State v. Holland, 94-856

• Decision Date: 23 August 1996
• Docket Number: No. 94-856,94-856
• Citation: 680 So.2d 1041
• Parties: 21 Fla. L. Weekly D1914 STATE of Florida, Appellant, v. Barbara Gayle HOLLAND, Appellee.
• Court: Florida District Court of Appeals

Page 1041

680 So.2d 1041

21 Fla. L. Weekly D1914

STATE of Florida, Appellant, v. Barbara Gayle HOLLAND, Appellee.

No. 94-856.

District Court of Appeal of Florida,

First District.

Aug. 23, 1996.

Robert A. Butterworth, Attorney General, and Thomas Crapps, Assistant Attorney General, Department of Legal Affairs, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, Attorney for Appellee.

BOOTH, Judge.

This cause is before us on appeal from an order granting Appellee Holland's motion to suppress a knife with cocaine residue on its blade, which police seized from a vehicle in which Holland was a passenger. The trial court ruled that the stop of the vehicle was pretextual under Kehoe v. State, 521 So.2d 1094 (Fla.1988). We reverse and remand.

During the pendency of this appeal, the United States Supreme Court rendered its decision in Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), applying an objective test to uphold a search and seizure under similar facts. In Whren, the Court specifically rejected the reasonable officer test that the Florida Supreme Court recently applied in State v. Daniel, 665 So.2d 1040, 1046 (Fla.1995). Reversal of the order below is compelled under the objective test set forth in Whren, supra.

Even applying the reasonable officer test set forth in Daniel, we would reverse the suppression ruling below. In the case before us, it is undisputed that immediately prior to the stop, the subject vehicle ran a stop sign. ¹ Running a stop sign is a direct violation of Florida's traffic laws, ² and is a valid reason for police to stop a vehicle. See State v. Renda, 553 So.2d 373, 374-75 (Fla. 2d DCA 1989)(reversing order granting defendant's motion to suppress cocaine, finding under Kehoe that "the cocaine was found as part of a legitimate traffic stop" for running a stop sign). ³ As recently held in a similar context in State v. Everett, 671 So.2d 161 (Fla. 2d DCA 1996):

[T]he Florida Supreme Court recently opined that once the state establishes that a traffic stop was legally authorized, then any legitimate doubt whether the state has met its burden that the stop was not pretextual should be resolved in favor of the state. State v. Daniel, 665 So.2d 1040 (Fla.1995). In this instance, the state presented unrefuted testimony indicating [the defendant] made a right hand turn without signalling. [The defendant's] action was a violation of section 316.155, Florida Statutes (1993). Consistent with Daniel, [the defendant's] action gave the officer the right to initiate a traffic stop.

It is also undisputed in the present case that, once stopped, the driver consented to the search of the subject vehicle. See State v. Cromatie, 668 So.2d 1075, 1077 (Fla. 2d DCA 1996) (holding in context of vehicle that had run a stop sign and had an improperly operating left rear brake light that "[d]uring a valid traffic stop, ... there is no reason a law enforcement officer cannot ask for consent to search."); see also State v. Lagree, 595 So.2d 1029, 1031 (Fla. 1st DCA)("A mere passenger normally does not have standing to contest the search of a car in which he is riding."), rev. denied, 601 So.2d 553 (Fla.1992).

Finally, it is also undisputed that the police involved in this case, members of a specialized street crimes unit, normally stop vehicles for running stop signs and other traffic infractions, and request the drivers' consent to search the vehicles. ⁴ As held by the Florida Supreme Court in Daniel, 665 So.2d at 1046, "a stop is permissible if effected by specialized officers properly acting within the scope of their usual duties and practices...."

It is important to note that the trial court in the present case did not reject the officers' testimony pertaining to the usual police practice; rather, the trial court found the practice itself to be objectionable because the trial court believed that the officers' primary motive in stopping for traffic violations was to search vehicles for drugs.

The "primary motivation" rationale employed by the trial court here has already been rejected under strikingly similar facts in State v. Renda, 553 So.2d 373 (Fla. 2d DCA 1989). In Renda, as in the present case, officers of "a special investigations unit targeted primarily at drug-related crimes" noticed the suspicious activity of a certain vehicle in a neighborhood known for high levels of crime and drug abuse, and thereafter stopped that vehicle when it "proceeded through a stop sign at approximately five miles per hour without stopping." 553 So.2d at 374. The trial court in Renda suppressed cocaine seized as a result of the stop, holding that it was "not believable that the primary reason for stopping the Defendant was his traffic violation.... The stop of the vehicle would not have occurred absent the suspicion of drug activity." Id. at 374-75. The appellate court reversed, holding (Id. at 375):

[The trial court's] interpretation of the Kehoe standard erroneously turns on the officers' primary motive, not on whether a reasonable officer would have made the stop.

This court has already rejected such an approach. In Moreland v. State, 552 So.2d 937 (Fla. 2d DCA 1989), this court said:

We do not agree with the defendant's argument that the stop was an invalid pretextual stop. While there was evidence indicating invalid subjective pretextual motives of the officers, there was also evidence of valid objective bases for the stop.... Each officer testified that he would have stopped any driver under the circumstances.

Moreland, 552 So.2d at 938[, rev. denied, 562 So.2d 346 (Fla.1990) ]. In Moreland, the defendant was clocked at sixty-two miles per hour in a fifty-five miles per hour zone and was weaving on the road. Here the defendant travelled through a stop sign. In both cases officers testified that they would issue citations for such violations.

Likewise, as held under similar facts in State v. Velez, 649 So.2d 310, 311 (Fla. 3d DCA 1995):

[I]t does not matter that the officer in question--who in this case was a narcotics investigator--might or even, as the trial court held, would have detained the occupants [of a vehicle that had run a red light and travelled 60 miles per hour in a 30 mile-per-hour zone] if no infraction had taken place at all. Although State v. Irvin, 483 So.2d 461[, 462-63] (Fla. 5th DCA 1986), review denied, 491 So.2d 279 (Fla.1986) was decided pre-Kehoe, it is based on Kehoe principles and is almost directly on point:

[T]hat the police may have wished or even intended to detain a suspect for another reason does not invalidate an apprehension which follows the commission of a traffic or other offense which would subject any member of the public to a similar detention. Applying these principles, we reverse the order under review which, on the finding that the officers would have (unjustifiably) detained the appellant driver for questioning on drug charges in any event, suppressed contraband found in the car after it was stopped for going 70 miles per hour in a 50-mile-per-hour zone. (footnotes omitted) (citations omitted)

* * * * *

Regardless of what they would have done, the police could validly have stopped the defendant only if he committed an illegal act. On the other hand, since Irvin in fact did so, he may not be excused from that misconduct merely because the officer might have arrested him anyway. [ (Emphasis original, footnote and citations omitted). ⁵ ]

In short, under either the reasonable officer test set forth in Daniel, supra, or the objective test of Whren, supra, we reverse the suppression order under review and remand for further proceedings. We certify the following question of great public importance to the Florida Supreme Court:

WHETHER WHREN V. UNITED STATES, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), OVERRULES STATE V. DANIEL, 665 So.2d 1040, 1046 (Fla.1995), AND WHETHER THE PRESENT SUPPRESSION ORDER SHOULD BE REVERSED.[ ⁶

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS; QUESTION CERTIFIED.

LAWRENCE, J., concurs, and VAN NORTWICK, J., concurs with written opinion.

VAN NORTWICK, Judge, concurring.

I concur because I believe Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), has overruled State v. Daniel, 665 So.2d 1040 (Fla.1995), and compels reversal in the instant case. I write solely because I disagree with the majority's conclusion, although somewhat hypothetical in view of Whren, that reversal would be required here even under the so-called "reasonable officer test" applied in Daniel.

The trial court below in effect applied the Daniel reasonable officer test, finding that the specialized narcotics officers who made the traffic infraction stop would not have effected the stop under their usual police practices absent a motive to search for illegal drugs. Because the trial court's determination is supported by competent substantial evidence, as I read Daniel, under the reasonable officer test we would have been obligated to uphold the instant suppression order.

In Daniel, the court described the reasonable officer test as "asking whether the stop--if occasioned by a minor infraction--was of a kind falling within the usual practices of the same or similar agencies." Id. at 1041-1042. The test involves an objective "individualized inquiry ... [asking] whether the usual police practice would be to effect a stop when confronted with a particular kind of minor infraction. In sum, would the officer have effected the stop absent any improper motive." Id. at 1043 (emphasis theirs). Thus, under Daniel, the reasonable officer test means that:

[A] stop for a minor infraction cannot be deemed pretextual on appeal where (1) the officer was acting with the proper scope of lawful authority, and (2) the record below contains competent substantial evidence that the stop was not objectively pretextual without regard to any subjective...