Lucas v. State

Decision Date10 June 2021
Docket NumberNo. 1D19-3882,1D19-3882
CourtFlorida District Court of Appeals
Parties Travis Ryan LUCAS, Appellant, v. STATE of Florida, Appellee.

Gary Lee Printy of Gary Lee Printy Attorney at Law, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Travis Ryan Lucas appeals the denial of his motion to suppress. His appeal arises from the same traffic stop challenged on appeal by a passenger in the same vehicle who raised the same legal issues. A separate panel opinion affirmed the trial court's decision as to that passenger in Rebecca Jane Thomas v. State of Florida , 312 So.3d 156 (Fla. 1st DCA 2021), which requires affirmance here.

AFFIRMED .

Makar, J., concurs dubitante with opinion; Osterhaus, J., concurs with opinion; M.K. Thomas, J., concurs with opinion.

Makar, J., concurring dubitante.1

This is one of twin cases involving a Fourth Amendment issue. As background, Travis Ryan Lucas was driving a vehicle with a dealer tag in which Rebecca Jane Thomas was a passenger when they were detained by a police officer and later arrested on drug possession charges. The trial court denied a motion to suppress the evidence obtained from the stop, and both Lucas and Thomas simultaneously appealed, each represented by the same appellate attorney who filed identical briefs in each case, arguing the same issue: that the police officer "did not have probable cause to stop Appellant's vehicle just because the dealer tag did not match what was assigned to the vehicle in the DMV [Department of Motor Vehicles] files." See Rebecca Jane Thomas v. State of Florida , 1D19-3881 ; Travis Ryan Lucas , 1D19-3882. Closely related cases such as Thomas and Lucas may typically be consolidated for administrative convenience and judicial efficiency. They were not, so two independent and differently composed three-judge panels were assigned to separately adjudicate them, creating the potential for different outcomes if informal conferences fail to resolve differences.2 Thomas was released first and upon issuance of its mandate became the law of the District. See Rebecca Jane Thomas v. State of Florida , 312 So.3d 156 (Fla. 1st DCA 2021). Under the circumstances, I disagree with the panel opinion in Thomas , the companion to this case, but am required to follow it. My rationale for why a Fourth Amendment violation occurred—and why I am dubious about Thomas —is explained in what follows:

* * *

Freedom from warrantless and unreasonable searches and seizures by governmental authorities is a bedrock constitutional liberty in both the federal and Florida constitutions. This right is tempered by, and balanced against, the legitimate and exigent demands of law enforcement officials to temporarily stop and interrogate a person whose conduct under the circumstances forms a well-founded and reasonable belief that the person has committed or is about to commit a crime. In this case, the decision to stop and detain Travis Ryan Lucas simply because the vehicle he was operating had a Florida dealer tag falls below this standard.

Shortly before midnight on a Saturday evening in Crestview, Florida (pop. 20,978), Officer Caden T. Downing—a three-year member of the sheriff's office—pulled into a Tom Thumb3 convenience store on U.S. 90 to refuel his police vehicle. A number of cars were at the store and he, as was his personal practice, ran every license tag number he observed. One of the vehicles had a Florida "dealers tag" that came back as "unassigned" to a particular vehicle, which is the case for all dealer tags in Florida.4 Officer Downing had observed no illegal behavior by the vehicle's driver or its two other occupants; the driver had merely gone into the store for five minutes, returned, and departed from the premises.

Based on his view that an "unassigned" dealer tag was a criminal violation of Florida law, the officer pursued and stopped the vehicle and called in backup, including a K-9 unit, which alerted to the vehicle, resulting in the discovery of a small amount of drugs and a few syringes. Lucas entered a plea on drug possession charges but reserved the right to contest the constitutionality of the officer's actions in detaining and searching him under the circumstances.

For an investigatory detention to be constitutionally valid, a police officer must have "a reasonable suspicion that a person has committed, is committing, or is about to commit a crime . In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop ." Popple v. State , 626 So. 2d 185, 186 (Fla. 1993) (internal citation omitted) (emphasis added); see also § 901.151(2), Fla. Stat. (2020) (Florida's Stop and Frisk Law, which codifies the standard for investigatory detentions). The State bears the burden of proving that the investigatory detention in this case—which was based solely on an "unassigned" dealer tag—was warranted as an exception to the Fourth Amendment. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Popple , 626 So. 2d at 187. This burden was not met in this case.

Dealer tags in Florida are ubiquitous due to the hundreds, if not thousands, of persons and entities who operate new and used automotive dealerships in the state. Dealers may purchase as many tags as they desire, limited only by their liability insurers. Dealer tags are a common sight on the state's roadways; here's an exemplar:

A dealer tag looks exactly like Florida's standard issue vehicle license tags except for the word "DEALER" in the center bottom.

The lawful purposes for which dealer tags are used are very broad. By law, a dealer tag may be used on any vehicle that is either (a) in the dealer's inventory and for sale; or (b) being operated in connection with a dealer's business. § 320.13(1)(a), Fla. Stat.5 The only limitations in the statute are that a dealer tag can't be used on (a) vehicles for hire, such as taxis or those used for ride services, such as Uber® or Lyft,® (b) tow trucks or wreckers (unless they are for sale), or (c) a "vehicle used to transport another motor vehicle for the motor vehicle dealer."6

Common examples of permissible uses of dealer tags abound. An obvious and prevalent one is the use of loaner cars, whereby a dealer allows a vehicle in its inventory to be used on a temporary basis, for instance, while a customer's vehicle is being repaired. Such use is unlimited as to time and place and extends to wherever and whenever the customer decides to drive the vehicle, unless restricted by the dealer.

Another example is using a vehicle to provide a demonstration (e.g., a test drive, which could extend overnight). Yet another is using a vehicle to provide dealer-related services, such as when service calls are made, equipment is transported, or a vehicle is taken to auction. Plus, any vehicle used "in connection with [a] dealer's business" is a permissible use, one that spans the wide range of activities that a dealership business might engage in on a 24/7 basis (such as allowing a mechanic to take a vehicle overnight to work on it offsite, as was the case here, or an officer or employee to use a vehicle as a perk).7 Moreover, the statute allows a dealer tag to be used on any vehicle "in inventory and for sale" without the limitation that it not be "operated in connection with" the "dealer's business." In other words, the statute allows any vehicle for sale in the dealer's inventory to have a dealer tag, period.

Florida law imposes no time or place restrictions on uses of dealer tags. Stated differently, it is lawful in Florida to drive a vehicle with a dealer tag at any time of the day or night . As such, none of the permissible and lawful uses discussed above have temporal or locational restrictions required by law. While a dealer might impose a time or place restriction on the use of its dealer tag, Florida law does not.

Despite the broad legal scope of the permissible uses of dealer tags and the absence of time/place restrictions, dealers had been subject to questionable enforcement actions and complained to the Florida Department of Highway Safety and Motor Vehicles. As a result, the Department, in 2013, expressly addressed the problem of law enforcement officers taking action against lawful uses of dealer tags, issuing a memorandum to law enforcement agencies statewide.8 The memorandum's purpose was to clarify the scope of section 320.13(1)(a) and to "clear up any confusion" and "solve" the recurring problems that dealers were experiencing due to misconceptions about the lawful uses of dealer tags. The Department made clear that the language of subsection (1)(a) "simply means that dealers may operate vehicles on the highways of Florida at any time as long as the vehicle is in inventory and for sale or while being operated in connection with such dealer's business." (emphasis added). The Department further stated that "Dealer license plates are not registered to any one vehicle and may be used on any vehicle in the dealer's inventory." (emphasis added). As the emphasized language makes clear, dealer tags may be used at any time on any vehicle in a dealer's inventory.9

The Department's memorandum pointed out that dealer tags in Florida are interchangeable by law and by design. Dealers typically do not have dealer tags for every vehicle in their inventory, nor does Florida law require them to do so. The utility of a dealer tag is that it can be moved from vehicle to vehicle without it being assigned in Department records to a particular vehicle. To fulfill its purpose, a dealer tag is intentionally unassigned to any one vehicle in the state database so that dealers have flexibility in their use. As such, a single dealer tag can be used on multiple vehicles throughout the course of the day, evening, or night. A...

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