State v. Garcia, 96-938
| Decision Date | 25 July 1997 |
| Docket Number | No. 96-938,96-938 |
| Citation | 696 So.2d 1352 |
| Parties | 22 Fla. L. Weekly D1801 STATE of Florida, Appellant, v. Rogelio Lazaro GARCIA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and E. Paul Stanley, Assistant Attorney General, Daytona Beach, for Appellant.
No Appearance for Appellee.
The state appeals the trial court's order suppressing contraband evidence. We affirm the order because the record evidence supports the trial court's conclusion that the contraband was seized incident to an illegal traffic stop.
In the early morning hours of August 24, 1995, the defendant, Rogelio Lazaro Garcia, was driving a 1993 Nissan north on the Florida Turnpike. At approximately 4:00 a.m., a highway patrolman stopped the Nissan for a traffic infraction. Through a series of questions directed to the defendant and the defendant's passenger, as well as a computer check on the defendant, the patrolman determined that the defendant was driving with a suspended license. The passenger, who owned the Nissan, gave the patrolman permission to search the car. The search revealed controlled substances in the defendant's luggage. Later, at the police station, cocaine was found in the defendant's pants pocket.
The defendant was subsequently charged with trafficking in cocaine and possession of the controlled substance flunitrazepam. Prior to trial, the defendant moved to suppress the contraband evidence, arguing that it was obtained as a result of an unlawful traffic stop. At the hearing on the motion to suppress, the patrolman testified that he stopped the defendant because he could not read the expiration date on the temporary tag displayed "high up" in the rear window of the Nissan. 1 The patrolman explained that the stop occurred on a dark and rainy night.
The evidence presented at the hearing on the motion to suppress consisted of the testimony of the officer and a photograph of the rear window of the Nissan showing the temporary tag. After considering the evidence, the trial court determined "that the defendant did not commit a traffic violation, nor was there probable cause for the traffic stop." Accordingly, the trial court granted the defendant's motion to suppress.
The state appeals this ruling, arguing that the evidence does not support the trial court's findings of fact, and the trial court applied the wrong legal standard. Specifically, the state contends that the trial court was required to accept the patrolman's testimony that he could not read the expiration date on the license plate because there was no substantial competent evidence controverting his version of the events. 2 However, this argument simply ignores the fact that the trial court necessarily found the patrolman's testimony to be not credible. Instead, the trial court relied upon the photograph of the Nissan to support its findings of fact. In this regard, the photograph reveals that the temporary tag was mostly in the lower one-half of the rear window on the driver's side, and the numbers indicating the expiration date were large, clear, and in sharp contrast to the background of the tag. These numbers were written at the top of the tag and covered approximately one-half the width of the tag, making them significantly larger than the expiration date on stickers issued for placement on license plates. As a result of the placement of the tag, the expiration date appeared at the approximate midpoint between the top and the bottom of the rear window. Based upon this evidence, the trial court found that there was no probable cause of a traffic violation. 3
In closing, we note that, contrary to the state's urging, it is essential that there be an objective standard in which to justify the stop of a motorist because, absent an objective standard, there would be no protection against unreasonable seizures. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). A seizure of one's person by the police implicates the Fourth and Fourteenth Amendments because the Fourth Amendment protects against unreasonable seizures. The reasonableness standard requires, at a minimum, that the facts upon which a seizure is based be capable of measurement against an objective standard. Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396. Without the reasonableness standard, officers would be authorized to stop vehicles at their unrestrained discretion. 4
Accordingly, since the instant record supports the trial court's conclusion that the defendant had been subjected to an illegal stop, we affirm the suppression order.
AFFIRM.
I believe that State v. Bass, 609 So.2d 151 (Fla. 5th DCA 1992), controls this decision. Like the defendant in Bass, Rogelio Lazaro Garcia was stopped when the arresting officer testified that the expiration date of Garcia's vehicle tag could not be seen as he approached from the rear.
Roy Swats, a Florida Highway Patrol officer for some 22 years, testified as follows:
A. I was sitting on the east shoulder facing south observing northbound traffic when this vehicle went by. As it went by, I looked in the rear view. Things we look for are tags and I did not see a tag down in the bumper area where a normal tag would have been expected to be seen. I pulled out at that time, U-turn, proceeded back on--I was facing south, went back on and came up alongside the vehicle and saw what appeared to be a paper tag in the left rear window high up. I could not--
Q. Okay. What was the weather like at this time?
A. It was raining. It was dark, very dark, overhead street lights.
Q. Was this during any hurricane?
A. Hurricane Aaron had come ashore.
Q. And this was 4:00 o'clock in the morning?
A. 4:05.
Q. When you observed this paper tag, were you able to read what the tag said?
A. I could see the tag numbers. I could not see the expiration.
Q. Is that what you routinely check for?
A. Yes, Ma'am.
After the stop, the officer determined that the tag had not expired but he asked to see Garcia's driver's license in any event. Stating that he had no driver's license, Garcia showed the officer a passport instead. A passenger in the vehicle produced a registration for a temporary tag but it was not for the temporary tag affixed to the rear window. The officer ran a check on Garcia through the computer and the information came back that his driver's license had been suspended. Garcia was placed under arrest and a search of the vehicle turned up illegal narcotics. Garcia moved to suppress the evidence on the basis of an illegal stop. The trial court granted the motion.
The trial court, in distinguishing this case from Bass, stated:
Bass was stopped for a traffic check because the temporary tag was not sufficiently visible for the officer to determine whether it had expired. The facts of this case are different.
In the instant case, the officer may not have seen the tag because of reduced visibility, but the tag was mounted in the rear window and was not obstructed or obscured.
The court then, relying on Taylor v. State, 644 So.2d 132 (Fla. 1st DCA 1994) (), held that since Garcia had not committed a violation, there was no "probable cause" for the traffic stop. The court suppressed the drugs found in the vehicle.
In my view, Taylor does not support the trial court's decision. In Taylor, the officer stopped Taylor because the temporary tag was displayed inside the rear window. The First District held (based on regulations then in existence but since repealed) that it was proper to place a temporary tag inside the vehicle's rear window and that the stop for that reason was thus improper.
Section 316.605, Florida Statutes, in addition to requiring that the "license plate" be fastened "outside" the vehicle (a requirement that the trial court ruled was answered by Taylor ) also requires that the license be displayed so that it is "plainly visible ... 100 feet from the rear ..." (a requirement not addressed by Taylor nor discussed by the trial court). The validity of this rear visibility requirement was not challenged below nor on appeal. Thus, while Taylor held, based on a then existing regulation, that the placement of the temporary tag in the rear window did not justify a stop, it did not hold, and does not stand for the proposition, that placing the tag in the rear window is a defense to the requirement that the license be...
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