The Second Question: Florida Caselaw, Week of September 11, 2026

Seven thirty on a weeknight, an apartment complex in Hillsborough County. Somebody calls in a man passed out in a truck. Deputies find him reclined in the driver's seat. Engine running, headlights on, music loud, the truck parked crooked over the lines. They knock on the passenger window. He's breathing. He doesn't move. They keep knocking. He sits up.

Then a deputy tells him to roll down his window. And that one sentence is the whole case.

The judge said that sentence turned a welfare check into a stop with no reasonable suspicion behind it, and threw out everything that came after. This week the Second District put it all back.

I'm Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida's appellate courts handed down this week, case by case, for the lawyers who'd rather hear them than read them.

Here's what I noticed reading this week's opinions. Nearly every one of them turned on a second question, the one that comes after the first answer. The deputies hadn't asked the sleeping driver anything yet, so the check wasn't over. A judge answered one evidence question and never asked the second one, and a murder conviction came back. A lawyer heard "I don't want a trial" and never asked the next question, and a manslaughter plea came back. A jury found possession, and nobody asked whether it was the kind of possession the enhancement statute means. So that's the theme. The second question. Let's get into it.

The first case is the one I started with. State of Florida against Brian Fuchs, Second District, out of Hillsborough County, Judge Tibbals below. Judge Kelly wrote it, with Judges Black and Guard. A State appeal from a suppression order, and the State won. I was a public defender in Hillsborough before I opened my firm, so I know these courtrooms and these deputies, and I've stood next to a lot of clients who were found asleep in a parked car.

Three deputies responded to the call. Fire Rescue was already there. The first two went to the passenger side. The man was reclined, apparently asleep, breathing, not responding to the knocking. The deputy testified he couldn't tell whether the man was impaired or having a medical problem without talking to him. After a few seconds the man woke up, sat up, and put his seat upright. A third deputy said he looked disoriented, and asked him to lower the driver's side window. The window came down and the deputy got a strong odor of alcohol, glassy bloodshot eyes, slurred speech.

The trial judge found that before the window directive, nobody had articulated any reasonable suspicion of a crime, and under a 2008 Second District case called Greider, telling him to roll down the window converted a consensual welfare check into an investigatory stop. Suppressed.

The Second District said the judge read Greider too broadly, and the distinction is the whole doctrine in one paragraph. A welfare check is a consensual encounter. It lives under the community caretaking doctrine and doesn't trigger the Fourth Amendment. But once the officer's concern for the person is satisfied, the check is over, and anything after that needs reasonable suspicion. In Greider, the officer had already talked to the driver through the passenger window, the driver said he was fine, and the officer testified he didn't think any crime was going on. Then he walked around and ordered the driver's window down anyway. That was a seizure. Here, nothing had been said yet. In the court's words, there was no communication between Fuchs and the deputies that would have dispelled any safety concerns before the deputy directed him to roll down the window. Sitting up isn't an answer. It was impossible to assess his condition without speaking to him, and the court cited Daniels, another Second District case, for the rule that officers may detain to resolve ambiguities about suspicious but lawful behavior. Reversed and remanded.

One footnote you should not skip. The body camera video was not in the record on appeal. So the deputies' account of those thirty seconds stood on its own. If you litigate one of these, the video goes into the suppression record whether the State offers it or not, because the case is decided in the seconds between the knock and the window.

This is the case of the week for DUI lawyers, and the deep dive at the end is about exactly this question: when does a welfare check end. Hold that thought.

The next case is Wellons against the State, Fourth District, out of Palm Beach County, Judge Kastrenakes below. Judge Ciklin wrote it, with Judges Conner and Klingensmith. First-degree murder with a firearm, reversed for a new trial, because the trial court answered one evidence question and stopped.

An argument between two groups at the beach. Somebody fired into a crowd and a bystander was killed. The State's theory was that Wellons, sixteen years old, was the shooter. A dive shop camera caught three young men running near where the shell casings were found, and the State said the video showed Wellons carrying a gun. Nobody on the video is firing one. No gun was recovered. The one witness who saw somebody shooting couldn't say who. The defense: he didn't shoot anyone, and he ran because the other group was threatening him and his brothers.

Before trial the State moved to exclude one piece of evidence: about a month earlier, the same group had fired twenty-five bullets into the house where Wellons lived. The defense wanted it in to explain why he ran. The trial court excluded it as reverse Williams rule evidence, evidence that somebody else committed the crime, and found the two shootings weren't similar enough to qualify.

The Fourth District said that ruling was right as far as it went. But the court never separately asked whether the same evidence was admissible for a different purpose, explaining the flight, which was the center of the defense. A defendant gets the benefit of the doubt on relevance. The State argued the issue wasn't preserved because the judge called the ruling tentative; the court said on this record it functioned as a definitive exclusion. And it wasn't harmless, because the State used the flight in closing and discounted the claim that the boys were scared. The court's line: the excluded evidence would not have compelled the jury to accept his explanation for fleeing. It merely would have permitted the jury to consider it. New trial.

The takeaway is about how you proffer. When evidence has two possible purposes, name both, separately, on the record, and get a ruling on each. The opinion says counsel could have done a better job articulating the relevance, and reversed anyway. Don't count on that.

The next case is Ruiz against the State, Second District, out of Manatee County, Judge Dees below. Judge Guard wrote it, with Judges Kelly and Black. A plea withdrawal, and it's about the question a lawyer didn't ask.

Ruiz was sixteen when he was charged with manslaughter with a firearm in one case and carrying a concealed firearm in another. He pled open to both. Before sentencing he moved to withdraw. At the hearing his former lawyer testified that at their first meeting Ruiz said he didn't want a trial, so the lawyer never discussed suppressing Ruiz's statements to detectives, even though he believed there was a legitimate Miranda issue. He thought a suppression motion would run against the client's wish not to go to trial. The trial court listened to the recorded interview, found no good cause, denied the motion, and sentenced him to twenty years.

The Second District reversed the manslaughter judgment. Rule 3.170(f) says the court may in its discretion, and shall on good cause, permit withdrawal before sentencing, and good cause includes a plea infected by misapprehension or ignorance. The court adopted the Fifth District's rule from a 2005 case called Nicol: when the claim is that counsel never advised the defendant about a possible suppression motion, the likelihood that the motion would have won is not relevant. The only question is whether the defendant was acting on misapprehension or ignorance. The court said it wasn't clear why the trial judge listened to the interview at all. Ruiz was wholly unaware suppression was possible. Good cause. The concealed firearm plea stands.

Two takeaways. A client saying he doesn't want a trial is not a waiver of the advice; the suppression conversation happens anyway, and it gets documented. And if you're moving to withdraw on this ground, the hearing is about what the client knew, not whether the motion would have won, and you say that before the judge starts listening to the tape.

Quick pause, colleague to colleague. My firm handles DUI, criminal defense, and personal injury across Tampa Bay. If a case walks through your door that you'd rather send out, call or text 727-472-8096. I gladly accept referrals.

The next case is Hamilton against the State, Second District, out of Sarasota County, Judge Moss below. Judge Smith wrote it, with Judges Northcutt and Guard. Felon in possession. The gun was wedged between the driver's seat and the console of the car he was driving. The conviction stands; that's constructive possession and it's enough under 790.23. But the court threw out the three-year mandatory minimum, and the reason is a definition.

The three-year minimum under 775.087(2) requires actual possession, and the jury found actual possession. But 775.087(4) defines possession for that enhancement: carrying the firearm on the person, or having it within immediate physical reach with ready access with the intent to use it during the offense. The State proved neither, and on appeal it didn't argue otherwise. It rested on the verdict. No factual basis, minimum mandatory reversed, corrected sentence without him present.

Possession, yes. Possession as the enhancement statute defines it, never asked. If you have a felon in possession file with a three-year minimum and the gun was in the car rather than on the client, read the verdict form and 775.087(4) side by side.

Hamilton also has a footnote that connects to four other opinions this week: Mullins, Tolliver, Oakley, and Brown, all Second District, all raising the same argument, that a six-person jury in a noncapital case violates the Sixth Amendment. Everybody's raising it because on June 15 the United States Supreme Court granted certiorari in a Florida case called Kian, and the question presented is whether to overrule Williams against Florida, the 1970 decision that approved Florida's six-person juries.

All five lost this week, and the explanations tell you how to handle the issue while Kian is pending. In Mullins, Judge Labrit wrote that a grant of certiorari decides nothing and overrules nothing, and that until the Supreme Court overrules Williams, the district court follows it. The opinion calls the argument directed to the wrong court. In Tolliver, Judge Kelly wrote that the court has been getting a steady stream of briefs asking it to hold cases in abeyance until Kian is decided, and that as a court it has concluded the better course is to decline and let appellants pursue the argument in the United States Supreme Court, where a handful of Florida cases are already waiting.

The practice point: in Hamilton, Mullins, and Oakley the issue came up for the first time on appeal, so the court reviewed only for fundamental error, and it isn't. Mullins has a footnote saying the court expresses no opinion on what a merits decision in Kian would mean for a case still pending on direct review. That's a hint. If you want your client to benefit if Williams falls, object to the six-person jury in the trial court, by name, before the jury is sworn, and keep the case alive on direct review. Raised first on appeal, you get a one-paragraph affirmance and a "but see Kian."

Two quick sentencing notes. Edwards against the State, Second District, Sarasota: on a probation revocation, the scoresheet suddenly carried priors from 2003 to 2007 that weren't on the original scoresheet, and the judge sentenced at the bottom of it. The ten-year lookback runs from the primary offense, not from the violation, and once the defense challenged those priors under rule 3.800(b), the State had to prove them and didn't. Revocation stands, resentencing ordered. And Gunter against the State, Sixth District, Polk County: a hundred and fifty dollars in State Attorney costs with no proof above the hundred-dollar floor, reversed to a hundred. Fifty dollars, and it took an appeal. Read those orders.

Now a case where the State conceded error and won anyway. Auguste against the State, Fourth District, out of Broward County, Judge Fein below. Judge Shaw wrote it, with Chief Judge Gerber and Judge May. First-degree murder. The defendant testified, admitted five prior felonies, and told the jury the only reason he was going to trial this time was that he didn't murder anyone. The State said that opened the door to the nature of the priors, and the jury heard aggravated battery, aggravated battery with a firearm twice, burglary of a dwelling, and grand theft, and heard them again in closing.

On appeal the State conceded the door wasn't open. Harmless, because he had confessed to the facts on the stand: followed the victim home the night before, came back armed the next night, covered the plate, hid behind a car, and confronted him. Lying in wait is premeditation. Affirmed. Why it's worth your time: the concession. The Fourth District case is Ross, from 2005, the Third District's is Hierro, and if a prosecutor wants the nature of priors in because your client "minimized" them, the State's own appellate lawyers just told the Fourth District that doesn't work.

The rest of the week in one breath. Three affirmances citing the Supreme Court's decision in Maye from May, which holds that rule 3.800(a) is not the vehicle for an Apprendi claim. And two State appeals in the First District, Bennett and Richardson, affirmed without opinion. The State appealed and lost, twice, without a word.

One for the appellate lawyers. Clark against the State, First District, affirmed on an Anders brief, but Judge Neff wrote a thirty-page concurrence arguing that Florida's rule making the district court comb the record for error when appointed counsel finds none was never required by the Constitution, and the concurrence refers it to the Appellate Court Rules Committee. If you handle appointed appeals, that's a rule change coming, and the concurrence is the brief for it.

The injury side had one real opinion, and it's a good one for anyone who handles UM claims. Progressive against Heimler, Fourth District, out of Indian River County, Judge Cox below. Associate Judge Coates wrote it, with Judges Shepherd and Lott.

A crash in 2022. The other driver had a ten-thousand-dollar liability policy. Heimler had five hundred thousand in uninsured and underinsured coverage with Progressive. His first lawyer settled with the other driver's carrier for the ten thousand and signed a release, without Progressive's consent and without a waiver of subrogation. The statute, 627.727(6)(a), says you give the UM carrier written notice of the proposed settlement by certified mail, and it has thirty days to authorize it or keep its subrogation rights. That didn't happen. New counsel tried to unwind it and sent the ten thousand back, and the trial court later found the settlement was never actually rescinded. Heimler sued Progressive, and Progressive asked to rescind the policy.

The rule is forty years old: an unauthorized settlement is presumed to prejudice the UM carrier, and the insured has to prove there was none, usually by showing the other driver was insolvent. The parties fought over whether the test is "probable insolvency" or "is and will remain judgment proof," and the court's answer is the best line of the week: no new standards emerge from those opinions, and, quoting Justice Gorsuch, we should not read judicial opinions like statutes. The test in one sentence: would a reasonably prudent insurer, told about the settlement, have approved it, or rejected it and gone after the other driver expecting to come out ahead? Here the other driver was a hairstylist clearing about twenty thousand a year, whose work van was totaled in the crash, whose husband works at Walmart, and who had gotten a settlement of her own from the crash and spent it. No prejudice. Affirmed.

Two takeaways. Before anyone signs a release with the tortfeasor's carrier in a case with UM exposure, the certified letter goes to the UM carrier and the thirty days run. The first lawyer skipped it and the client nearly lost half a million dollars of coverage over a ten-thousand-dollar check. And if you inherit a file where it's already been skipped, the fix is a trial on the tortfeasor's finances, with the tortfeasor on the stand.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn't do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it's the welfare check. What it allows, and the question that decides every one of these cases: when does it end.

Start with the three levels. The Florida Supreme Court in Popple, in 1993, said there are three kinds of police-citizen encounters. A consensual encounter, where you're free to leave and the Constitution isn't involved. An investigatory stop, which needs a well-founded, articulable suspicion of criminal activity. And an arrest, which needs probable cause. A welfare check sits on the first level. Florida courts put it under the community caretaking doctrine, which comes from a 1973 Supreme Court case called Cady, and the Second District has said flatly that welfare checks are consensual encounters that don't involve constitutional implications. An officer can walk up to a parked car and check on the person inside without suspecting anything.

But it has a scope, and the scope is its purpose. The First District's phrasing, which the Fourth District adopted last November and the Second District leaned on this week: the purpose of a welfare check regulates its scope. Without reasonable suspicion that criminal activity is afoot, the welfare check should end when the need for it ends. So every one of these cases comes down to a moment: the moment the concern was answered. Before it, the officer is a caretaker and can do what a caretaker reasonably does. After it, the officer is an investigator and needs reasonable suspicion, and without it the encounter is over.

Now run the Second District's four cases across that line, because together they're a map.

Greider, 2008. Officer sees a car parked legally in a park at night with towels over the windows. He goes to the passenger side, the driver rolls it down, says he's fine. The officer testifies that dispelled his concern and he didn't think a crime was happening. Then he walks around and orders the driver's window down. That's a seizure. The question had been answered. Suppressed.

Dermio, 2013. Deputy finds a car running in a bar parking lot at three thirty in the morning, the driver asleep with a phone wedged on his shoulder. She taps the window. He wakes up incoherent, out of it. She asks for the window three times. No response. She opens the door. The court said opening the door was a continuation of the welfare check, because her concern had not been alleviated. He wasn't answering. The question was still open. Denied.

Daniels, 2022. A citizen calls in a man asleep in a truck, headlights on, at eight thirty at night. But the truck isn't in a parking space. It's sitting in the entrance of a business lot, facing out, like he was about to pull onto the road. Deputies call EMS. EMS clears him. Then a DUI deputy arrives and the investigation starts. The defendant said: the check was over when EMS cleared me, and nothing else gave you reasonable suspicion. The court agreed the check was over. But the location of the truck, the direction it faced, and the headlights at night made his "I pulled over to sleep" explanation implausible. That left two possibilities, medical or impaired, and when EMS eliminated one it strengthened the other. An ambiguity officers may detain to resolve. Denied. But the court said out loud that if he'd been found in a regular parking spot, asleep, headlights on, even with the engine running, it would have had to reverse, and cited its own cases for that: Danielewicz from 1999, and Delorenzo from the Fourth District, both sleeping drivers in legal spaces with the engine running, both suppressed, because the officer never testified to anything suggesting illness or impairment. Chief Judge Morris concurred to say the State barely got there. One witness. Not the caller, not the first deputies, not EMS. A very close case, and the State should bring its strongest evidence next time.

And Fuchs, this week. Truck crooked over the lines, engine running, lights on, music loud, driver unresponsive to knocking. He sits up. Nobody has spoken. Deputy asks for the window. No communication had dispelled the concern, so the check was still running, and the window request was inside it. Denied.

Put those four on a line. If the driver has answered, the check is over. Greider. If the driver can't answer, the check continues, and it can include opening the door. Dermio. If the driver has been medically cleared, the check is over, and what happens next depends on whether the facts before the clearance were ambiguous enough to detain him. Daniels. And if nobody has spoken yet, a request to lower the window is part of the check. Fuchs. The dividing line in every case is the same. Has the officer gotten the answer to the question he came to ask.

Two more cases widen the frame. State against Leiby, Fourth District, last November. A daughter calls 911 to say her father left the house drunk with her two younger siblings in the car, and she's tracking his phone. The officer finds the car leaving a drive-through, pulls it over, and blocks it in. No bad driving observed. The trial court suppressed; the Fourth District reversed. Two things worth knowing: a welfare check can be about the passengers, not just the driver, and the officer isn't required to use the least intrusive method. A seizure inside a welfare check has to be commensurate with the perceived emergency, and blocking a suspected drunk driver's car to check on two small children was. A fair criticism of that opinion is in this year's Masters of DUI materials, in Eilam Isaak's case law update: the court never analyzed the case as what it plainly was, a citizen informant tip that would have justified a stop under Navarette, and it never mentioned Caniglia. Which brings me to the Supreme Court.

Caniglia against Strom, 2021, unanimous. Police did a welfare check at a house. The man agreed to go to the hospital for a psychiatric evaluation, on the condition that the officers not take his guns. Once he left, they went inside and took them. The First Circuit said community caretaking covered it. The Supreme Court said no. Cady was about a car. What is reasonable for vehicles is different from what is reasonable for homes, and recognizing that officers have caretaking tasks is not an open-ended license to perform them anywhere. Justice Alito's concurrence added that there is no special Fourth Amendment rule for the broad category of cases called community caretaking. Then this January, in Case against Montana, the Court took up the emergency aid side of the same doctrine and, honestly, cut the other way: the test for entering a home to render emergency aid is objective reasonableness, with no probable cause gloss, because probable cause is a criminal investigation concept that fits awkwardly in a rescue. So the Supreme Court has told you two things. Community caretaking isn't a magic phrase. And an officer's belief that someone needs help is measured by whether it was objectively reasonable, not by whether he'd have had grounds to arrest.

So here's the working playbook when your DUI file starts with a sleeping driver.

First, build the timeline in seconds. Where was the car, legally parked or in a lane. What did the officer see before contact. When did he knock, when did the driver respond, and how: eyes open, sat up, spoke, said what. What was the first thing the officer said, and was it a request or an order. The whole case is the gap between the driver's first response and the officer's first command.

Second, the video goes in. In Fuchs the body camera wasn't in the record and the deputies' account controlled. Whatever the video shows, it fixes the timeline, and the timeline is the case.

Third, ask what the officer did that a caretaker does. Did he call fire rescue, and when. In Fuchs, fire rescue was already there. In Daniels, the deputies called EMS first. There are circuit court orders collected in the Masters of DUI materials, and I'll label them as that, circuit court orders, finding no genuine concern where the officer photographed the sleeping driver before doing anything for him, or never summoned medical help at all. A caretaker who never caretakes is an investigator, and investigators need suspicion.

Fourth, find the moment the concern was answered and put your motion there. If the driver spoke and made sense, Greider. If EMS cleared him, Daniels, and then fight over whether the pre-clearance facts were really ambiguous. Legal parking space, engine running, nothing else, that's Danielewicz and Delorenzo and you should win. Truck in the exit lane facing the road at night, that's Daniels and you probably don't.

Fifth, be honest about Dermio. If your client couldn't respond, the Second District will let the deputy open the door, and Case against Montana says the standard is objective reasonableness. Your argument there is different: it's Kentucky against King, the police-created exigency rule, that an officer who pounds on a window until a sleeping man is confused, then treats the confusion as the emergency, made the emergency himself. That argument has not won in a Florida appellate court on these facts. I'm telling you where the line is, not that it moves.

If you want the set, Fuchs, Greider, Dermio, Daniels and Leiby, with Caniglia and Case, plus a one-page welfare check timeline worksheet built on the questions I just walked through, email me and I'll send them over.

So that's the week. A sleeping driver in Hillsborough whose case went back because nobody had asked him anything yet. A murder conviction reversed because the judge answered one evidence question and not the second. A manslaughter plea reversed because the lawyer heard "no trial" and stopped asking. A three-year minimum thrown out because possession and possession aren't the same word. Five defendants told the six-person jury argument belongs in Washington, and a footnote on how to preserve it. And a UM policy saved by a hairstylist's tax returns.

The pattern, if you want one: in every case the first answer was right, and the case turned on whether anyone asked the next question.

One caveat, colleague to colleague. These are summaries, most of these decisions aren't final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

If you want any of this week's opinions or that welfare check worksheet, email me at Rory at the Safir lawyer dot com and I'll send them over.

Take care of yourself, and take care of your clients.