White v. State, 91-3681

• Decision Date: 04 June 1993
• Docket Number: No. 91-3681,91-3681
• Citation: 619 So.2d 429
• Parties: 18 Fla. L. Week. D1395 Paul WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 429

619 So.2d 429

18 Fla. L. Week. D1395

Paul WHITE, Appellant, v. STATE of Florida, Appellee.

No. 91-3681.

District Court of Appeal of Florida,

First District.

June 4, 1993.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.

ALLEN, Judge.

This is an appeal from a judgment of the circuit court revoking the appellant's probation. Because the trial judge relied upon illegally seized evidence, an invalid condition of probation, and inadequate proofs in finding the appellant in violation of his probation, we reverse the judgment.

The appellant was serving concurrent terms of three years' probation when the vehicle he was driving was stopped by a police officer, ostensibly for playing a radio too loud. Upon stopping the vehicle, Officer Lockard noticed open cans of beer inside and arrested the appellant and two other passengers for open container violations. Lockard then searched the vehicle, discovered two handguns under the front passenger seat, and charged a passenger with possession of a firearm by a convicted felon. After Lockard had the vehicle towed, an inventory search revealed a stolen rifle in the trunk. The appellant was therefore charged with possession of stolen property.

The appellant's probation officer filed an affidavit of violation, alleging that the appellant had possessed a firearm and was arrested for theft of a firearm and an open container violation. The affidavit also alleged that the appellant had violated his probation by failing to commence his community service within thirty days of sentencing and by failing to obtain and maintain full-time employment within thirty days of sentencing. At the revocation hearing, the defense argued that none of the allegations had been proven by competent evidence and that the officer's stop of the vehicle was pretextual and therefore any fruits flowing from that stop should have been suppressed. The judge found that the stop was not pretextual, that the appellee had proven each allegation, and that the appellant was in material violation of his probation. The appellant was sentenced on his original charges to three-and-one-half years' imprisonment.

Turning first to the alleged violations growing out of the stop of the vehicle, we observe that articles and information obtained from an illegal search or seizure are inadmissible in probation revocation proceedings. State v. Cross, 487 So.2d 1056 (Fla.1986), cert. dismissed, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986). The appellant argues that the stop of his vehicle was pretextual and thus illegal. The appellee relies on the testimony of Officer Lockard as well as section 316.3045, Florida Statutes (1991), which limits the permissible volume of electrical soundmaking devises operated within motor vehicles, to argue that the stop was valid.

In order to prove that a traffic stop is not pretextual, "[t]he state must show that under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose." Kehoe v. State, 521 So.2d 1094, 1097 (Fla.1988). In this case, the appellant and his passengers were traveling at 12:30 A.M. in an automobile along a congested avenue on which were located at least three local bars. Lockard testified that he stopped the vehicle for its loud stereo and that he noticed the volume because the windows on his patrol car were vibrating. Lockard's testimony was insufficient to meet the Kehoe standard because it did not show that his actions were consistent with his usual practice or with the actions of a...