Hilton v. State, 2D02-5346.

• Decision Date: 16 February 2005
• Docket Number: No. 2D02-5346.,2D02-5346.
• Citation: 901 So.2d 155
• Parties: Tristan HILTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

901 So.2d 155

Tristan HILTON, Appellant, v. STATE of Florida, Appellee.

No. 2D02-5346.

District Court of Appeal of Florida, Second District.

February 16, 2005.

James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

EN BANC

WHATLEY, Judge.

Tristan Hilton pleaded no contest to possession of marijuana after the trial court denied his dispositive motion to suppress. The motion alleged that the stop of Hilton's car was improper, and therefore, any evidence obtained as a result of the stop should be suppressed. Because the trial court properly denied the motion to suppress, we affirm Hilton's conviction.

Law enforcement officers stopped Hilton's car after noticing that it had a cracked windshield. The crack was approximately seven inches in length and was located in the upper right-hand corner on the passenger side. The officers testified at the suppression hearing that they merely intended to issue Hilton a traffic citation for the cracked windshield. Upon stopping the vehicle, however, the officers observed a gun in plain view and the resulting search of the car produced more than forty bags of marijuana.

We conclude that the officers lawfully stopped Hilton's car based on the cracked windshield, because the equipment violation was a noncriminal traffic infraction. Section 316.2952, Florida Statutes (2001), provides that a windshield is required on every motor vehicle and that a violation of this statute is a noncriminal traffic infraction. Section 316.610(1), expressly gives a police officer the authority to require the driver of a vehicle to stop and submit the vehicle to an inspection if the officer has reasonable cause to believe that the vehicle is "unsafe or not equipped as required by law or that its equipment is not in proper adjustment or repair." (Emphasis added.)

Although the above two statutes do not specify under what circumstances an officer may stop a car to perform a safety inspection of a broken windshield, we conclude that an officer may stop a vehicle with a visibly cracked windshield regardless of whether the crack creates any immediate hazard. We first note that section 316.610(1) permits a stop when a vehicle is unsafe or when a vehicle has equipment that is not in proper repair. Thus, the legislature clearly did not limit the authority of the police to only those cases in which the equipment created some immediate or heightened level of risk. We agree with the dissent that the first, unnumbered paragraph of section 316.610 is also relevant to our analysis and believe that the language supports our position. That section provides:

It is a violation of this chapter for any person to drive ... any vehicle ... which is in such unsafe condition as to endanger any person or property, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter....

(Emphasis added.) Because a windshield is required by this chapter, § 316.2952, it is a violation of this section to drive a vehicle with a windshield that is not in proper condition and adjustment.

Second, section 316.610(2) addresses stops for equipment violations which are not unduly hazardous:

In the event the vehicle is found to be in unsafe condition or any required part or equipment is not present or is not in proper repair and adjustment, and the continued operation would probably present an unduly hazardous operating condition, the officer may require the vehicle to be immediately repaired or removed from use. However, if continuous operation would not present unduly hazardous operating conditions, that is, in the case of equipment defects such as tailpipes, mufflers, windshield wipers, marginally worn tires, the officer shall give written notice to require proper repair and adjustment of same within 48 hours, excluding Sunday.

(Emphasis added.)

This statute gives law enforcement the authority to require the vehicle to be immediately repaired or removed from use if the equipment violation creates an unduly hazardous operating condition. However, if the equipment violation does not create an unduly hazardous operating condition, the officer must give written notice to repair the vehicle. By necessary implication, the stop of a vehicle is proper even if the equipment violation does not create an unduly hazardous operating condition.

Third, we conclude that the power extended to the police in section 316.610(1) does not violate the Fourth Amendment. It is worth emphasizing that the legislature did not create this statute as a method of criminal investigation. This statute was intended to create a noncriminal safety stop to permit police to perform a quick vehicle-specific safety inspection that is cheaper and less intrusive, and arguably more effective, than methods of mandatory, annual vehicle inspection. It was reasonable for the legislature to require all automobiles to have certain equipment and for that equipment to be in proper repair. Owners and operators of cars are expected to know these legal requirements and should not expect their sense of personal privacy to prevent the police from briefly stopping a car that reasonably appears to have an equipment violation.

In Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the temporary detention of a motorist is reasonable under the Fourth Amendment where police have probable cause to believe that a civil traffic violation has occurred.¹ The Court held that the "[s]ubjective intentions [of the officers involved] play no role in ordinary, probable-cause Fourth Amendment analysis." Id. at 813, 116 S.Ct. 1769.

Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.

Id. at 818-19, 116 S.Ct. 1769 (emphasis added).

In Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997), law enforcement officers, who were working felony drug interdiction, stopped a truck for having a dim tag light. Smith was a passenger in the truck. Because the driver seemed exceptionally nervous, the officer asked him for consent to search the truck and the driver consented. Thereafter, the officer's K-9 dog conducted a search of the truck which led to the discovery of methamphetamine and marijuana. Smith moved to suppress evidence discovered as a result of the stop, arguing that the stop was pretextual. Relying on Whren, this court held that the stop was reasonable because the officers had probable cause to believe that the truck had a dim tag light, even though the officers may have been looking for drug traffic that evening. Id. at 878; see State v. Snead, 707 So.2d 769, 770 (Fla. 2d DCA 1998)

(holding that stop was reasonable where officer had probable cause to believe that appellee's taillight and brake light were inoperable); State v. Moore, 791 So.2d 1246 (Fla. 1st DCA 2001) (concluding that where police were conducting surveillance near motel based on informants' description of appellee, stop of appellee's auto was justified where officers had probable cause to believe his windows were illegally tinted, a noncriminal traffic infraction); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001) (holding that stop of appellee's car was clearly lawful where car was pulling a trailer that had no taillights or license plate in violation of section 316.610); Scott v. State, 710 So.2d 1378 (Fla. 5th DCA 1998) (concluding that officer had probable cause to stop appellant's car pursuant to section 316.610(1) where turn signal on car was not operating properly).

We also note that it would not be practical to require a law enforcement officer to make a determination regarding the extent of a crack in a windshield until the vehicle is actually stopped. In United States v. Cashman, 216 F.3d 582 (7th Cir.2000), the appellee argued that the stop of his vehicle for a cracked windshield was improper because the windshield did not violate the state law prohibiting an excessively cracked windshield, which was defined as a windshield with a crack that extends more than eight inches from the frame or a crack inside the windshield critical area. The court rejected this argument and held that the stop was proper:

The propriety of the traffic stop does not depend ... on whether Cashman was actually guilty of committing a traffic offense by driving a vehicle with an excessively cracked windshield. The pertinent question instead is whether it was reasonable for Trooper Spetz to believe that the windshield was cracked to an impermissible degree.

216 F.3d at 587.

Therefore, even if section 316.2952 or section 316.610 stated that a cracked windshield would be a traffic violation only if it created an unsafe condition, an officer may be reasonable in his or her belief that the crack met such criteria, even though an examination of the windshield after the stop revealed that the crack did not create an unsafe condition. "[T]he Fourth Amendment requires only a reasonable assessment of the facts, not a perfectly accurate one." Cash...