanges are simply garbled, compound statements from Shelgren's counsel, followed by one-word responses from Officer Hansford.

To demonstrate the impropriety of Shelgren's statement of the facts, consider the following chart.

Initial Brief Actual Testimony “Hansford agreed “I didn't know if he that prior to opening was breathing or if he the car door, there was was alive or what was no basis for him to going on.” believe that there was a medical emergency.” “[It was so important to wake him up t]o “He also agreed that, make sure he was okay prior to opening the and alive.” door, Shelgren ․ was merely sleeping in his “[I was afraid that car” m]aybe he was injured.” “I did not think he was ․ okay.” “I did know what I had at first.”

These comparisons demonstrate a lack of candor in the initial brief. Citing the cross-examination passages as facts, while ignoring Officer Hansford's contrary direct testimony, fails to comport with our admonition that an appellant's statement of the facts must be objective and must recognize the proper review standard, which in this case is our obligation to interpret the evidence in a manner most favorable to sustaining the trial court's ruling.

While Shelgren offered an inappropriate and misleading statement of the facts, it is puzzling that the State did not in any way dispute the propriety of Shelgren's statement of facts, stating that it was “generally supported by the record.” Nonetheless, we are generally not bound by an appellee's failure to contest any part of the appellant's argument. Because trial court orders are presumed correct, we are obligated to determine whether the record supports the trial court ruling, regardless of whether the appellee challenges incorrect contentions of the appellant. In doing so, I note that the record clearly supports the trial court's conclusion that Officer Hansford did not violate Shelgren's Fourth Amendment rights when he opened Shelgren's car door and detected evidence that Shelgren was driving under the influence. Accordingly, we are correct to affirm.

FOOTNOTES

FOOTNOTE.   With regard to the video footage, Shelgren gives a cursory description of the footage as follows:On the video, Hansford pulled up, beeped his siren in two very short bursts, and immediately exited his patrol vehicle. He approached Shelgren's car and observed him asleep. Hansford did not announce his presence or knock on the window. He made no attempt at waking Shelgren up or to announce his presence. Instead, he opens the door right away.To say the least, this description is not a candid representation of the video evidence.

Per Curiam.

B.L. Thomas and Bilbrey, JJ., concur; and Winokur, J., concurs with opinion.