Weaver v. State, Case No. 2D16–4461
| Decision Date | 20 December 2017 |
| Docket Number | Case No. 2D16–4461 |
| Citation | 233 So.3d 501 |
| Parties | Sharon Marie WEAVER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
Sharon Marie Weaver challenges the denial of her motion to suppress, which she preserved for appeal when pleading guilty on one count of operating an unregistered vehicle and one count of possession of a controlled substance. We conclude that the trial court's denial of the motion to suppress was erroneous and reverse.
On April 14, 2016, Ms. Weaver was stopped because the license plate on the vehicle she was driving did not match the vehicle. According to the arresting officer, Ms. Weaver explained when questioned "that her friend attached the tag to the vehicle so that she was able to drive it." The officer arrested Ms. Weaver for attaching a license plate not assigned to that vehicle. A search of Ms. Weaver incident to arrest revealed that she was in possession of amphetamine. Ms. Weaver was ultimately charged with possession of a controlled substance and operating an unregistered vehicle, § 320.02(1), Fla. Stat. (2015), rather than attaching a license plate not assigned, § 320.261.
Ms. Weaver moved to suppress evidence obtained pursuant to the arrest and search incident to arrest, arguing that the officer lacked probable cause to arrest because the officer did not observe her attach the license plate to the vehicle. Thus, she argued, the warrantless arrest for a misdemeanor committed outside the presence of the officer was illegal. The State argued that Ms. Weaver's statement to the officer combined with the officer's observations were sufficient to provide probable cause to arrest. The trial court denied the motion.
Ms. Weaver entered an open plea following the denial of the motion to suppress, reserving the right to appeal the denial of the motion. She was sentenced to forty-eight months' probation.
"When reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence." Bautista v. State, 902 So.2d 312, 313–14 (Fla. 2d DCA 2005) (quoting Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003) ).
"An officer is authorized to make a warrantless arrest for a misdemeanor only when it is committed in the officer's presence." Baymon v. State, 933 So.2d 1269, 1270 (Fla. 2d DCA 2006) (citing § 901.15(1), Fla. Stat. (2004) ; and Nickell v. State, 722 So.2d 924 (Fla. 2d DCA 1998) ); see also § 901.15(1), Fla. Stat. (2015).
Several cases have clearly stated that a warrantless arrest for a violation of section 320.261 is proper only if an officer observed the act of attaching the improper license plate to the vehicle. In Phillips v. State, 531 So.2d 1044, 1045 (Fla. 4th DCA 1988), the Fourth District determined that a warrantless arrest for an improper tag violation was invalid where the defendant had not committed the offense in the presence of the officer. The Fourth District stated:
There is nothing in the record to indicate that the police officer personally observed appellant attaching a registration license plate or a validation sticker which was not lawfully transferred to the subject vehicle. In the absence of such personal observation by the police officer herein, probable cause to make the warrantless arrest did not exist.
Id. (emphasis added). In State v. Carmody, 553 So.2d 1366, 1367 (Fla. 5th DCA 1989), though the arrest was valid based on other grounds, the Fifth District concluded "that Carmody's arrest for the license tag offense was invalid because the police officer did not observe Carmody doing the act forbidden by the statute (illegal attachment), and he did not have a warrant."
The State cites a misdemeanor trespass case, State v. Yunker, 402 So.2d 591 (Fla. 5th DCA 1981), in arguing that the officer in this case had substantial reason to believe that the offense was being committed in her presence. The Yunker case involved a warrantless arrest for trespass after warning. The Fifth District clarified that it was not necessary for the initial trespass warning to be issued in the officer's presence. Id. at 593. It was sufficient that the officer had " ‘substantial reason’ at the time of a warrantless misdemeanor arrest to believe from his observation and evidence at the point of arrest that the person ‘was then and there committing a misdemeanor in his presence.’ " Id. (quoting Spicy v. City of Miami, 280 So.2d 419, 421 (Fla. 1973) ). The court explained: "In the instant case, the trespass by Yunker was ‘then and there’ committed on July 1, 1980, in the presence of the officer, not at the time the warning was issued on June 18, 1980." Id.
The alleged offense in this case was committed when the license plate was attached to the vehicle. See § 320.261; Carmody, 553 So.2d at 1367 (). Thus, in contrast to Yunker, the misdemeanor in this case was not "then and there" committed in the presence of the officer.
The State argues that Ms. Weaver's acknowledgement that the license plate had been attached by her friend is sufficient to validate the arrest when combined with the officer's observations. First, we note that Ms. Weaver's statement points to someone else committing the act of attaching the license plate to the vehicle. Furthermore...
To continue reading
Request your trial
-
United States v. Black
...is authorized to make a warrantless arrest for a misdemeanor only when it is committed in the officer's presence." Weaver v. State, 233 So. 3d 501, 503 (Fla. 2d DCA 2017), quoting Baymon v. State, 933 So.2d 1269, 1270 (Fla. 2d DCA 2006) (citing § 901.15(1), Fla. Stat. (2004). 8. See Section......
-
Harris v. Rambosk
...not establish probable cause or arguable probable cause to arrest Plaintiff for this second-degree misdemeanor. See Weaver v. State, 233 So. 3d 501, 503 (Fla. 2d DCA 2017)(citing cases). This observation, however, provided Deputy Wingo with probable cause to initiate a lawful traffic stop o......
-
Lu Jing v. State
...is authorized to make a warrantless arrest for a misdemeanor only when it is committed in the officer's presence." Weaver v. State , 233 So. 3d 501, 503 (Fla. 2d DCA 2017) (quoting Baymon v. State , 933 So. 2d 1269, 1270 (Fla. 2d DCA 2006) ). To comply with the statute, the "arresting offic......
-
Fields v. State
...arrest and search of Fields was illegal, and thus the fruits of the search should have been suppressed. See Weaver v. State, 233 So. 3d 501, 504 (Fla. 2d DCA 2017) ; B.G. v. State, 213 So. 3d 1016, 1019 (Fla. 2d DCA 2017) ; Williams v. State, 769 So. 2d 404, 406-07 (Fla. 2d DCA 2000). There......