TPD officer's traffic-stop could have gone either way

Defense attorneys differ in their interpretation of how a Tallahassee Police sergeant was treated last month during a traffic stop by a Florida Highway Patrol trooper.

Criminal defense attorneys said Tallahassee Police Sgt. David McCranie's position as a law-enforcement officer was the likely reason he was not arrested on suspicion of driving under the influence. McCranie was instead issued a citation for running two red lights. The trooper who pulled him over smelled alcohol on his breath, discussed his unusual behavior and asked McCranie to perform a field-sobriety test that was initially refused.

Some defense attorneys said the troopers' decisions were not unique, even for civilians, and that there was not probable cause to arrest the respected, veteran sergeant.

TPD Sgt. David McCranie investigated for FHP run-in

Others say McCranie, now the subject of a TPD internal affairs investigation, avoided arrest because he benefited from an unwritten code of professional courtesy to give breaks to fellow officers and public officials but not members of the public.

The May 23 traffic stop of McCranie in downtown Tallahassee was captured on video from Florida Highway Patrol dashboard cameras obtained by the Tallahassee Democrat. Troopers can be heard speculating on McCranie's level of intoxication after he initially refused to take a field sobriety test. The trooper who initated the traffic stop said he smelled alcohol on McCranie's breath.

"Had this not been a law enforcement officer in this jurisdiction, anyone else would have been arrested," said Tallahassee DUI attorney Josh Zelman.

Zelman said McCranie was repeating himself and not making sense at times in the more than one-hour dash cam video.

"Although he may not have been slurring, they had enough to arrest him," Zelman said.

Tallahassee attorney Zach Ward, who knows McCranie and regularly represents clients facing DUI charges, said his driving pattern, speech and behavior were normal enough to avoid arrest.

"The odor of alcohol is not enough to make a DUI arrest," he said. "I think ultimately the right thing happened here."

There are no straightforward rules about what prompts a DUI arrest, Ward said. A lot is left to the discretion of individual officers, who use slurred speech, odor, glassy eyes and other factors to make a determination.

A driver has the right to reject field sobriety exercises, but an officer can still make an arrest based on his or her suspicions of their impairment. In Florida, only after arrest, can officers demand a suspect take a breath test to measure blood-alcohol levels.

"I think there was probable cause for an arrest, yes, because what they're trained to look at is the totality of circumstances," Zelman said.

McCranie shouted at Trooper Christopher Powers while Powers was on the side of the street, just minutes before he was pulled over.

Zelman said McCranie was acting "unusual," especially when he got out of his vehicle and walked towards Powers with his hand in his back pocket after being stopped.

"The totality of circumstances would leave a reasonably trained officer to believe that he was impaired."

McCranie initially refused a field sobriety exercise, but agreed when troopers said they would have no other choice but to arrest him. A field-sobriety exam was conducted 55 minutes after he was pulled over.

In his eight years defending DUI cases in Tallahassee, Zelman said he's never seen a trooper allow a suspect that much time to change their minds.

"The fact that they allowed him to change his mind an hour later, they would never let anyone do that," Zelman said. "That is where I think he got special treatment."

Ward disagreed, saying it was appropriate in this case since Powers had to call in his supervisor, Sgt. Trerrance Chukes.

"Fifty minutes is not terribly long. The blood level is not going to be greatly affected either way," said Ward. "It's usually quicker, but it can take that long, it's not a problem."

Tallahassee attorney Sid Matthew said troopers stalled in order to let McCranie sober up.

"It appears that the delay of one hour was presumably for the purpose of allowing him to metabolize the alcohol," he said.

Powers, Trooper Juan Juarez and Sgt. Trerrance Chukes can all be heard on the dash-cam video talking about what to do with McCranie after the test.

Powers said he could smell alcohol on his breath, but all seemed satisfied with how McCranie performed in walking a straight line and standing on one foot.

"They were really stretching in this case in trying to talk their way up to (DUI)," Ward said. "I'd be very comfortable taking this case to trial."

Powers discussed what an arrest would mean for McCranie's career.

"I don't care if TPD decided to fire him," Powers is heard saying on the video.

Matthew is acutely aware of what he characterizes as an unwritten law enforcement code that gives leeway to public officials.

Last year, he represented FHP trooper Charles Swindle who was fired for his actions pulling over lawmakers on Interstate 10.

Swindle, also at FHP's Troop H, was fired after he cited state Reps. Charles McBurney and Mike Clelland in 2012 for failure to show proof of insurance instead of for speeding — a lesser, less-expensive citation. McBurney complained to Swindle's superior.

Matthew and Swindle argued his firing that the trooper's actions were all part of the patrol's unwritten code. Swindle was eventually reinstated by the Public Employees Relations Commission. Testimony and evidence entered in the challenge said law enforcement officers regularly cut breaks for fellow emergency-response officers and public officials.

"An ordinary citizen would have been taken right to jail," Matthew said. "There is no policy or statute that says an officer is above the law. In fact, the opposite is true, officers are held to a higher standard."

It's never stated whether McCranie passes or fails the field-sobriety test, a tactic officers use during traffic stops on purpose, Ward said. Instead, they will make note of different instances of the test.

FHP spokesman Lt. Jeff Frost said it's unclear whether McCranie drove himself home or if he got a ride. It would not be uncommon, according to Ward and Zelman, if he was given a ride even after not being given a DUI.

McCranie is still working with TPD while the internal investigation goes on, Officer Cleveland Allen, TPD spokesman said Thursday. Allen said he did not know when the investigation started.