IF THERE WAS A SEARCH AND SEIZURE WITHOUT A WARRANT,
   DID IT INVOLVE A MOTOR VEHICLE?  Pages 286 -350

 
X.  IF THERE WAS A SEARCH AND SEIZURE WITHOUT A WARRANT, DID IT INVOLVE A MOTOR VEHICLE? IF SO, DIFFERENT CONSIDERATIONS APPLY. Page 286

A.  There is a limited expectation of privacy. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). [Back]

B.  When is the warrantless search of an automobile proper?  [Back]

1.  "[F]ounded suspicion to stop a vehicle does not carry with it authority to search the vehicle or its occupants. A search may only be conducted pursuant to (1) a search warrant; (2) a valid arrest based on probable cause; or (3) exigent circumstances." Tinson v. State, 650 So. 2d 189 (Fla. 2d DCA 1995).

2.  "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." This is based on the exigency created by the mobility and the reduced expectation of privacy. Pennsylvania v. Labron, 116 S.Ct. 2485, 135 L. Ed.2d 1031 (1996).

3.  Officers may search a motor vehicle without a warrant if they have probable cause to believe it contains contraband and a legitimate concern that the vehicle may be removed and the evidence destroyed. This is an extremely important and long decision that should be read in its entirety. White v. State, 710 So. 2d 949 (Fla. 1998).

4.  "[I]t appears that the automobile 'exception' to the warrant requirement has now become the automobile 'rule', with a warrant 'exception.' We understand from the holding in Carney that the police are now free to search any vehicle, any time, and any place (except when it is upon residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime. It is our understanding that the Carney holding has eliminated any Fourth Amendment requirement for a warrant or showing of exigent circumstances." State v. Starkey, 559 So. 2d 335 (Fla. 1st DCA 1990). See also Perdue v. State, 632 So. 2d 117 (Fla. 1st DCA 1994). [Note: these decisions are not consistent with the decision in White v. State, 710 So. 2d 949 (Fla. 1998).]

5.  The "automobile exception" to the warrant requirement set forth in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) and discussed in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), turns on the mobility of the vehicle and its presence in a setting "'that objectively indicates that the vehicle is being used for transportation.'" Under this exception only "'the prior approval of the magistrate is waived.'" Probable cause must be present just as it would have to be for a magistrate to issue a warrant. In this case the defendant was convicted of murder. A truck had been involved in the crime and officers, acting without a warrant, seized the truck from a public roadway, searched it, and found evidence. On appeal the Court held that the search and seizure met the aforementioned standards based on the following facts: (1) the officers relied on a description given by a witness of the vehicle; (2) a witness identified the truck as one entered by the victim on the night of the murder; (3) the truck had certain unique features which distinguished it from most other trucks. Crump v. State, 622 So. 2d 963 (Fla. 1993).

6.  "There is no requirement that the warrantless search of a vehicle occur simultaneously with its lawful seizure. U.S. v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). A vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search. Id. Cf. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed. 2d 325 (1974)(impoundment and 1-day delay did not make examination of exterior of vehicle unreasonable where it could have been done on the spot); State v. Starkey, 559 So. 2d 335 (Fla. 1st DCA 1990) (‘the police are now free to search any vehicle, any time, and any place (except when it is upon residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime.’" Perdue v. State, 632 So. 2d 117 (Fla. 1st DCA 1994).

7.  It was undisputed that there was probable cause to search the involved car which was stopped on a public street. It was searched without a warrant. The trial judge granted a motion to suppress. On appeal the Court reversed based on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The defense relied on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), because (1) there the car was parked on residential premises not on a public street, and (2) the police there had sufficient time to get a search warrant whereas here they did not. The Court relied on the following language from Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982): "'[W]hen police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody ... It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized.'" The Court also relied on the following language from State v. Starkey, 559 So. 2d 335, 339 (Fla. 1st DCA 1990: "'[T]he police are now free to search any vehicle, any time, and any place (except when it is on residential property) simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of crime. It is our understanding that the Carney holding has eliminated any Fourth Amendment requirement for a warrant or showing of exigent circumstances.'" State v. Daniel, 622 So. 2d 1344 (Fla. 3d DCA 1993).

8.  "[T]he smell of marijuana upon the officers' approach of the car gave the officers probable cause to search the occupants of the car and the car for contraband." State v. Wynn, 623 So. 2d 848 (Fla. 2d DCA 1993). See also State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988).

9.  The trained trooper had probable cause to search the entire vehicle when the trooper saw marijuana seeds in the tray of the car door. Greene v. State, 532 So. 2d 1309 (Fla. 5th DCA 1988).

C.  Stops for non traffic related conduct. [Back]

1.  "[W]e do not agree that an officer may stop a motorist only if he or she is violating the traffic code. For example, if an officer observes garbage being thrown from a vehicle, or that the driver is driving naked or sees a driver shoot at a pedestrian, a stop would appear appropriate." The court found that a violation of the noise statute, which the court found to be constitutional against a vagueness and first amendment attack, justified a stop. Davis v. State, 710 So. 2d 635 (Fla. 5th DCA 1998).

D.  Stops for traffic violations or unusual driving behavior.    [Back]

1.  These cases deal with the situation: Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988); Stafford v. State, 532 So. 2d 1361 (Fla. 1st DCA 1988); Hanley v. State, 547 So. 2d 1037 (Fla. 1st DCA 1989); Castillo v. State, 536 So. 2d 1134 (Fla. 2d DCA 1988); State v. Eady, 538 So. 2d 96 (Fla. 3d DCA 1989); Diaz v. State, 548 So. 2d 843 (Fla. 3d DCA 1989); State v. Rodriguez, 542 So. 2d 454 (Fla. 3d DCA 1989); State v. Frederick, 525 So. 2d 516 (Fla. 4th DCA 1988); Phillips v. State, 531 So. 2d 1044 (Fla. 4th DCA 1988); Andrews v. State, 540 So. 2d 210 (Fla. 4th DCA 1989); Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988).

2.  "All that is required for a valid vehicle stop is a founded suspicion by the officer that the driver of the car, or the vehicle itself, is in violation of a traffic ordinance or statute." Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001). See also State v. Ramos, 755 So. 2d 836 (Fla. 5th DCA 2000).

3.  Once the officer stopped the vehicle he had a right to demand the license and registration even though he immediately determined that the temporary tag was valid. State v. Bass, 609 So. 2d 151 (Fla. 5th DCA 1992).

4.  A marine patrol officer has the authority to stop a citizen for a noncriminal traffic infraction and upon determining that there is probable cause to make an arrest for DUI. State v. Parsons, 569 So. 2d 437 (Fla. 1990).

5.  Where there is a lawful traffic stop it is proper for the officer to direct a narcotics detecting dog to sniff around the car for drugs and to do a search of the vehicle when the dog alerts on the trunk. State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

6.  Where the defendant failed to stop his vehicle after officers activated their emergency lights he violated §316.1935 and the officers had probable cause to arrest him for committing a first degree misdemeanor in their presence. Incidental to the arrest they had the right to search his person. Moore v. State, 561 So. 2d 625 (Fla. 1st DCA 1990).

7.  §316.238 Fla. Stat. does not require that two vehicles be on the same roadway at the time one of the vehicle operators fails to dim his high beams in order for that infraction to be committed. The court made this decision based on a reading of §316.003(43) and §316.238 together. Thus a stop by a trooper on an interstate on such grounds was lawful. Hester v. State, 563 So. 2d 191 (Fla. 4th DCA 1990), reversed on other grounds, 618 So. 2d 1365 (Fla. 1993).

8.  It was proper for the trial court to conclude that a stop was lawful where (1) the officer testified that he saw the vehicle weaving within its lane and slowing to 45 m.p.h. and then accelerating to 55 m.p.h. several times; (2) the officer testified that he had observed similar conduct many times in the past and was aware that such behavior often indicated sleepy or alcohol-impaired drivers and he had stopped vehicles under similar circumstances dozens of times. The Court cited the following language from the opinion in Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975): "'Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other.'" Brown v. State, 595 So. 2d 270 (Fla. 2d DCA 1992).

9.  The trooper had reasonable suspicion where the defendant was observed at 2 A.M. driving his vehicle from the extreme right side of the road to the extreme left side of his lane about five times for about one quarter of a mile. He could stop the defendant even though he did not see any traffic violation and upon discovering additional facts make an arrest. State v. Carrillo, 506 So. 2d. 495 (Fla. 5th DCA 1987); See also, State v. Nugent, 504 So. 2d 47 (Fla. 4th DCA 1987); State v. Neumann, 567 So. 2d 950 (Fla. 4th DCA 1990), rev. denied, 576 So. 2d 289 (Fla. 1991); State v. Padilla, 4 Fla. L. Weekly Supp. 866 (Fla. Dade Cty. Ct. July 14, 1997).

10.  A trooper saw the defendant's vehicle going about 45 m.p.h. on an interstate and weaving within its lane for about a half a mile. The trooper said the manner of operation was consistent with the behavior of a person driving under the influence of alcohol or drugs, or a person falling asleep at the wheel, so he pulled the car over. He observed marijuana in the vehicle and seized it. Relying upon Bailey v. State, 319 So. 2d 22 (Fla 1975), the court concluded that the initial stop was lawful and the evidence was properly seized. Esteen v. State 503 So. 2d 356 (Fla. 5th DCA 1987). See also, Spann v. State, 512 So. 2d 1106 (Fla. 5th DCA 1987); State v. Ervin, 483 So. 2d 461 (Fla. 5th DCA), rev. denied, 491 So. 2d 279 (Fla.1986); State v. Frederick, 525 So. 2d 516 (Fla. 4th DCA 1988).

11.  A deputy followed the defendant's vehicle and observed that the driver seemed to be using the lane markers to position his car. The deputy also noticed that the defendant abruptly slowed from 55 to 30 miles per hour and then sped up rapidly. The officer stopped the car because he found that the driving behavior was "'erratic'". The deputy was concerned that either the driver was impaired or the vehicle was malfunctioning. As a result of the stop the officer secured additional facts which established probable cause for a DUI arrest. The issue was whether the stop was lawful. On appeal the court found that the officer had reasonable suspicion and the stop was valid. "Erratic driving similar to that involved in this case has been held sufficient to establish a founded suspicion and to validate a DUI stop.... Driving behavior need not reach the level of a traffic violation in order to justify a DUI stop.... The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior. In Bailey v. State, 319 So. 2d 22 (Fla. 1975), the Florida Supreme Court upheld the traffic stop of a driver who was observed driving her vehicle at a slow rate of speed and weaving within her lane of traffic. The court expressly stated that there were no circumstances which would reasonably have led the officer to believe criminal activity was taking place. 319 So. 2d at 26. The court nevertheless validated the traffic stop, stating that '[b]ecause of the dangers inherent to our vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.'" Department of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).

12.  Officers saw the vehicle operated by the defendant cross over the right-hand line of the roadway three times. An officer stopped the defendant for violating § 316.089(1), which requires that a driver operate a vehicle, "as nearly as practicable entirely within a single lane" and that a driver not move from the lane until the driver has determined that the vehicle can be moved safely from the lane. The trial court found that the stop was valid. On appeal the court reversed because the evidence was insufficient to support a violation of that statute. This opinion might well be viewed as a departure from the decision in DeShong, but it is doubtful that the court had any such intention. The court makes no mention of Bailey, DeShong, or any similar cases. Thus, there is no indication that the significance of those case was even argued to the court or considered in any way by the court. The court also makes it clear that there was abusive and improper police conduct that shocked the conscience of the court and was probably a major factor in the court’s decision. Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).

13.  At about 2:00 a.m. a deputy saw the defendant continually weaving from side to side within her lane, crossing both the right and left lines several times. The deputy pulled the defendant over for violating §316.089(1), failure to maintain vehicle in a single lane. He issued a citation for that offense and other matters discovered after the stop. He also placed the defendant under arrest for DUI based on evidence secured after the stop. The defendant moved to suppress the evidence secured after the stop. The county judge granted the motion. The county judge concluded that the deputy did not have a founded or reasonable suspicion of criminal activity because a tape made of the driving did not show the vehicle actually crossing the lane lines, and because there was no evidence that the defendant’s driving interfered with or endangered any other vehicle or pedestrian. The circuit court reversed. The defendant filed a petition for certiorari with the district court. The court denied the petition. The district court said that Brown, DeShong, and Carrillo "stand for the proposition that a police officer can stop a driver based on a founded suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense. In the instant case, Robert’s continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence. Thus, the objective facts supported the stop." The court distinguished Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998). "In Crooks, there was no indication, suggestion, or basis for suspecting that the driver was intoxicated or impaired. The Court also noted that in Bailey v. State, 319 So. 2d 22 (Fla. 1975), the Court said:"’Because of the dangers inherent to our vehicular mode of life, there may be justification for stopping a vehicle by a patrolman to determine the reason for is unusual operation.’" Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999).

14.  A police officer [Reisner] followed the defendant "for ten to fifteen blocks with his lights and siren on with no indication that [defendant] was aware of his presence. Reisner observed [defendant] almost hit the median and over-correct to such a degree that he left his lane of travel. These circumstances were sufficient to give rise to a ‘founded suspicion’ that [defendant] was impaired." Ellis v. State, 755 So. 2d 767 (Fla.4th DCA 2000).

15.  An officer stopped the defendant’s vehicle based on reasonable suspicion of DUI. As a result of that stop, officers discovered cocaine on the defendant’s person. A motion to suppress was denied. On appeal, the court affirmed. "Deputy Alfred Araujo (Araujo), assigned to DUI enforcement in Palm Beach County, testified that he first observed appellant when appellant pulled his pick-up truck into the CITGO Gas Mart at the intersection of Westgate and Congress Avenues. Araujo had not noticed appellant driving northbound on Congress, but saw him when he crossed Congress Avenue and turned into the station. As appellant did so, the front and back tires on the driver’s side appeared to strike a raised curb. The truck lifted on the driver's side only, and there were no obstructions, speed bumps or anything else at the end of the driveway. The driveway leading to the market was anywhere from 25 to 30 feet wide, there was no other traffic at the time, and no obstructions in the driveway. Appellant’s truck then "sped up quite rapidly" to the pay phone area and came to a "quick stop." Based upon these observations, Araujo pulled behind the truck.... We hold that the trial court did not err when it denied appellant's motion to suppress. If a police officer observes a motor vehicle operated in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued. Bailey v. State, 319 So.2d 22 (Fla.1975); State, Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992).... We are not persuaded by appellant’s argument that before Araujo could possess a reasonable suspicion to stop him, he had to observe his driving for an extended period of time or distance. In this case, Araujo observed him operate his truck in an unusual manner by hitting the curb with the front and back tires, speeding up and then abruptly stopping in quick succession. Under the circumstances, we conclude that an extended observation was neither possible nor necessary." Finizio v. State, 800 So. 2d 347 (Fla. 4th DCA 2001).

16.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "[T]he State argues the stop was valid because Officer Gendreau had a founded suspicion of criminal activity. The State relies upon the decision in Tamer v. State, 463 So.2d 1236, 1239 (Fla. 4th DCA 1985), approved, 484 So.2d 583 (Fla.1986).... The State’s argument that this case is similar to Tamer is not persuasive. In this case, the officer only saw Appellant pull out of a parking lot with tires squealing. Although it was 2:00 A.M., the parking lot belonged to a motel, not a building that was closed to the public at the time. Unlike the defendant in Tamer, in this case as soon as the officer initiated the traffic stop, Appellant pulled over. The officer did not observe any other unusual driving, nor any traffic infractions. Additionally, in this case the officer had no report of a crime in the area. Thus, the officer did not have any reasonable, articulable suspicion of criminal activity when he initiated the stop." Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

17.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "The State ... argues that the officer was justified in stopping Appellant for driving under the influence (DUI), citing Department of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992). With regards to the ‘founded suspicion’ needed to effectuate a valid stop for DUI, the second district explained: ‘The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.’ Id. at 1352, relied upon, Ellis v. State, 755 So.2d 767, 768 (Fla. 4th DCA 2000). In DeShong, a sheriff followed the defendant for a period of time to check for a possible DUI offense. The sheriff observed the defendant use lane markers to position his vehicle. He then observed the defendant abruptly slow from 55 to 30 miles per hour and then accelerate rapidly for no apparent reason. 603 So.2d at 1350. The sheriff stopped the vehicle because he found the driving behavior ‘erratic.’ The second district determined that the driving behavior was sufficient to establish a founded suspicion and to validate a DUI stop. Id. at 1352. This case is distinguishable from DeShong. In this case, the officer simply observed squealing tires, not any erratic driving over a period of time. Additionally, the officer indicated that at the time there were no other cars on the road or in the parking lot that would have been endangered by Appellant squealing his tires. Thus, there was no evidence that Appellant drove in a sufficiently unsafe manner to validate a DUI stop. The officer ... did [not] have reasonable suspicion of ... DUI, rendering the stop illegal." Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

18.  The defendant was convicted of driving with a suspended license. The defendant argued that the traffic stop was improper because the officer did not have probable cause to make a stop for an illegal U-turn under either section 316.1515 or section 316.152. The first statute provides that a driver shall not make a U-turn "unless such movement can be made in safety and without interfering with other traffic and unless such movement is not prohibited by posted traffic control signs." The second statute prohibits a U-turn "upon any curve, or upon the approach to, or near, the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet." The trial court found that the officer had probable cause for the stop. The appellate court affirmed. The court stated that there had to be objective evidence of a reasonable safety concern. The record contained no objective evidence that the U-turn interfered with traffic or violated a posted sign or was made directly on a curve. The court cited Crooks v. State, 710 So. 2d 1041, 1042 (Fla. 2d DCA 1998). "The testimony of the arresting officer, however, is sufficient to establish that probable cause existed for the stop on the grounds that the U-turn created a reasonable safety concern under section 316.1515." The officer used a map and testified that the place where the -turn was made was a dangerous area. The roadway was narrow, there was a curve in the area, and there was a convenience store at the location. The officer also noted that the defendant drove from shoulder to shoulder. "The officer’s observation of the ‘dangerous’ location at which Bender made the U-turn were based upon objective facts—the ‘pretty narrow’ road, the close proximity to a curve, and the manner of the turn itself—which together constituted reasonable grounds for the stop." Bender v. State, 737 So. 2d 1180 (Fla. 1st DCA 1999).

19.  A stop because the defendant failed to stop at a marked stop line before moving forward in violation of Florida Statutes, section 316,123(21). State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000).

20.  A deputy stopped the defendant and as a result of the stop the deputy discovered cocaine. The trial court granted a motion to suppress. The deputy was on an interstate with his radar on. He noticed the defendant’s vehicle traveling at a speed of 40 to 48 m.p.h. where the maximum speed was 70 m.p.h. and the minimum speed was 40 m.p.h.. The deputy followed the vehicle. The vehicle was traveling between 40 and 50 m.p.h. and continually drifted across the line and then jerked back in a correcting manner. The deputy pulled the vehicle over because those actions are characteristic of an impaired driver. He said he knew something was wrong because people do not normally drive like that. The appellate court reversed based on the principle expressed in Bailey v. State, 319 So. 2d 22 (Fla. 1975): "‘Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the deputy that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other." The Court also cited several cases that followed Bailey. As to Crooks, the Court said that the defendant’s reliance on that case was misplaced: "In holding that the arresting deputy had no objective basis to stop Crooks for failing to maintain a single lane of traffic, this Court noted that the deputy did not think Crooks was intoxicated or otherwise impaired. Moreover, from the facts described in Crooks, it appears that some or all of Crooks’ drifting over the line was caused by the actions of the law enforcement personnel involved." State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999).

21.  An officer had probable cause for a stop where the officer observed the vehicle cross over the center line twice and impeding traffic by traveling far below the normal speed limit. State v. Thomas, 714 So. 2d 1176 (Fla. 2d DCA 1998).

22.  Where an officer saw the defendant leave a restaurant, begin to drive away in a car with a broken tail light, but then back his car into the parking lot and go back into the restaurant, the officer did not have grounds to detain the defendant. Terzado v. State, 513 So. 2d 741 (Fla. 3d DCA 1987).

23.  An officer pulled along side a vehicle at an intersection at 10:55 P.M. There were four people in it. The defendant was in the rear seat and appeared nervous. The car pulled away from the intersection slowly and traveled at about 20 M.P.H. In a 35 M.P.H. Zone, which caused the officer to conclude that the driver might be under the influence of alcohol or drugs. The officer observed a temporary tag inside the rear window, which he could not read. As the officer followed the vehicle the occupants continued to turn around and look at him. The officer decided to pull the car over. The court held that the officer did not have a founded suspicion to stop the defendant. L.W. v. State, 538 So. 2d 523 (Fla. 3d DCA 1989).

24.  The defendant was driving without a valid license. His arrest was lawful and the search of his person incident to that arrest was also lawful. The fact that the officers gave different versions as to how he was searched was irrelevant. State v. Jordan, 590 So. 2d 1118 (Fla. 4th DCA 1991).

25.  A stop could not validly be based on a reasonable suspicion that the defendant was committing a traffic infraction where the officer "reasonably suspected" that a cracked tail light was in violation of law, when in fact it was not in violation of any statute. The involved vehicle was equipped with two sets of rear lights consisting of a signal light on the outside of the light bank, a brake light, a reverse light, and a lens cover or reflector. It was the reflector that was cracked, rather than one of the lights. That was consistent with the requirements of §316.22l that a vehicle have two taillights that emit a red light plainly visible from a distance of 1,000 feet to the rear. The Court held that a reasonable officer would have known what the statutory requirements for taillights were and therefore would have known there was no violation. Doctor v. State, 596 So. 2d 442 (Fla. 1992). See also Hilgeman v. State, 790 So. 2d 485 (Fla. 5th DCA 2001)(officer could not base a stop on the mistaken belief that the defendant and others were violating an ordinance).

26.  In the aforementioned case the state argued that pursuant to §316.110 an officer can stop a vehicle for any equipment malfunction even if it does not violate any statute, pose a safety hazard, or otherwise violate the law. "We do not agree. Such an interpretation ... would allow police to stop vehicles for malfunctioning air conditioners or even defective radios, a result clearly beyond the statute's intended purpose of ensuring the safe condition of vehicles operating on our state's streets and highways." Doctor v. State, 596 So. 2d 442 (Fla. 1992).

27.  An officer has reasonable suspicion justifying a stop of a vehicle where he determines that the vehicle's registered owner does not have a valid driver's license. Smith v. State, 574 So. 2d 300 (Fla. 5th DCA 1991).

28.  Driving a vehicle in the dark without any lights and weaving outside the lane of traffic are sufficient circumstances to create a reasonable suspicion of careless driving, reckless driving and DUI. An officer was justified in stopping the involved vehicle and directing the driver to exit. State v. Mahoy, 575 So. 2d 779 (Fla. 5th DCA 1991).

29.  Around 1:00 a.m. a police helicopter saw a car parked in the parking lot of a closed business, and advised a deputy. The deputy saw a vehicle pull out of the parking lot without headlights on. He stopped the vehicle. On appeal the court ruled that there were sufficient grounds for the stop. R.S. v. State, 710 So. 2d 640 (Fla. 5th DCA 1998).

30.  Where an officer could not see a license tag on the exterior of the vehicle it was lawful for him to stop the car. It was also proper for the officer to approach the vehicle and look through the tinted window to see that the temporary tag had expired. "[T]he temporary tag was improperly displayed by being inside the window and not on the exterior of the car. Having made a lawful stop and observed an improperly displayed tag, [the officer] had the authority to further investigate the circumstances." State v. Bentley, 596 So. 2d 773 (Fla. 2d DCA 1992).

31.  Where officer observed the defendant make an abrupt U-Turn and proceed through a residential area at speeds exceeding 80 m.p.h. he had probable cause to make an arrest for reckless driving. State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992); rev. denied, 614 So. 2d 503 (Fla. 1993).

32.  The stop was unlawful where the only grounds giving for detaining a vehicle that was seen driving into and then out of a closed service station at 6:00 a.m. was that the officer wanted to find out why the driver wanted to go into a closed service station. Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992).

33.  The defendant was a passenger in a car. The vehicle was stopped for failure to give a turn signal when making a right turn in violation of §316.155. No other vehicle was affected by the turn. Drugs were found in the vehicle. The Court held that a Motion To Suppress was properly granted. "If no other vehicle is affected by a turn from the highway, then a signal is not required by the statute. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal and any evidence obtained as a result of that stop must be suppressed." The provision of the statute that requires a signal for the last 100 feet before the turn, is intended only to define the distance that a signal is required before a turn in the event that another vehicle would be affected by the turn. The Court disapproved State v. Kamins, 615 So. 2d 857 (Fla. 4th DCA 1993). State v. Riley, 638 So. 2d 507 (Fla. 1994).

34.  A stop because the turn signal on the defendant’s car was not operating, was based on probable cause and was proper. The fact that the defendant said it was operating was a credibility matter to be resolved by the trial judge. Scott v State, 710 So. 2d 1378 (Fla. 5th DCA 1998).

35.  "[O]fficer's knowledge that defendant's license had been suspended at least four or five weeks prior to stop was not stale and gave rise to reasonable suspicion, if not probable cause, to arrest for driving with a suspended license." State v. Pugh, 635 So. 2d 999 (Fla. 2d DCA 1994).

36.  An officer knew the defendant "all his life." He had cited the defendant for driving with an expired license. A short time later (two days to a week) he saw the defendant driving. He suspected that the defendant had not secured a new license in such a short time. He stopped the vehicle and as a result cocaine was discovered. The trial judge granted a motion to suppress on the grounds that the officer did not have reasonable suspicion for the stop. On appeal the Court reversed stating: (1) this was not an arbitrary invasion of privacy by stopping drivers without cause as was disapproved in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); (2) the officer's suspicion that the defendant had not secured a license in the short time period was reasonable in view of his familiarity with the defendant; (3) this was not a stop of all drivers, but rather a stop of one driver known to have been unlicenced a short time before and as a matter of common sense this would increase highway safety. State v. Carrs, 568 So. 2d 120 (Fla. 5th DCA 1990). See also State v. Leyva, 599 So. 2d 691 (Fla. 2d DCA 1992) [officer had reasonable suspicion for stop where he had stopped the defendant several times for driving on a suspended license and the last time was four or five weeks prior to the stop.]

37.  Where an officer determined that the tag on the defendant's vehicle did not match the vehicle, he had sufficient cause to stop the vehicle to determine the reason for the discrepancy. State v. Powell, 580 So. 2d 216 (Fla. 4th DCA 1991).

38.  An officer stopped the vehicle because he could not see a tag. The stop was lawful. Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995).

39.  A recent case describes the history of temporary tag rules. In 1995 the statutes authorized such tags, but did not include any specific requirements for displaying them. An administrative rule required that such tags be taped to the rear window. That provision was repealed in 1996. From that time until October 1, 1997, a reasonable interpretation of the law was that a temporary tag had to be displayed like a regular tag. As of October 1, 1997, state statute allowed temporary tags to be displayed in the rear window of the vehicle. Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998).

40.  §316.605(1), requires that "all letters, numerals, printing, writing and other identification marks on the license plate be clear and distinct and that nothing shall be placed on the face of a Florida license plate unless permitted by law." It also requires that a license plate be visible from 100 feet. Both of these provisions were violated. So the stop was lawful. Saviory v. State, 717 So. 2d 200 (Fla. 5th DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001)(stop for no trailer license plate).

41.  The defendant driver gave the officer a registration for another vehicle. The officer had the right to detain and arrest the defendant. § 320.261. Indialantic Police dept. v. Zimmerman, 677 So. 2d 1307 (Fla. 5th DCA 1996).

42.  The defendant's vehicle was illegally parked. Thus, the officer was entitled to detain the defendant for a traffic violation and could order him to exit the vehicle. This is not inconsistent with the decision in Popple v. State, 626 So. 2d 185 (Fla. 1993) because here the defendant was illegally parked and the officer had reasonable suspicion to believe that the defendant was under the influence. Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996).

43.  An officer stopped the defendant because the defendant's car "windshield had a large crack and a windshield wiper stuck directly across the driver's view." The officer said he intended to give the defendant a warning. The defendant was unable to produce a license. The officer arrested him on that charge, but never gave him a citation for the windshield matter. The officer said this was standard procedure. Drugs were discovered in a pat down. The officer had a right to stop the vehicle. "Section 316.610(1), Florida Statutes (1991), states: ‘Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.’" "Section 316.2952(4), Florida Statutes (1991), states: ‘Every windshield wiper upon a motor vehicle shall be maintained in good working order.’" "[T]here is no question that legal authority for the stop existed pursuant to a valid traffic safety statute, and that a traffic stop of this type fell within the usual duties of officers in Deal's department." There is a presumption that the officer would carry out this duty. "In sum, once the State has established that the traffic stop was legally authorized and that it fell within the usual duties assigned to similar officers, then any legitimate doubt whether the State has met its burden should be resolved in favor of the State." State v. Daniel, 665 So. 2d 1040 (Fla. 1995), overruled by, Holland v. State, 696 So. 2d 757 (Fla. 1997).

44.  Officers saw the defendant lawfully driving his car, in the middle of the day, in an area that has a reputation for high crime activity. The rear window of the vehicle was completely knocked out. Both officers stated that the broken rear window was the basis for the stop. As a result of the stop contraband was discovered in the defendant's change purse. The trial judge denied a motion to suppress. On appeal the court reversed because: (1) neither officer knew whether driving a car with a broken rear window was illegal; (2) in fact, the defendant had committed no violation because the Florida Statutes deal only with tinted windows, but none of them require that there even be a rear window; (3) "[t]he police are not permitted to compensate for lack of founded suspicion that a crime has been or is being committed by justifying a stop on an obscure traffic violation or malfunctioning equipment. Doctor v. State, 596 So.2d 442 (Fla.1992)." "Because the officers had observed no violation of the law, and because no reasonable police officer would have stopped the defendant based merely upon the condition of the rear window" the motion to suppress should have been granted. The court relied on Daniel v. State, 647 So. 2d 220 (Fla. 1st DCA 1994) Jackson v. State, 660 So. 2d 312 (Fla. 2d DCA 1995).

45.  Officer Whitehead saw the car swerving and being operated erratically within the city limits. Officer Whitehead sent out a radio transmission. Officer Hardwick responded. Whitehead followed the defendant to the foot of a bridge. The car stopped. Whitehead then followed the car over the bridge and saw it cross the center line four times on the bridge. Whitehead also saw the vehicle almost hit several vehicles in the turn lane of an intersection. Hardwick did not see any of the erratic driving. Hardwick relied on Whitehead’s observations, which he was told about. Whitehead and Hardwick stopped the car outside of the city limits. Hardwick arrested the defendant because he looked drunk and failed field sobriety tests. The defendant refused to take a chemical test. The defendant’s license was suspended. The hearing officer upheld the suspension. The circuit court reversed on the grounds that the officer did not have probable cause for the stop, Hardwick was not in "fresh pursuit," and the fellow officer rule only applies to felonies. On appeal the court reversed. The stop was proper based on fresh pursuit or the felony officer rule. The manner in which the defendant was operating his vehicle was sufficient to justify the stop. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer. State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990); Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); Mahoy. The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses. Eldridge, Mahoy; Steiner. Further, an arrest made outside an officer’s jurisdiction is authorized by §901.25 where, as here, the officer is in fresh pursuit. Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982); Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). Fresh pursuit included misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside of her jurisdiction for committing the offense within the jurisdiction. Edwards. In this case the erratic driving justified the stop and the defendant’s appearance and conduct after the stop justified the DUI arrest. Dept of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

46.  The officer had probable cause for a stop when he saw the vehicle being driven across the grassy median which divided the north and south bound traffic. That constituted a civil infraction pursuant to §316.090(2). State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

47.  An officer stopped the defendant for making a stop without giving a signal. On appeal, the court found that the stop was unlawful because the officer was not in a position to see the taillights. Bowling v. State, 779 So. 2d 613 (Fla. 2d DCA 2001).

48.  An officer stopped the defendant for obstructing traffic. As a result, the officer discovered drugs. The trial judge denied a motion to suppress. On appeal, the court reversed because the officer did not have probable cause for such a charge. "[W]hen a person is charged with a violation of the statute prohibiting obstruction of traffic, the offender's conduct must be willful for the statute to apply.... Appellant acknowledges that he intentionally stopped his car in the middle of the street. However, there is no evidence that he did so with the specific intent to impede or hinder traffic. The undisputed evidence suggests otherwise. According to the testimony at the suppression hearing, when the deputy first observed appellant's car, there were no vehicles coming from either direction waiting to pass through. As soon as the officer’s vehicle approached, appellant moved forward, allowing the officer to continue his travel along the street without having to stop or drive around appellant's vehicle. Although the deputy had to slow down, there is no indication that his ‘normal use’ of the street was hindered or endangered by appellant's conduct. But see Covington v. State, 728 So.2d 1195, 1196 (Fla. 4th DCA 1999)(probable cause for traffic stop found where facts showed that defendant stopped car in roadway with driver's side door open and his foot on the road, causing traffic to be blocked); State v. Constant, 2 Fla. L. Weekly Supp. 407 (Fla. 11th Jud. Cir. Aug. 26, 1994)(probable cause for traffic stop found where defendant left his car unattended in the middle of an intersection of two roadways maintained by traffic control lights, which caused traffic to slow down and to go around the defendant's vehicle). Because we conclude that the officer lacked probable cause to stop appellant for obstruction of traffic, the evidence seized pursuant to the unlawful stop should have been suppressed." Underwood v. State, 801 So. 2d 200 (Fla. 4th DCA 2001).

49.  As a result of traffic stop, an officer secured consent to search and discovered drugs. The defendant moved to suppress on the grounds that the stop was unlawful. The trial judge denied the motion. On appeal, the court reversed. The officer observed the defendant’s vehicle pull out of a hotel parking lot with the tires squealing. "The officer testified that he was concerned that Appellant may be impaired or fleeing from the scene of a crime.... At the time there were no other cars on the road that would have been endangered. Officer Gendreau did not feel that Appellant was an impaired driver but remained concerned because Appellant appeared nervous.... The State argues that Officer Gendreau had probable cause to believe that Appellant violated section 316.154, Florida Statutes (1999), by improperly starting his vehicle. Section 316.154 provides, ‘No person shall start a vehicle which is stopped, standing, or parked, unless and until such movement can be made with reasonable safety.’ The State argues that Appellant’s actions in starting and driving his vehicle at such a rate of speed so as to cause his tires to squeal coupled with the fact that he was entering a major roadway demonstrated a disregard for the safety of others. The State's argument is not supported by Officer Gendreau’s testimony. Officer Gendreau testified that he saw Appellant pull out onto the roadway and heard the tires squealing. When asked if the car was originally parked, he replied: ‘I'm not sure if it was parked. I just know that, as it pulled out of the parking lot, the actual sound of the squealing tires is what drew my attention to the vehicle as it was pulling out of the--like, driving through the parking lot, if you will.’ There was no evidence with respect to how Appellant started his vehicle. The officer did not see Appellant ‘start a vehicle which is stopped, standing, or parked.’ § 316.154, Fla. Stat. (1999). There is no indication that squealing tires alone constitutes a traffic infraction. We are at a loss to understand how squealing tires without more constitutes a danger to public safety. Therefore, the officer did not have probable cause to believe that Appellant committed a traffic infraction, rendering a stop on that basis illegal. Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002).

50.  "The State appeals the order dismissing the information charging [Defendant] with obstructing or opposing a law enforcement officer with violence and battery on a law enforcement officer. We reverse." The defendant attempted to avoid a driver’s license checkpoint. "An officer at the checkpoint radioed the arresting officers to stop Osuji after she observed him make an abrupt turn without using a signal just before reaching the checkpoint and drive through a retirement home parking lot. A conviction for either obstructing a law enforcement officer or battery on a law enforcement officer requires proof that the officer was engaged in the performance of a lawful duty. Taylor v. State, 740 So.2d 89, 90 (Fla. 1st DCA 1999). The arresting officers were authorized to stop Osuji based upon section 316.074(2), Florida Statutes (2000) ("No person shall drive any vehicle from a roadway to another roadway to avoid obeying the indicated traffic control indicated by such traffic control device.") and section 316.155 (requiring use of turn signal). Violation of this statute constitutes a noncriminal traffic infraction, § 316.074(2), .155(5), for which an individual may be stopped by law enforcement. See Willis v. State, 762 So.2d 1005 (Fla. 5th DCA 2000)." State v. Osuji, 804 So. 2d 501 (Fla. 2d DCA 2002).

51.  See cases below on pretextual stops.

E.  Authority to arrest in motor vehicle cases. [Back]

1.  Officers may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer." § 901.15 Fla. Stat. (2000).

2.  Upon observing the defendant's demeanor the trooper arrested him for DUI. The Court held: §901.15(1) authorizes an officer to arrest a person for a misdemeanor in his presence and a DUI is a misdemeanor. State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987).

3.  Two officers arrived at the scene of an accident to investigate. Neither officer had witnessed any driving. When they arrived, the defendant and another person were in the back seat of the car. The other person identified the defendant as being the driver of the vehicle. The defendant did not respond. He also gave officers a false name and his license was suspended. One of the officers arrested the defendant for driving on a suspended license. Both officers were involved in the investigation. After completion of the investigation, one of the officers arrested the defendant for DUI. A county judge denied a motion to suppress on the grounds that there was no probable cause for the arrest. On appeal, the circuit court reversed. The court relied on §901.15(1), "which provides that an officer has probable cause to make a warrantless arrest for a misdemeanor when the offense is committed in the officer’s presence." The court found that none of the statutory exceptions to the warrant requirement were present. This was before the amendment of the statute incorporating the fellow officer rule, but here no officer witnessed the accident; therefore, that provision would not have applied even if it had been in effect. The circuit court rejected the argument that the provisions of §316.645, authorizing an officer to make an arrest for DUI, if the officer develops probable cause during an accident investigation, was an exception to the warrant requirement. On appeal, the court reversed the circuit court and quoted the statute: "‘A police officer who makes an investigation at the scene of a traffic accident may arrest any driver of a vehicle involved in the accident when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the accident.’ (Citation omitted) This statute constitutes an exception to the requirement of section 901.15 that an officer has authority to make a warrantless arrest for a misdemeanor only when the offense has been completed in his presence." State v. Hemmerly, 723 So. 2d 324 (Fla. 5th DCA 1999).

4.  Officers may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer." § 901.15 Fla. Stat. (2000).

5.  The arresting officer never saw the defendant drive the car or in control of the car. A security guard observed the defendant in the car when it started smoking and had him exit the vehicle. The security guard called the police. There was no accident. The trial judge suppressed the evidence in the case on the grounds that the arrest was unlawful because the misdemeanor with which the defendant was charged was committed outside of the officer's presence and there was no accident. The circuit court reversed. On appeal the court agreed with the trial judge. "Here the officer did not witness one of the essential elements of the crimes, namely the control of the vehicle by the petitioner. If we were to permit the security guard's observations which were relayed to the police as sufficient to constitute the officer's knowledge of an essential element of a crime, then as to misdemeanors there would be no point in the statutory requirement that the misdemeanor be committed in the officer's presence. Any citizen could walk up to an officer and relate the commission of a misdemeanor by someone, and the officer would have probable cause to arrest. This is clearly inconsistent with the statutory requirements. See § 901.15 (1)." Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997).

6.  A deputy saw the defendant driving and stopped his vehicle based on a description given to her in the course of a theft investigation. When the defendant exited the vehicle the deputy noticed an odor of alcohol and other signs of intoxication. She called for a backup. The backup officer arrested the defendant for DUI even though he did not witness the defendant in actual physical control of the vehicle. The original deputy processed the theft charge. The trial judge on the DUI charge suppressed the evidence resulting from that arrest on the grounds that the offense did not occur in the arresting officer's presence. On appeal, the court reversed based on §901.18, which provides that a peace officer making a lawful arrest may command the aid of other persons he or she deems necessary to make the arrest and that persons so commanded have the same authority to arrest as the summoning peace office. Thus, the court concluded that the back-up officer could arrest the defendant for DUI based on the information from the original officer who observed the offense. State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990). See also McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983); State v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991); State v. Mahoy, 575 So.2d 779 (Fla. 5th DCA 1991); State v. Leichliter, 23 Fla. Supp.2d 168 (Fla. 11th Cir. Ct. 1987); Katzenberg v. Department of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp. 366 (Fla. 18th Cir. Ct. June 3, 1994).

7.  An officer (Officer A) from one city saw the involved vehicle swerving and being operated erratically within his city. Officer A sent out a radio transmission and another officer from his city (Officer B) responded. Officer A continued to follow the vehicle and clearly developed probable cause for a DUI stop. Officer B did not see any erratic driving, but relied on Officer A’s observations, which were communicated to him. Ultimately, both officers stopped the vehicle outside the city limits of their city. Officer B arrested the driver because he appeared drunk and failed the field sobriety test. He refused a breath test. The hearing officer found that the arresting officer had probable cause. On certiorari, the circuit court reversed, finding that Officer B did not have probable cause, was not in "fresh pursuit" and could not rely on the "fellow officer rule" because the case did not involve a felony. On appeal the court reversed. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer.(citations omitted) The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses." Department of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

8.  One officer (Officer A) had knowledge that the defendant was involved in a pending deportation proceeding, was always armed, and had been previously apprehended by INS. That officer asked another officer (Officer B) to stop the vehicle in which the defendant was a passenger. After stopping the car, Officer B patted the defendant down. Officer A was standing next to Officer B during the pat down. Officer B discovered a gun. Officer B said that he patted the defendant down for officer safety, but that he had no idea who the defendant was or whether or not he was armed. "Not knowing these things he had to assume the worst, so he patted [the defendant] down." The trial judge denied a motion to suppress. On appeal the court affirmed. An INS agent had the right to question aliens about their immigration status. "In order to justify a seizure, however, the agent must articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country." Here the INS agent (Officer A) had sufficient facts to establish reasonable suspicion. He testified that he knew that "Smith was previously apprehended by INS, was involved in a pending deportation proceeding, and was known to be always armed." While Officer B had none of this information, he had the authority to detain the defendant pursuant to the "fellow officer" rule. Which allows an officer to presume that his or her fellow officers who tell him to make a stop have probable cause or reasonable suspicion. "It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received information from some person, usually the victim, official source, or eye witness, who it seems reasonable to believe is telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The "fellow officer" rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, and between federal and state or local authorities." Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

9.  An off-duty officer observed the defendant driving erratically within the officer’s jurisdiction and followed her outside of his jurisdiction. He contacted an on-doing officer from his jurisdiction who made the stop outside that jurisdiction. The on-doing officer did not witness any bad driving. As a result of the stop, evidence of DUI was generated. The defendant was arrested for DUI. The defendant moved to suppress the evidence on the theory that the off-duty officer had no authority to make the arrest. The county judge denied the motion and certified these two questions to the district court: (1) "Whether an off-duty police officer is an officer for purpose of Florida Statutes 901.18, 901.25(2) and the ‘fellow officer’ doctrine." (2) "Whether an officer is in ‘fresh pursuit’, within the meaning of Florida Statute 901.25, where his testimony establishes that he has probable cause to arrest a suspect for violations of law committed in his jurisdiction, and he follows the suspect into a foreign jurisdiction with the intention to have the suspect stopped or arrested, and takes actions which lead to such arrest by another officer that he summoned from his jurisdiction, although he testified that he was not in ‘fresh pursuit’." The appellate court answered both questions affirmatively. An off-duty officer has authority to make an arrest pursuant to §790.052 Fla. Stat.. Thus, the off-duty officer had the authority to summon aid pursuant to §901.18 Fla. Stat., but this statute was not the basis for a lawful arrest here. Although, the off-duty officer summoned the aid, that officer did not make the arrest or participate in it as required by §901.18. The off-duty officer could provide information which could be properly relied on under the fellow officer rule. Here the off-duty officer had probable cause and under the fellow officer doctrine the on-doing officer could rely on that as the basis for the stop and arrest. He did not have to have any other basis for probable cause. However, in this case the officer developed probable cause for DUI after the stop. The off-duty officer’s information provided a proper basis for the stop. The Fresh Pursuit Doctrine is set forth in §901.25 Fla. Stat.. It applied to this case. The off-duty officer developed probable cause for a DUI as prohibited in chapter 316. A Fresh Pursuit stop is authorized for such violation. Pursuant to the Fellow Officer Doctrine the arresting officer properly relied on the off-duty officer’s information to pursue the defendant outside the officer’s jurisdiction and make the stop. The arresting officer began the chase outside his jurisdiction and made the stop outside his jurisdiction . Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999).

10.  If an officer of one county makes an arrest in another county, that officer must notify the officer in charge of the jurisdiction where the arrest is made. Both officers must, without unnecessary delay, take the arrested person before a county judge or committing magistrate of the county where the individual was arrested. §901.25(3) Fla. Stat.

11.  An officer may make an arrest outside of his jurisdiction pursuant to the "hot pursuit" doctrine. This principle authorizes an officer who observes the commission of a crime inside the city limits, to pursue the defendant into another city to make the arrest. §901.25 Fla. Stat.(1987); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1983), affirmed, 455 So. 2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 4th DCA 1982).

12.  Where an officer is investigating an accident and the defendant has left the scene of the accident, the officer may arrest him outside of his jurisdiction, because leaving the scene of an accident is a continuing offense and the officer is effectively in fresh pursuit. State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985).

13.  An officer can follow a suspect into a neighboring community based solely on reasonable suspicion of a traffic infraction, and lawfully make a DUI arrest outside the officer’s city based on the conduct of the defendant in the other jurisdiction. State v. Joy, 637 So. 2d 946 (Fla. 3d DCA 1994).

14.  An officer (Officer A) from one city saw the involved vehicle swerving and being operated erratically within his city. Officer A sent out a radio transmission and another officer from his city (Officer B) responded. Officer A continued to follow the vehicle and clearly developed probable cause for a DUI stop. Officer B did not see any erratic driving, but relied on Officer A’s observations, which were communicated to him. Ultimately, both officers stopped the vehicle outside the city limits of their city. Officer B arrested the driver because he appeared drunk and failed the field sobriety tests. He refused a breath test. The hearing officer found that the arresting officer had probable cause. On certiorari, the circuit court reversed, finding that Officer B did not have probable cause, was not in "fresh pursuit" and could not rely on the "fellow officer rule" because the case did not involve a felony. On appeal the court reversed. The court found that the arrest was authorized by §901.25. "Fresh pursuit includes misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside her jurisdiction for committing the offense within the jurisdiction. Edwards." The court also found that, "The fellow officer rule applies to misdemeanor as well as felony offenses." Department of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

15.  An off-duty officer observed the defendant driving erratically within the officer’s jurisdiction and followed her outside of his jurisdiction. He contacted an on-duty officer from his jurisdiction who made the stop outside that jurisdiction. The on-doing officer did not witness any bad driving. As a result of the stop, evidence of DUI was generated. The defendant was arrested for DUI. The defendant moved to suppress the evidence on the theory that the off-duty officer had no authority to make the arrest. The county judge denied the motion and certified these two questions to the district court: (1) "Whether an off-duty police officer is an officer for purpose of Florida Statutes 901.18, 901.25(2) and the ‘fellow officer’ doctrine." (2) "Whether an officer is in ‘fresh pursuit’, within the meaning of Florida Statute 901.25, where his testimony establishes that he has probable cause to arrest a suspect for violations of law committed in his jurisdiction, and he follows the suspect into a foreign jurisdiction with the intention to have the suspect stopped or arrested, and takes actions which lead to such arrest by another officer that he summoned from his jurisdiction, although he testified that he was not in ‘fresh pursuit’." The appellate court answered both questions affirmatively. An off-duty officer has authority to make an arrest pursuant to §790.052 Fla. Stat. Thus, the off-duty officer had the authority to summon aid pursuant to §901.18 Fla. Stat., but this statute was not the basis for a lawful arrest here. Although, the off-duty officer summoned the aid, that officer did not make the arrest or participate in it as required by §901.18. The off-duty officer could provide information which could be properly relied on under the fellow officer rule. Here the off-duty officer had probable cause and under the fellow officer doctrine the on-doing officer could rely on that as the basis for the stop and arrest. He did not have to have any other basis for probable cause. However, in this case the officer developed probable cause for DUI after the stop. The off-duty officer’s information provided a proper basis for the stop. The Fresh Pursuit Doctrine is set forth in §901.25 Fla. Stat. It applied to this case. The off-duty officer developed probable cause for a DUI as prohibited in chapter 316. A Fresh Pursuit stop is authorized for such violation. Pursuant to the Fellow Officer Doctrine the arresting officer properly relied on the off-duty officer’s information to pursue the defendant outside the officer’s jurisdiction and make the stop. The arresting officer began the chase outside his jurisdiction and made the stop outside his jurisdiction . Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999). See also State v. Greer, 761 So. 2d 343 (Fla. 4th DCA 1999).

16.  A citizen discovered two men burglarizing his vehicle. He called the police and described the offenders their vehicle. An officer located the vehicle within ten minutes at a car wash and stopped them outside the officer’s jurisdiction. The defendant moved to suppress the defendant’s confession and tangible evidence on the grounds that the stop was unlawful. The State argued that the officer was in fresh pursuit. The trial judge granted the motion. The appellate court affirmed because the vehicle was not spotted until it was outside of the jurisdiction and burglary is not a continuing offense. State v. Greer, 761 So. 2d 343 (Fla. 4th DCA 1999).

17.  Police officers received a BOLO that an armed robbery had occurred within their city. Two officers were traveling in the vicinity of the robbery. In response to the BOLO and based on additional information provided by an off-duty officer, the two officers immediately drove a short distance and entered an interstate in an effort to locate the vehicle and individuals described in the BOLO. The officers traveled on the interstate into another city, five to seven miles from the scene of the crime. Within three to three and half minutes of receiving the BOLO, the officers observed a vehicle that matched the description in the BOLO traveling at a high rate of speed. The officers followed the vehicle and saw that it had the number of black males indicated in the BOLO. They continued to follow the car for about one or one and half miles and put on their flashing lights. The car continued at a high rate of speed. This all took place in a city other than the one where the officers were employed. The vehicle pulled into an apartment complex and the occupants fled. The officers were able to detain the defendant. The officers observed material from the robbery in the car and arrested the defendant. The officers were outside their jurisdiction from the time they observed the vehicle to the time that they made he arrest. The defendant moved to suppress. The trial judge denied it because the officers were in fresh pursuit. On appeal the defendant argued that the decision in State v. Greer compelled a different result. The appellate court affirmed for reasons set forth hereafter. "[F]resh pursuit encompasses: 1) that the police act without unnecessary delay; 2) that the pursuit be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of the offense and the commencement of the pursuit and apprehension of the suspect. We adopt these criteria for establishing what constitutes fresh pursuit.... [T]here is no logical reason why the pursuit should not be deemed a ‘fresh pursuit’ when the officers responded without unnecessary delay to the BOLO and, in continuous and uninterrupted fashion, sought and apprehended the occupants of the white Cadillac within a matter of minutes. This is not an instance where the robbery was committed in another jurisdiction and these officers took it upon themselves to make an arrest outside their jurisdiction; nor is this an instance where there was an extended time lapse between the commission of the robbery, the issuance of a BOLO and the apprehension of the perpetrators... There are insufficient facts outlined in Greer to determine whether the suppression of the evidence would be affirmed under the criteria for fresh pursuit that we enunciate in the instant case. The facts outlined in Greer do not reflect whether the pursuit was "continuous and uninterrupted." Rather, they only show that a BOLO was issued and ten minutes later the defendant was apprehended at a car wash located outside the officer's jurisdiction. However, to the extent our opinion in the instant case conflicts with Greer, we hereby recede from it. Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000).

F.  Citizen’s arrest.  [Back]

1.  An officer may make an arrest outside of his jurisdiction as a private citizen for a felony or a breach of peace occurring in his presence or for a felony based on probable cause. Wilson v. State, 403 So. 2d 982 (Fla. 1st DCA 1980); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); Collins v. State, 143 So. 2d 700 (Fla. 2d DCA), cert. denied, 148 So. 2d 280 (Fla. 1962); Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA), rev. denied, 475 So.2d 694 (Fla. 1985); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1983), affirmed, 455 So. 2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 4th DCA 1982). In order for this arrest to be lawful two elements must be met: (1) the officer must have probable cause to believe the defendant has committed a felony and (2) he must believe that the defendant has committed a felony. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

2.  The dissent in State v. Sobrino, supra, contains an excellent discussion of the law on citizen's arrest.

3.  There are limitations on the application of this principle.

a.  An officer cannot make an arrest under color of office outside of his jurisdiction, but that principle has been interpreted to mean that he cannot use his authority to observe criminal activity or to secure evidence that he could not have otherwise obtained. v. Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); State v. Moonie, 505 So. 2d 575 (Fla. 4th DCA 1987). The fact that he is in a police cruiser, in uniform and identifies himself as an officer has been construed by the court to not constitute "color of office". Phoenix v. State, 455 So. 2d 1024 (Fla. 1984).

b.  An officer making a stop outside of his jurisdiction was not operating under color of office where he was wearing his city police uniform, operating a police cruiser, and used his blue lights to detain the individual. State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1999).

c.  An officer cannot make a terry stop as a private citizen. State v. Schuyler, 390 So. 2d 458 (Fla. 3d DCA 1980).

d.  An officer cannot make a stop to issue a citation for a civil infraction as a private citizen. Schachter v. State, 338 So. 2d 269 (Fla. 3d DCA 1976).

e.  An officer has no authority to make a stop outside his jurisdiction unless there are exigent circumstances or he is in fresh pursuit. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

4.  The following cases illustrate the application of these principles.

a.  An officer, while outside of his jurisdiction, saw the defendant's vehicle: (1) cross the center line three to seven times, (2) force approaching vehicles onto the berm, but not completely off the roadway, and (3) almost hit a bridge abutment before coming to a halt. The officer managed to stop the defendant, identified himself as an officer and detained the defendant. The court held that this was a valid citizen's arrest because such behavior constituted "a breach of the individual and collective peace of the people." This decision supports the lawfulness of an arrest by an officer outside of his jurisdiction as long as the nature of the DUI justifies the conclusion that the activity is endangering life or property. Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA), rev. denied, 475 So.2d 694 (Fla. 1985).

b.  Where an officer observes erratic driving resulting in an accident he may make an arrest as a private citizen. State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985).

c.  An officer received a report about a truck being all over the road. He located the truck and saw it cross the center line several times. This took place outside the officers jurisdiction. The court held that the officer made a lawful citizen’s arrest for breach of the peace. The court rejected any requirement that vehicles be forced off the road as in Edwards and ruled that "‘operating a motor vehicle while intoxicated is an activity which threatens the public security and involves violence. As such, it amounts to a breach of the peace.’" State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1999).

G.  Scope of search.   [Back]

1.  Probable cause to search a vehicle does not give officers authority to do a body search of the passengers in the vehicle. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 310 (1948). See also Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

2.  If there is probable cause to believe that a lawfully stopped vehicle contains contraband or evidence of a crime, officers may search any part of the vehicle and anything that it contains that may hide the object of the search. The officers "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched.’" 102 S.Ct. At 2160. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). See also Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

3.  If there is probable cause to believe that a lawfully stopped vehicle contains contraband or evidence of a crime, officers may search any of the passenger’s belongings that are in the vehicle "that are capable of concealing the object of the search." In this case, the Court upheld the search of the passenger’s purse where there was probable cause to believe that there were narcotics in the car. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

4.  "The Court in Ross put it this way: ‘The scope of a warrantless search of an automobile ... is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ 456 U.S., at 824, 102 S.Ct., at 2172. It went on to note: ‘Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment." California v. Acevedo, 500 U.S. 565, 111 S. Ct.1982, 114 L. Ed. 2d 619 (1991).

5.  "Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." This case overruled United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.d.2d 538 (1975). See also Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235. California v. Acevedo, 500 U.S. 565, 111 S. Ct.1982, 114 L. Ed. 2d 619 (1991).

6.  An officer smelled the odor of marijuana coming from a vehicle that he had lawfully stopped and then smelled it on the person of the defendant, who had exited the vehicle. The officer searched both the interior of the vehicle and the trunk and found a container in the trunk. It contained marijuana. Before searching the vehicle, the officer did a pat down of the defendant and discovered a baggie of marijuna. He arrested the defendant .The trial court denied a motion to suppress all of the marijuana. On appeal, the Supreme Court affirmed. "[I]t is important at the outset to analyze the limited occasions upon which the United States Supreme Court has spoken regarding the automobile exception to the warrant requirement. There are three principal cases which impact the question presented here. In 1925, Chief Justice Taft penned the opinion of the Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Faced with a situation in which federal prohibition agents had stopped and searched the automobile of suspected bootleggers without a warrant, the Court held: ‘[T]he true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. ‘ Id. at 149, 45 S.Ct. 280. With this opinion, the Court created what has become known as the automobile exception to the warrant requirement. The Court concluded that because probable cause existed, the government agents could search ‘behind the upholstering of the seats’ for contraband. Id. at 136, 45 S.Ct. 280. As the opinion did little to elaborate upon the scope and limitations upon the exception, the actual definition of the exception remained extraordinarily unclear. Probably the most important decision of the United States Supreme Court for guidance in the instant action is United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). First, the Court established there the scope of the Carroll automobile exception to the warrant requirement. The Court stated, ‘The scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause.’ Id. at 823, 102 S.Ct. 2157. Indeed, the scope of a warrantless search of a car ‘is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ Id. at 824, 102 S.Ct. 2157. Thus, the crux of the Ross holding was that it is the extent of the law enforcement officer’s probable cause in each particular situation that defines the permissible magnitude of the warrantless search. After defining the scope of the automobile exception in the broad fashion described above, Justice Stevens specifically addressed two seemingly recurrent factual scenarios within the Ross opinion. First, he spoke to the situation in which law enforcement officers have probable cause to search a specific item or container, which is eventually placed within an automobile. In this setting, ‘[p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ Id. Thus, when probable cause only concerns one specific item and the police know where that item is within the automobile, their warrantless search cannot extend to other areas of the car. The second facet of the Ross opinion addresses the situation in which more generalized probable cause to search an automobile is possessed by the police. In this type of situation, the police do not know where the contraband is contained within the car, but they only have probable cause to believe that it is within the confines of the vehicle. Faced with this situation, the Court stated that ‘[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’ Id. at 825, 102 S.Ct. 2157. Finally, in 1991 the Supreme Court further refined the law in this area with its decision in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The Court reaffirmed the first facet of Ross by holding that where police officers knew that contraband had been placed in the trunk of a vehicle, while they could open the container within which the contraband had been secreted, their probable cause to search for that contraband did not extend beyond the trunk area to the rest of the vehicle. See id. at 580, 102 S.Ct. 2157. Specifically, the Court stated that ‘[t]he facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.’ Id. However, nowhere in the opinion did the Court restrict the other component of its prior Ross holding. Thus, we conclude that the legitimate scope of the power of police officers to search an entire automobile, based upon the Ross generalized probable cause to do so, was not altered by the United States Supreme Court's Acevedo opinion. It is our view that Acevedo did not speak directly on the issue before us today, so we must conclude the district court misapplied Acevedo in its decision below. As previously noted, the Supreme Court’s Acevedo opinion addressed the situation in which police officers suspected that a certain compartment or area of a motor vehicle contained contraband. See Acevedo, 500 U.S. at 580, 111 S.Ct. 1982. In that scenario, ‘p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’ id. The Supreme Court, however, did not speak on the situation in which the police officer has probable cause to believe the car contains contraband, but does not know precisely where it is secreted within the vehicle-precisely the issue before us today.... As Acevedo is inapposite here, the United States Supreme Court opinion most applicable to the facts before us is the Ross decision. There, the Supreme Court stated, ‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of that vehicle and its contents that may conceal the object of the search.’ 456 U.S. at 825, 102 S.Ct. 2157. Certainly, the broad statements contained in the Supreme Court’s Ross opinion guide our decision here. Indeed, the Court’s pronouncements in Ross alone could dictate a conclusion in the instant case.... [T]he police officer here had probable cause to search both the passenger compartment and the trunk of Betz’s automobile. First, of course, Officer Harrold smelled ‘a very strong odor of marijuana coming directly out’ of the respondent’s car window. As the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed, this unquestionably provided the police officers on the scene probable cause to search the passenger compartment of the respondent’s vehicle.... In addition to the marijuana odor, Officer Harrold testified that Betz attempted to draw him away from the vehicle by exiting the vehicle and approaching him before he could reach the rear of Betz’s auto. Betz also became extremely ‘nervous’ and ‘jittery’ during his pre-search interaction with Officer Harrold. When the police officer attempted to pat-down search the respondent, he pushed off of the car two times during the frisk--twice acting in an extraordinarily suspicious manner. Finally, during his frisk of the respondent, Officer Harrold found and confiscated a storage bag containing marijuana. Considering the totality of the circumstances presented to the police here, we conclude that Officer Harrold possessed probable cause to search the entirety of the respondent's automobile, including the trunk. ... Based upon the foregoing, we hold that based upon the totality of the circumstances within the perception of the law enforcement officers in the instant case, probable cause to search the entirety of the respondent's vehicle existed. Therefore, we quash the Second District's decision below. Additionally, we approve the result reached by the Fifth District Court of Appeal in State v. Jarrett, 530 So.2d 1089 (Fla. 5th DCA 1988). State v. Betz, 815 So. 2d 627 (Fla. 2002).

7.  The entire vehicle can be searched including trunk and engine compartment. Cole v. State, 559 So. 2d 622 (Fla. 3d DCA 1990); Hall v. State, 562 So. 2d 714 (Fla.1st DCA 1990).

8.  The trained trooper had probable cause to search the entire vehicle when the trooper saw marijuana seeds in the tray of the car door. Greene v. State, 532 So. 2d 1309 (Fla. 5th DCA 1988).

9.  The odor of burnt marijuana coming from a vehicle gives an officer probable cause to stop the vehicle and to search the entire passenger compartment and all of its occupants. State v. Betz, 815 So. 2d 627 (Fla. 2002). See also State v. K.V., 2002 WL 1332506 (Fla. 4th DCA June 19, 2002).

10.  If it was a vehicle search incidental to a lawful arrest, was the defendant "a recent occupant" of the vehicle, which would allow a search of the interior of the vehicle and all sealed containers found therein? New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

a.  Where an officer makes a lawful arrest of the driver of a vehicle the officer may search the inside of the car and all the containers found in it. "[A] hatchback which can be reached from inside the car is part of the passenger compartment and, thus, subject to search." State v. Dexter, 596 So. 2d 88 (Fla. 2d DCA 1992).

b.  The decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981, establishes a "'straightforward rule' that the scope of a search incident to an arrest includes the interior of an automobile where the arrestee is a recent occupant of the automobile." In this case, the driver of the vehicle was lawfully arrested and a search revealed drugs in the passenger's purse which was found in the interior of the vehicle. It was closed. The passenger argued that the search was unlawful because she had not consented. On appeal the court ruled that under Belton the search of the purse was lawful even though it belonged to the passenger and the passenger did not consent. State v. Moore, 619 So. 2d 376 (Fla. 2d DCA 1993).

c.  The defendant was on the street and no where near his vehicle. He was detained by officers and officers took his car keys and searched the "car even though [the defendant] was not in or near the car at the time of his detention." The defendant had admitted that officers would probably find marijuana in the car. The state argued that this admission gave the officers probable cause. They did find drugs in the car. A motion to suppress was denied. On appeal the court reversed. "Officers are allowed to search a vehicle incident to the lawful arrest of a recent occupant. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Here [the defendant] was never seen in or near the vehicle. Even if he were lawfully in the officers' custody when they learned where his car was parked, they had no legal basis to search his car without a warrant or his consent. The search was too remote in both place and time to be justified as a search-incident-to-arrest." Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

d.  The defendant was arrested for a misdemeanor. The court upheld a search of her vehicle because she was a recent occupant. "The Belton rule is ‘applicable to all cases involving the arrest of a recent occupant of an automobile, without regard to the facts in the particular case.’ Chapas v. State, 404 So.2d 1102, 1104 (Fla. 2d DCA 1981)." State v. Ciucio, 548 So. 2d 1184 (Fla. 2d DCA 1989).

e.  The defendant was arrested for urinating in the street behind a car. Officers searched that car incident to the arrest. On appeal the court held that the search was unlawful because there was no proof that the defendant was a recent occupant of the vehicle. Patrick v. State, 603 So. 2d 640 (Fla. 2d DCA 1992).

f.  The defendant had an accident, left the vehicle, and came back to try to retrieve the vehicle. The defendant was arrested two and half hours after the defendant left the vehicle. Officers searched the vehicle. The court ruled that the search was unlawful because the defendant was not a recent occupant of the vehicle, since he had been out of the vehicle for two and half hours. State v. Vanderhorst, 419 So. 2d 762 (Fla. 1st DCA 1982).

g.  EXTREMELY IMPORTANT! The defendant pulled up to a house where arrests were being made for narcotics crimes. An officer saw him drive up. The defendant exited his vehicle and the officer met him at the rear of the defendant's car. The officer asked the defendant for his driver's license. A license check revealed an outstanding warrant. The officer arrested the defendant and searched his car. Five minutes elapsed between arrest and search of car. That search revealed contraband. The trial judge granted a motion to suppress. On appeal the court reversed. The trial judge relied on State v. Howard, 538 So.2d 1279 (Fla.5th DCA 1989). The appellate court distinguished Howard and relied on Belton. The Supreme Court reversed the district court and ruled "that Belton's bright-line rule is limited to situations where the law enforcement officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant, and the officer subsequently arrests the defendant regardless of whether the defendant has been removed from or has exited the automobile. Applying the aforementioned analysis to the present situation, the record is clear that the defendant did not exit the vehicle upon the direction of the law enforcement officer. Because Belton does not apply, the trial court must determine whether the factors in Chimel justify the search of Thomas's vehicle." That means pursuant to Chimel, the trial court must determine whether the officer’s safety was endangered or whether the preservation of evidence was in jeopardy. Thomas v. State, 761 So. 2d 1010 (Fla. 1999). See also Patty v. State, 768 So. 2d 1126 (Fla. 2d DCA 2000).

h.  "In Thomas, the supreme court held that the police are authorized to search a car incident to arrest under a Belton analysis only if "the law enforcement officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant" while the defendant is still in the car. Thomas, 761 So.2d at 1014. Absent such a confrontation, the police can search the vehicle only under a case-by-case analysis of the factors set out in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This generally means that the search is permissible only to preserve evidence or protect the officer's safety. Preservation of evidence and protection of officer safety were not issues in this case, and the facts did not justify a search of Mr. Kavallierakis's vehicle under a Chimel analysis. Consequently, the State had the burden to establish that the police officer initiated contact with Mr. Kavallierakis while he was still in the car. We conclude that Thomas requires proof that the police contact is confrontational in nature. In this case, at best, the State presented evidence that the officer greeted Mr. Kavallierakis in a friendly manner while he was exiting the car or moments thereafter. Because the State failed to prove the necessary confrontational contact, we must reverse the trial court." The trial court denied a motion to suppress evidence seized when the officer stopped the vehicle and searched the vehicle after the defendant existed. Kavallierakis v. State, 790 So. 2d 1201 (Fla. 2d DCA 2001).

i.  An officer made a lawful traffic stop and subsequently lawfully arrested the defendant for witness tampering. The search of the vehicle was lawful. "An officer may search the passenger compartment of a vehicle and examine the contents of any container therein following the lawful custodial arrest of a defendant. Consent is not needed. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). " State v. Emmanuel, 779 So. 2d 310 (Fla. 2d DCA 1998).

11.  Officer had consent to search a vehicle. He observed a panel ajar and based on his many years of experience and the other circumstances of the stop he had probable cause to pry open the panel. Those circumstances included speeding, confusion about destination and point of origin, and nervousness. State v. Ramirez, 625 So. 2d 119 (Fla. 5th DCA 1993).

12.  The areas of the passenger compartment in which a weapon may be placed or hidden may be searched if the officer has "a reasonable belief based on specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." State v. Gonzalez, 562 So. 2d 705 (Fla. 3d DCA 1990); Stanley v. State, 559 So. 2d 460 (Fla. 4th DCA 1990); Morales v. State, 557 So. 2d 893 (Fla. 4th DCA 1990).

13.  A stop for a traffic violation justifies a detention solely for the purpose of issuing the citations. Officers did not have the right to pat down and search a defendant, who was a passenger, because he kept sticking his hand in his pocket when they had no reason to believe he was armed. E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991).

14.  "When an officer in a roadside encounter perceives a threat to safety founded on articulable facts and rational inferences which would warrant a reasonably prudent person's fearing a danger, the officer may conduct a weapons search of the passenger compartment." Snelling v. State, 591 So. 2d 246 (Fla. 4th DCA 1991).

15.  Officers chased down a vehicle because it had an expired temporary tag. When the driver could not produce a license the officers asked the occupants to exit. The defendant was a passenger and he made "a furtive movement". An officer did a pat down and discovered a gun. The officer who did the search said it was because of the movement, but other officers said it was because the defendant fit a profile. The trial judge granted a motion to suppress. On appeal the Court reversed and said that the furtive movement was sufficient for a pat down of the defendant even though some reasons given by other officers would not have warranted a pat down. State v. T.P., 588 So. 2d 286 (Fla. 3d DCA 1991).

16.  When the driver of a vehicle commits a traffic infraction, he or she subjects himself or herself to the inconvenience of the stop and a drug dog sniff of the car so long as it is "conducted within the time required for the issuance of the citation." In this case when the officer ordered the parties out of the car, he ordered the passenger over her objection to leave her purse in the car during the drug dog sniff. If the officer was concerned about the contents of the purse for safety reasons as he claimed, he could have patted the purse down. Requiring the passenger "to leave it behind so that it would be exposed to a drug sniff is an impermissible seizure. If the officer cannot extend a lawful stop beyond the time it takes to write a citation in order to have the k-9 unit perform its task ... certainly he may not subject those who are not being 'detained' under any lawful authority to such a test." The court concluded that both the defendant and her property were seized. McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995).

H.  Forced exit of occupants.  [Back]

1.  "[O]nce a vehicle has been lawfully stopped, a police officer may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L. Ed.2d 331 (1977)." State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995).

2.  The rule in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L. Ed.2d 331 (1977) has been extended to passengers. If an officer lawfully stops a car, the officer may order the passengers to exit the vehicle without any additional grounds for such action. This is based purely on officer safety and establishes a bright line test. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

3.  The occupants may be required to exit the vehicle after a traffic stop. State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

4.  An order to exit a vehicle is a Fourth Amendment seizure. An officer may order passengers as well as drivers to exit the vehicle during a traffic stop, "as a protective measure for his own safety, without any additional evidence of wrongdoing or danger." In this case, an officer ordered a passenger to exit a vehicle. Here the detention was unlawful because it clearly had nothing to do with officer's safety. The officer did not even maintain that it did. The defendant in this case kept being verbally abusive to the officer. "More importantly, [the officer] did not initially make such an order and never disturbed the two rear-seat passengers at all. It is therefore obvious that the order was issued to [the defendant] alone because of his 'hostile-attitude.' This is not constitutionally enough." R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996).

5.  Officers "may order a passenger to get out of a lawfully stopped vehicle without reasonable suspicion. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)." J.B. v. State, 718 So. 2d 1280 (Fla. 4th DCA 1998); State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

I.  Was the search the result of an unlawful pretextual stop?   [Back]

1.  Development and changes in legal standards.  [Back]

a.  In Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987), the Court upheld a stop for an illegal turn even though the officers would not have stopped the defendant but for the fact that he was a suspect in a murder. It appeared that the Court adopted the rule set forth in State v Ogburn, 483 So. 2d 500 (Fla. 3d DCA 1986), which was that stopping a person for a minor traffic infraction to investigate unrelated criminal activity is not an unlawful pretext stop if any citizen could be stopped for the infraction. See also, Mullins v. State, 366 So. 2d 1162 (Fla. 1978); Bascoy v. State, 424 So. 2d 80 (Fla. 3d DCA 1982).

b.  The Hansbrough decision was clarified in Kehoe v. State, 521 So. 2d l094 (Fla. 1988), where officers stopped the defendant for having a bent tag in order to investigate unrelated criminal activity. The Supreme Court noted that it is unlikely that a reasonable officer would have stopped the defendant solely for that violation and that the defendant was really stopped because of suspicion of other criminal activity. The Court recognized the fact that "When the police realize that they lack a founded suspicion, they sometimes attempt to justify a stop on some obscure traffic violation." The Court said: "Police officers ordinarily would likely stop somebody for making an illegal turn. For this reason Hansbrough is not controlling in situations where the traffic violation is too minor to warrant detention absent some other motivation. We decline to adopt the Ogburn 'could arrest' approach. . . . This Court . . . will not allow officers to get around the fourth amendment's mandate by basing a detention upon a pure pretextual stop. The state must show that under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose."

The Court dealt with the following certified question: "Does the ruling in Kehoe v. State, 521 So.2d 1094 (Fla.1988), require suppression of evidence obtained as a result of the stop of a motor vehicle for a minor traffic violation where there is no evidence that the stop was pretextual, but the state fails to affirmatively establish by evidence that a reasonable police officer would have routinely stopped a motor vehicle for the same violation?" The Court answered with a qualified affirmative. In answering this question, the Court reviewed the U.S. Supreme Court decisions and other decisions and concluded that there are three different approaches to this issue, and the U.S. Supreme Court has not resolved the matter. The three approaches are: (1) the subjective approach (officer's actual intent); (2) objective test (stop lawful if officer lawfully could have made stop); (3) reasonable officer approach (stop lawful if a reasonable officer would have made the stop based on the traffic offense without some other reason). The last of these is the test adopted in Kehoe v. State 521 So.2d 1094 (Fla.1988). "The reasonable officer test is better suited for an individualized inquiry because it also asks 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? If the answer is "yes," then the stop was lawful even if a pretextual motive may have influenced the officer's actions. As is obvious, this test by definition would never bar a stop where there is probable cause to suspect more serious offenses, including felonies or crimes involving harm or the threat of harm to others, or where exigent circumstances exist. More serious offenses always will provide independent justification, however pretextual the stop may be. Rather, the reasonable officer test applies exclusively where a stop is justified solely by a minor infraction, generally those that are purely regulatory in nature and that do not address conduct potentially harmful to other persons or property." The Court adopted the position set forth in United States v. Bates, 840 F.2d 858 (11th Cir.1988). The Court concluded that in this case the court adopted a rule "that a stop for a minor infraction cannot be deemed pretextual on appeal where (1) the officer was acting within 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 intentions, as demonstrated by the fact it was a usual police practice, and (3) the trial court has so found." The Court found that this was generally consistent with state decisional law. "[T]he fact that a stop fails under the reasonable officer test does not warrant dismissal of evidence if some other valid basis for the stop existed, including a probable-cause arrest or arrest by warrant." The Court also relied on the decisions in Doctor v. State, 596 So. 2d 442 (Fla.1992) and State v. Riley, 638 So. 2d 507 (Fla.1995), in support of the proposition that if the stop was for conduct that is not unlawful, the stop is improper regardless of what the evidence shows concerning the pretext issue. "In other words, it did not matter whether the trial court below had found competent substantial evidence that these stops were a routine practice of similar officers, because the stops were inherently contrary to law. Even customary practices cannot transform an illegal act into a legal one." State v. Daniel, 665 So. 2d 1040 (Fla. 1995), overruled by, Holland v. State, 696 So. 2d 757 (Fla. 1997).

d.  IF THE OFFICER HAD PROBABLE CAUSE TO STOP FOR EVEN A MINOR TRAFFIC VIOLATION, THE STOP WAS LAWFUL AND ANY EVIDENCE OBSERVED AS A RESULT OF THE STOP, CAN LAWFULLY BE SEIZED EVEN IF THE OFFICER WOULD NOT HAVE MADE THE STOP IN THE ABSENCE OF SOME OTHER REASON SUCH A DRUG INTERDICTION. THIS EFFECTIVELY OVERRULES KEHOE V. STATE, 521 SO.2D 1094 (FLA.1988) AND RETURNS US TO THE APPLICATION OF THE "COULD NOT" STANDARD. If an officer "could not" have made the stop, it was invalid. If an officer could have made the stop, it was valid, even if a reasonable officer "would not" have made the stop except for some motive other than traffic enforcement. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

e.  "Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests--such as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U.S. ---- (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), or physical penetration of the body, see Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The making of a traffic stop out-of-uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact." Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

f.  "[T]he use of the reasonable officer test as set out in Daniel is overruled by the objective test of Whren....When applying the objective test, generally the only determination is whether probable cause existed for the stop in question." The Court noted that in Whren the Court recognized that there a few rare exceptions to the general rule that a stop based on probable cause is reasonable. A balancing test is required only where the search and seizure was conducted in a manner unusually harmful to the subject's privacy interest or physical interests. Whren gives these four examples: (1) seizure by deadly force; (2) physical penetration of the body, (3) warrantless entry into a home; and (4) unannounced entry into a home. The Florida Court also recognizes that there may be other exceptions as well, but they must be of the same serious nature and being stopped by an unmarked car with flashing emergency lights in a high crime area does not rise to that level. The mere fact that there might have been criminals in the car is not sufficient. Holland v. State, 696 So. 2d 757 (Fla. 1997).

g.  "The United States Supreme Court in Whren eliminated the reasonableness inquiry regarding an officer’s stop of a vehicle and substituted a strict objective test which asks only whether any probable cause for the stop exists." This test is to be applied retroactively. State v. Thomas, 714 So. 2d 1176 (Fla. 2d DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001).

2.  The following cases illustrate the application of these principles.

Some examples post Whren.   [Back]

(1) The defendant's vehicle was stopped for a traffic infraction. She was arrested for driving on a suspended license and evidence was seized. She moved to suppress and argued that a reasonable officer would not have stopped the defendant for the infraction in the absence of some other motive. That was the Kehoe test. The trial judge denied the motion to suppress, On appeal the court affirmed based on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The court concluded that Article I, Section 12, Florida Constitution, required that the court follow this decision. Petrel v. State, 675 So. 2d 1049 (Fla. 4th DCA 1996). See also State v. Corvin, 677 So. 2d 947 (Fla. 2d DCA 1996) [Stop for operating a vehicle without a validation sticker in violation of § 320.07 was valid under Whren]; Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996); State v. Nurock, 680 So. 2d 629 (Fla. 4th DCA 1996)[test now is whether the officer "'could have'" made the stop not whether he "'would have'"].

(2) Officers observed conduct that caused them to believe that the defendant may have been involved in a drug transaction. While following him the officers observed that the defendant's tag had expired and stopped him and observed contraband. Pursuant to Whren this stop was lawful even if the officer had another reason for the stop. State v. Stachell, 681 So. 2d 802 (Fla. 2d DCA 1996).

(3) Officer stopped the defendant's car for speeding and because he left the residence which was the subject of a search warrant. The defense sought suppression of evidence seized because the stop was a pretext. "Under Whren v. United States U.S. , 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), any temporary detention of a motorist who has committed a traffic violation is permissible, regardless of whether ‘a reasonable officer’ would have made the stop." The officer made the stop for speeding. That was proper even though the officer had another motive. State v. Kinnane, 689 So. 2d 1088 (Fla. 2d DCA 1996).

(4) An officer stopped the defendant for running a stop sign, which ultimately resulted in the discovery of evidence. The trial judge ruled that the stop was pretextual under the Kehoe test and suppressed the evidence. The officer who made the stop was a member of special drug enforcement unit and the trial judge decided that the primary motive for the stop was to check for drugs. On appeal the court reversed because running a stop sign was a direct violation of a Florida statute and a valid reason for the stop. In the alternative, the court found that the decision in Whren has abandoned the reasonable officer test and replaced it with the objective test of whether the officer had probable cause to believe that there had been a violation of the law. The court also certified the question of whether Whren overrules State v. Daniel, 665 So. 2d 1040 (Fla. 1995) to the Supreme Court. State v. Holland, 680 So. 2d 1041 (Fla. 1st DCA 1996); affirmed, 696 So. 2d 757 (Fla. 1997).

(5) A stop for inoperable taillight and brake light on driver’s side was proper under Whren and Holland. State v. Snead, 707 So. 2d 769 (Fla. 2d DCA 1998). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001)(stop for inoperable trailer taillight was lawful).

(6) A stop because the turn signal on the defendant’s car was not operating, was based on probable cause and was proper. The fact that the defendant said it was operating was a credibility matter to be resolved by the trial judge. Scott v State, 710 So. 2d 1378 (Fla. 5th DCA 1998).

(7) An officer had probable cause for a stop where the officer observed the vehicle cross over the center line twice and impeding traffic by traveling far below the normal speed limit. State v. Thomas, 714 So. 2d 1176 (Fla. 2d DCA 1998).

(8) The officer had probable cause for a stop when he saw the vehicle being driven across the grassy median which divided the north and south bound traffic. State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).

(9) The defendant was stopped in New Jersey because the vehicle tag was improperly displayed. As a result of the stop, officers discovered evidence of a murder. "According to the trooper's testimony, an improper display of a license plate constituted a motor vehicle violation under New Jersey law. As we explained in Holland v. State, 696 So.2d 757, 759 (Fla.1997), the violation of a traffic law provides sufficient probable cause to make a lawful stop under the objective test laid out by the United States Supreme Court in Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (constitutional reasonableness of traffic stop is not dependent on actual motivations of individual officers). Thus, this alleged traffic violation provided probable cause for the trooper to stop Glock and Puiatti. See Whren, 517 U.S. at 810, 116 S.Ct. 1769." Glock v. Moore, 776 So. 2d 243 (Fla. 2001).

(10) An officer stopped the defendant for having unlawfully tinted windshields, but the officer admitted that he would have stopped any vehicle matching the description of the vehicle based on what another officer had told him concerning drug activity. The trial judge found that the stop was an unlawful pretext and granted a motion to suppress evidence seized as a result of the stop of the vehicle. On appeal, the court reversed. "Reviewing the record under the objective test of Whren, and assuming for the purpose of Fourth Amendment analysis that the trial judge accepted as credible the testimony of both officers, we find that the stop of the vehicle would have been justified by the officer's observation of the dark tinted windows, which gave him probable cause to believe that they were illegally tinted. The officer was then justified in detaining the driver only for the time reasonably necessary to issue a citation or warning, or to determine that the window tint was in fact legal, unless he had a reasonable suspicion of criminal activity. (citations omitted) The officer's testimony that he stopped the vehicle because the windows appeared to be illegally tinted was unrebutted, and there is no indication in this record that the trial judge did not find his testimony credible." State v. Moore, 791 So. 2d 1246 (Fla. 1st DCA 2001).

b.  Some examples pre-Kehoe.   [Back][In light of Whren these cases could be of interest].

(1) In the following cases, which predated Kehoe v. State, the district courts held that the stop was an unlawful pretext: Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975), overruled in part on other grounds, 403 So. 2d 349 (Fla. 1981) [a bent, partially illegible tag was not sufficient to justify stop]; State v. Holmes, 256 So. 2d 32 (Fla. 2d DCA 1971), affirmed, 273 So. 2d 753 (Fla. 1973); State v. Gray, 366 So. 2d 137 (Fla. 2d DCA 1979); Wilhelm v. State, 515 So. 2d 1343 (Fla. 2d DCA 1987) [defective tail light, tag light or clearance light were too minor to justify stop]; Diggs v. State, 345 So. 2d 815 (Fla. 2d DCA 1977) [even though officer had a reason to believe the defendant did not have a license, a stop to check the license was found to be a pretext stop].

(2) In the following cases, which predated Kehoe v. State, the district courts held that the stop was not an unlawful pretext: Urquhart v. State, 261 So. 2d 535 (Fla. 2d DCA 1971) [exceeding speed limit by 15 m.p.h. was sufficient to justify stop]; State v. Turner, 345 So. 2d 767 (Fla. 4th DCA 1977) [taillight problem was sufficient to justify stop]; State v. Irvin, 483 So. 2d 461 (Fla. 5th DCA 1986) [speeding in presence of officers was sufficient to justify stop].

c.  Some examples pre-Whren & post-Kehoe that may still be helpful because, if the police conduct was proper under Kehoe it certainly would be proper under Whren or because the court found the stop unlawful for some other reason.   [Back]

(1) Members of a drug interdiction team were traveling on I-95. They became suspicious of a large car with tinted windows and followed it. The officers thought the car had a broken taillight and made a traffic stop, which ultimately led to the discovery of drugs. The defendant argued that the stop was pretextual. The District Court disagreed with the defendant. The Supreme Court reversed finding that the stop was based on a pretext and stating: (1) the officers were involved in a drug interdiction effort at the time of the stop; (2) their primary mode of operation was to stop traffic violators; (3) they had traveled next to the defendant's vehicle for several minutes and then passed him; (4) the sole basis for the stop was a crack in the innermost lens of the left taillight assembly; (5) the officer claimed that this violated §316.610, which allows an officer to stop a vehicle on reasonable cause that the vehicle is unsafe or is not equipped with equipment required by law or that the equipment is not in proper adjustment; (6) this provision must be read in conjunction with specific equipment requirements; (7) §316.221(1) requires that a vehicle have at least two tail lamps on the rear, which, when lighted as required by §316.217 shall emit a red light which can be seen from 1,000 feet; (8) the defendant's vehicle had the required lights and it was only the reflector that was cracked; (9) the state argued that officers were authorized by the statute to stop a vehicle for any malfunctioning equipment even if it involved unrequired equipment; (10) such a rule would allow officers to make a stop for any equipment problem even if it had nothing to do with safety and the Court will not sanction such a procedure. Doctor v. State, 596 So. 2d 442 (Fla. l992).

(2) It was proper for the trial court to conclude that a stop was lawful where (1) the officer testified that he saw the vehicle weaving within its lane and slowing to 45 m.p.h. and then accelerating to 55 m.p.h. several times; (2) the officer testified that he had observed similar conduct many times in the past and was aware that such behavior often indicated sleepy or alcohol-impaired drivers and he had stopped vehicles under similar circumstances dozens of times. While there was ample evidence to indicate that the officer had pretextual motives for the stop, there was sufficient evidence to support the trial judge's decision that "a reasonable officer would have stopped the vehicle absent an additional invalid reason." Brown v. State, 595 So. 2d 270 (Fla. 2d DCA 1992).

(3) §316.217 provides that every vehicle operated upon highways within this state shall display lighted lamps and illuminating devices from sunset to sunrise and at certain other times. The court held that as a matter of law, with or without any suspicions as to any other criminal activity, a reasonable officer would stop a vehicle moving on the highway at night without lighted headlights, for the purpose of reminding, warning, or citing the driver. After the stop the officer has a legal right and duty to seize contraband in the vehicle in plain view of the officer from outside of the vehicle. DeGroat v. State, 583 So. 2d 1105 (Fla. 5th DCA 1991).

(4) Where an officer observed that the right taillight lens was missing and the vehicle was traveling at less than the posted speed limit a stop of the vehicle was not pretextual in that §316.221 requires that a motor vehicle have two taillights emitting a red light and the vehicle was in violation of this procedure and the officer testified that he had made stops for the same violation on "hundreds of prior occasions." Joseph v. State, 588 So. 2d 1014 (Fla. 2d DCA 1991).

(5) After Kehoe v. State a court held that a stop for a tag light problem was not a pretextual stop because the officers "would have" stopped him for the problem regardless of any other motive. State v. Fernandez, 526 So. 2d 192 (Fla. 3d DCA), app. dismissed, 531 So.2d 1352 (Fla. 1989). See also State v. Miller, 565 So. 2d 886 (Fla. 2d DCA 1990); Lemon v. State, 580 So. 2d 292 (Fla. 2d DCA 1991).

(6) Two officers stopped the defendant's vehicle and drugs were discovered. The trial judge denied a motion to suppress. On appeal the Court held that the evidence was sufficient for the trial court to find that " 'a reasonable officer would have stopped the vehicle absent an additional invalid purpose;' " therefore, the stop was not a pretext. In this case the evidence was that: (1) the defendant's vehicle was clocked at 62 m.p.h. in a 55 m.p.h. zone; (2) the vehicle was weaving on the road; (3) at one point the vehicle crossed the outer edge of the road; (4) prior to the discovery of drugs in the vehicle one of the two officers involved in the case was writing out a warning ticket for the weaving and was planning to warn the defendant about the speeding; (5) each officer testified he would have stopped any driver under these circumstances. Moreland v. State, 552 So. 2d 937 (Fla. 2d DCA 1989), rev. denied, 562 So.2d 346 (Fla. 1990).

(7) Officers saw the defendant lawfully driving his car, in the middle of the day, in an area that has a reputation for high crime activity. The rear window of the vehicle was completely knocked out. Both officers stated that the broken rear window was the basis for the stop. As a result of the stop contraband was discovered in the defendant's change purse. The trial judge denied a motion to suppress. On appeal the court reversed because: (1) neither officer knew whether driving a car with a broken rear window was illegal; (2) in fact, the defendant had committed no violation because the Florida Statutes deal only with tinted windows, but none of them require that there even be a rear window; (3) "[t]he police are not permitted to compensate for lack of founded suspicion that a crime has been or is being committed by justifying a stop on an obscure traffic violation or malfunctioning equipment. Doctor v. State, 596 So.2d 442 (Fla.1992)." "Because the officers had observed no violation of the law, and because no reasonable police officer would have stopped the defendant based merely upon the condition of the rear window" the motion to suppress should have been granted. The court relied on Daniel v. State, 647 So. 2d 220 (Fla. 1st DCA 1994) Jackson v. State, 660 So. 2d 312 (Fla. 2d DCA 1995).

(8) An officer saw a car at night across an intersection from him with its high beam lights on. The officer turned around and stopped the car. The officer informed the driver that he had been stopped for the high beam violation, a civil infraction under § 316.238(1). Further activity resulted in a search and the discovery of evidence. On appeal the court stated: "[W]e agree with the trial court's finding that the stop was not pretextual under the analysis provided by the supreme court in State v. Daniel, 665 So. 2d 1040 (Fla. 1995) (citing United States v. Bates), 840 So. 2d 858, 860 (11th Cir. 1988), for the principle that an officer charged with enforcing traffic law is entitled to a presumption that the 'officer would obey this mandate')" Robinson v. State, 667 So. 2d 384 (Fla. 1st DCA 1995).

(9) Making a right hand turn without signaling is a violation of §316.155. Consistent with [State v. Daniel, 665 So.2d 1040 (Fla. 1995)], officers had the right to initiate a traffic stop. Thus, the stop was not pretextual. The officer then had the right to check the defendant's identification. That resulted in the discovery of an active warrant. The defendant was arrested on that warrant. A search was done incidental to the arrest. This procedure was proper. State v. Everett, 671 So. 2d 161 (Fla. 2d DCA 1996).

(10) The officer stopped the defendant and had him exit his vehicle based on these observations: (1) at almost 7:00 a.m. the officer observed the defendant's vehicle stopped in the middle of three lanes of traffic; (2) it appeared that the vehicle had engine trouble and the defendant was trying to start it; (3) the defendant's eyes were bloodshot and he had a flushed face, which caused him to appear intoxicated; (4) the defendant appeared nervous; (5) as the officer approached, the defendant threw an object in the back seat of the vehicle. The officer ordered the defendant to exit the vehicle and made certain observations which lead to the defendant's arrest. The defendant argued that this was a pretextual stop because the real reason that the officer had the defendant exit the vehicle was because he wanted to search the object the defendant threw in the back of the vehicle. On appeal the court found, pursuant to State v. Daniel, 665 So.2d 1040 (Fla. 1995), that this was not a pretextual stop. Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996).

(11) An officer stopped the defendant's vehicle for obstructing traffic on a four-lane street. Prior to the stop the defendant was talking to a known prostitute. There was no traffic behind the defendant, but there was traffic in the lane next to the defendant which would have required the officer to wait a few seconds before pulling around the defendant. Under the involved statute the defendant could not have been convicted. The officer did an investigation and arrested the defendant for DUI. The officer said he would have stopped the defendant even if he had not been talking to the prostitute, but he also said that he had never issued a citation for this infraction. The court concluded that this was a pretextual stop and the state failed to meet the burden of showing that the officer would have stopped the defendant "solely for obstructing traffic." All of the evidence was suppressed. State v. Carlisle, 44 Fla. Supp.2d 145 (Fla. St. Lucie Cty 1990).

(12) An officer stopped the defendant because the defendant's car "windshield had a large crack and a windshield wiper stuck directly across the driver's view." The officer said he intended to give the defendant a warning. The defendant was unable to produce a license. The officer arrested him on that charge, but never gave him a citation for the windshield matter. The officer said this was standard procedure. Drugs were discovered in a patdown. The officer had a right to stop the vehicle. "Section 316.610(1), Florida Statutes (1991), states: ‘Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.’ Section 316.2952(4), Florida Statutes (1991), states: ‘Every windshield wiper upon a motor vehicle shall be maintained in good working order.’ Thus, there is no question that legal authority for the stop existed pursuant to a valid traffic safety statute, and that a traffic stop of this type fell within the usual duties of officers in Deal's department." There is a presumption that the officer would carry out this duty. "In sum, once the State has established that the traffic stop was legally authorized and that it fell within the usual duties assigned to similar officers, then any legitimate doubt whether the State has met its burden should be resolved in favor of the State." State v. Daniel, 665 So. 2d 1040 (Fla. 1995), overruled by, Holland v. State, 696 So. 2d 757 (Fla. 1997).

(13) The defendant was riding his bike with no headlight in violation of an ordinance. The officer had previously stopped many people for this infraction, but usually gave only a verbal warning. He did so in this case, but after giving the warning he asked the defendant whether he had any guns, knives, or weapons on him. This was the officer's usual procedure. The defendant responded by touching his back pocket, looking down and not at the officer, and saying "no". The defendant's body language and increased nervousness caused the officer to conclude that the defendant was lying. The officer then walked behind the defendant and noticed a bulge in his right rear pocket. It appeared to be a weapon. The officer touched the pocket and confirmed that it was a gun. The officer then arrested the defendant, searched him and discovered marijuana. The trial judge suppressed the evidence. On appeal the court reversed. The court found that this was a valid nonpretextual stop for the headlight violation. It was proper for the officer to ask about weapons out of concern for his own safety. Even if the stop were over it was still a valid action based on a citizen encounter. The defendant's actions in response to the question gave the officer a founded suspicion that the defendant was concealing a weapon. Thus, it was proper for the officer to investigate further by walking around the defendant. The bulge was in plain view. At this point the officer had probable cause to search the defendant "by feeling and searching his pocket to confirm that it was a gun." State v. Vera, 666 So. 2d 576 (Fla. 2d DCA 1996).

J.  Did the seizure result from a valid inventory of the vehicle? Colorado v. Bertine, 479 U.S. 367 (1987), 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Robinson v. State, 537 So. 2d 95 (Fla. 1989); Caplan v. State, 531 So. 2d 88 (Fla.1938); Rodriguez v. State, 702 So. 2d 259 (Fla. 3d DCA 1997); Green v. State, 550 So. 2d 535 (Fla. 1st DCA 1989); Stone v. State, 540 So. 2d 261 (Fla. 5th DCA 1989).  [Back]

1.  "An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)." Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

2.  "An inventory search is a Fourth Amendment search and seizure. Elson v. State , 337 So.2d 959 (Fla. 1976), but is unique in that its purposes are for the protection of property and persons rather than to investigate criminal activity. Miller v. State, 403 So.2d 1307 (Fla. 1981). Contraband or evidence seized on a valid inventory search is admissible because the procedure is a recognized exception to the warrant requirement. Caplan v. State, 531 So.2d 88 (Fla. 1988)." In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court held that the probable cause standard and the warrant requirement are not relevant to an inventory search analysis. "The test is solely one of 'reasonableness.' The reasonableness of a purported inventory search is dependent upon it being a true good-faith inventory search and not a subterfuge for a criminal, investigatory search. If the search is not, in fact, an inventory search, then it must be justified on some other basis. Fields v. State, 369 So.2d 603 (Fla. 1st DCA 1978)." Here the investigator testified that he itemized the contents of the tote bag and catalogued the serial numbers on the red-stained money recovered from the campsite and that this was a routine inventory The Court found that this was a valid inventory search. Rolling v. State, 695 So. 2d 278 (Fla. 1997).

3.  These standards apply:

a.  It is proper for an officer to exercise his discretion in deciding whether or not to impound a vehicle and do an inventory search as long as that discretion is exercised according to standard criteria. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987).

(1) There is no requirement that the policy be written, only that it be standardized. Key v. State, 589 So. 2d 348 (Fla. 1st DCA 1991); State v. Reeves, 587 So. 2d 649 (Fla. 5th DCA 1991).

(2) Officers arrested the defendant just after he had parked his car on a public street. The car was lawfully parked in front of a house where he had slept the night before with the permission of the owner because he was working on the house. The car windows were down, the doors were unlocked and the keys were in the ignition switch. The defendant was arrested for a non-bondable offense. The officer impounded the vehicle and did an inventory search, which disclosed evidence. The trial judge wrote a detailed order denying a motion to suppress. On appeal the court affirmed. There were two questions in the case: (1) Was the impoundment lawful? (2) Was the subsequent inventory search of the vehicle and envelopes contained in it lawful? The court answered both questioned affirmatively. "Courts have upheld the reasonableness of decisions by law enforcement officers to impound vehicles in cases where leaving the vehicle would present an inviting target for thieves or vandals." There was such a risk in this case even though the car was lawfully parked. Pursuant to Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), it is permissible for officers to exercise discretion in deciding whether to impound a vehicle if it "'is exercised according to standard criteria and on the basis of something other than suspicion of criminal activity.'" In this case a provision of the county code authorized impoundment of a vehicle if the driver is arrested and the vehicle would be left unattended on the road. The court found that this constituted standardized criteria. Thus, the court found the impoundment lawful. In regard to the inventory the court said that Bertine "requires that the search be undertaken in good faith and conducted according to standardized criteria. An inventory search serves the needs of protection of the owner's property, protection of police against claims of lost or stolen property, and protection of police against potential danger from such things as explosives." In this case "[s]worn testimony and Standard Operating Procedure 4-12, included in the record, further indicate that standard procedures exist to govern the inventory search of an impounded vehicle." There was no showing of bad faith or that the search was just done for the purpose of investigation. Rodriguez v. State, 702 So. 2d 259 (Fla. 3d DCA 1997).

(3) Some courts ruled that the standard policy had to be to open all containers. Diaz v. State, 555 So. 2d 1306 (Fla. 4th DCA 1990); Roberson v. State, 566 So. 2d 561 (Fla. 1st DCA 1990). These decisions were based on the decision in State v. Wells, 539 So. 2d 464 (Fla. 1989). That decision was reviewed by the U.S. Supreme Court. The Court disagreed with the Florida Supreme Court's holding that in order for an officer to open any containers found during an inventory search the involved law enforcement agency must have a policy that all containers always be opened during such searches. The Court stated that, "while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors." Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).

(4) "Although the officers may have had good reasons to impound the vehicle, there is no evidence demonstrating that they adhered to standardized procedures when they impounded the vehicle and conducted the search. Admittedly, when police take custody of a vehicle, they may conduct a ‘reasonable’ inventory search of that vehicle, as an exception to the warrant requirement of the Fourth Amendment. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). However, such an impoundment and inventory search must be conducted according to standardized criteria. See id. at 374 n. 6, 107 S.Ct. 738. The Florida Supreme Court recognized that these standardized procedures, which limit police discretion in determining the scope of the inventory search, ensure that the police will not abuse this exception to the warrant requirement. See State v. Wells, 539 So.2d 464, 469 (Fla.1989). Consequently, a trial court must find that police conducted their inventory search according to standardized criteria before declaring that search valid." Patty v. State, 768 So. 2d 1126 (Fla. 2d DCA 2000).

b.  The search must be done in good faith, that is, based on something other than a suspicion that evidence of crime will be discovered. Rodriguez v. State, 702 So. 2d 259 (Fla. 3d DCA 1997); Key v. State, 589 So. 2d 348 (Fla. 1st DCA 1991).

c.  The defendant need not be advised of any alternatives to impoundment. Roberson v. State, 566 So. 2d 561 (Fla. 1st DCA 1990).

K.  Was the duration and nature of the detention proper?  [Back]

1.  "A traffic stop may last no longer that the time it takes to write the traffic citation" to justify a detention beyond that period "an officer must have a reasonable suspicion based on articulable facts that criminal activity may be a foot.'" Where there was such suspicion a 45 minute delay for use of a narcotics dog was not unreasonable. Cresswell v. State, 564 So. 2d 480 (Fla. 1990). See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001); Summerall v. State, 777 So. 2d 1060 (Fla. 2d DCA 2001).

2.  A trooper stopped the defendant for speeding. Within three minutes of the stop, a second trooper arrived with a narcotics dog. The dog alerted on the vehicle. A search of the vehicle revealed cocaine. The trial judge suppressed the evidence. On appeal the Court reversed because: (l) the use of a dog does not constitute a search or seizure, United States v. Place, 462 U.S. 696 (1983)i (2) the traffic stop was proper; (3) the three minutes between the initial stop and the point at which the dog began his work was, if at all, a minimal intrusion on defendant's liberty and did not violate the Fourth Amendment; (4) the requirement that the dog begin its work in the time that it took to write the citation was met. State v. Williams, 565 So. 2d 714 (Fla. 3d DCA 1990).

3.  An officer stopped the defendant because his vehicle was making a noise. The officer determined that there was no problem and his documents were in order. He told the defendant he was free to go. As the defendant was returning to the car the officer asked for permission to conduct a search of the car. The officer stated that if the defendant refused, a drug sniffing dog would be used. On appeal the Court held that the continued detention was illegal. Dunbar v. State, 592 So. 2d 1230 (Fla. 2d DCA 1992).

4.  An officer lawfully stopped a vehicle for a traffic infraction. While the officer was checking the license and registration the defendant, a passenger, exited the car. As he did so he tied his sweat pants which he wore over shorts. The officer thought the defendant might be trying to conceal something. He said he was concerned for his safety and called for a canine unit because he suspected drugs might be present. The driver would not consent to a search and the canine unit did not arrive until 45 minutes after the initial stop. At that point the officer took his flashlight and shined it into the car, where he saw a gun. A search of the interior revealed a shotgun and other evidence. The trial judge denied a motion to suppress. On appeal the Court reversed because the length of detention for a traffic stop should be no longer than what is required to write the citation unless reasonable suspicion developments. The fact that there was a furtive movement by the passenger did not establish reasonable suspicion. Blue v. State, 592 So. 2d 1263 (Fla. 2d DCA 1992).

5.  Where the defendant was stopped by an officer for a traffic violation and the officer did not have probable cause to believe the defendant was armed, it was unlawful for the officer to force an object from the defendant's mouth based on a bare suspicion that it might be drugs even though the stop took place in a high crime area and the defendant had admitted a month before that he was in the area to buy cocaine and the officer had experience in detecting drugs. The officer indicated that the defendant had something he was holding in his mouth, but it could have been a lifesaver or a mint as well as drugs. Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991).

6.  "Absent a well-founded suspicion of criminal activity, continued detention is illegal once a police officer accomplishes the purpose of a traffic stop.... Here, once [the officer] determined that the appellant was fit to drive, his continued detention and warrantless search were illegal." Bozeman v. State, 603 So. 2d 585 (Fla. 2d DCA 1992).

7.  An officer stopped the defendant because he was drinking a beer while driving. After the officer had checked the defendant out and issued the citation he continued to detain the defendant until his dog discovered cocaine. This took about five minutes. On appeal the Court held that once the officer issued the citation the continued detention was illegal in the absence of reasonable suspicion of criminal activity. In this case the only additional facts were: (1) the defendant had been driving aimlessly in a high crime area, and (2) the defendant behaved nervously after the stop. These facts did not justify continued detention. Sims v. State, 622 So. 2d 180 (Fla. 1st DCA 1993).

8.  An officer stopped a vehicle because he could not see a tag. The stop was lawful. He ascertained that the vehicle had a valid temporary tag. The officer retrieved his narcotics detection dog from his car and discovered drugs. It was unclear whether he got the dog before or after he determined that the vehicle had a temporary tag, although, he acknowledged that it may have been before. On appeal the court reversed the denial of a motion to suppress because the burden was on the state to show the validity of the warrantless seizure and it failed to meet that burden. The defendant should have been allowed to leave once the officer determined that the vehicle had a valid temporary tag. Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995).

9.  An officer stopped the defendant for DUI. The officer seized a gun he saw in the defendant's car. A check on the gun showed that it was registered to the defendant. Once the officer determined that the defendant was not intoxicated, he returned his license and told him he was free to go. The officer did not return the gun. The officer then asked the defendant if he could search the car. When the defendant refused, the officer told him that a K-9 unit could be brought to the scene to sniff for drugs. The defendant then walked to his car and began removing items from the back seat and placing them in a bag on the ground. One officer saw the defendant place a matchbox in the bag. When asked about the matchbox, the defendant denied that it existed. According to one officer the defendant consented to him retrieving the matchbox from a shoe in the bag and it contained cocaine. A motion to suppress was denied. On appeal the court reversed because the initial stop and investigatory seizure of the defendant's gun was illegal. "At no time was the encounter consensual in nature. Once the officers determined that [the defendant] was not intoxicated and that [the defendant's] possession of the firearm was not illegal, there was no longer any lawful reason not to let him go." The subsequent request to search the car and the threat to bring the dogs amounted to an illegal detention. Cooper v. State, 654 So. 2d 229 (Fla. 1st DCA 1995).

10.  When the driver of a vehicle commits a traffic infraction, he or she subjects himself or herself to the inconvenience of the stop and a drug dog sniff of the car so long as it is "conducted within the time required for the issuance of the citation." In this case when the officer ordered the parties out of the car, he ordered the passenger over her objection to leave her purse in the car during the drug dog sniff. If the officer was concerned about the contents of the purse for safety reasons as he claimed, he could have patted the purse down. Requiring the passenger "to leave it behind so that it would be exposed to a drug sniff is an impermissible seizure. If the officer cannot extend a lawful stop beyond the time it takes to write a citation in order to have the k-9 unit perform its task ... certainly he may not subject those who are not being 'detained' under any lawful authority to such a test." The court concluded that both the defendant and her property were seized. McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995).

11.  The defendant was properly stopped for speeding. The defendant produced his license. An officer checked it out and returned it to the defendant. The officer kept talking to the defendant and when the defendant said the car was not his, the officer asked to see the registration. While the defendant was looking for the registration, another officer saw a handgun sticking out from under the seat. The defendant was arrested for possession of a concealed firearm and a search of the car revealed narcotics. The defendant moved to suppress because the officer did not tell him he was free to go after his license was returned. Thus, the answers to the officer's questions were improperly secured. On appeal the court disagreed. "We believe the officer, after stopping Watson for the traffic infraction, could properly request to see the vehicle registration even after returning the driver's license and even without Watson's statement as to the ownership of the vehicle." Watson v. State, 689 So. 2d 1090 (Fla. 5th DCA 1997).

12.  The officer had a right to search the vehicle where the officer made a lawful traffic stop, because the officer saw the barrel of a revolver protruding from under the driver’s seat. Thus, he had probable cause to believe that the defendant had illegally concealed a firearm. Myers v. State, 546 So. 2d 754 (Fla. 3d DCA 1989). On the other hand, such a search was unauthorized where the gun was clearly visible. Patrick v. State, 603 So. 2d 640 (Fla. 2d DCA 1992).

13.  An officer may detain a defendant for sufficient time to issue citation. The officer may also check the tag. In this case, however, the officer asked many questions that had nothing to do with the traffic stop. That delay was improper. Maxwell v. State, 785 So. 2d 1277 (Fla. 5th DCA 2001).

14.  "The State asserts that even if the citation should have been completed before the canine unit arrived, the officer had a reasonable suspicion that illegal activity was afoot which justified the detention of Eldridge. Detentions of individuals may extend past the time required for writing a citation if the officer has a reasonable suspicion, based on articulable facts, that criminal activity was committed or was about to be committed.... In the instant case, the facts the State cites as evidence of criminal wrongdoing are Eldridge’s nervousness upon being stopped, his failure to provide a specific street address for his residence, and his possession of a large roll of $100 bills in his pocket. We conclude that this evidence does not establish reasonable suspicion on the part of the officer to detain Eldridge past the time reasonably necessary to issue a citation. The officer stopped Eldridge for a traffic infraction and did not testify that he had any suspicion that criminal activity was afoot. In fact, he testified that he ‘just felt like [Eldridge] was lying and he had something to hide.’ This is no more than a hunch." Eldridge v. State, 27 Fla. L. Weekly D1009, 2002 WL 851100, (Fla. 5th DCA May 03, 2002).

L.  Was the seizure the result of a roadblock?  [Back]

1.  Detention status. [Back]

a.  An officer can direct that the driver of a vehicle stopped in a roadblock exit the vehicle only if the officer has developed reasonable suspicion that the driver has committed or is committing a criminal or traffic violation. Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).

b.  It does not constitute a consensual encounter and the defendant is not free to ignore the officer’s directions or to refuse to answer questions. Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).

2.  Constitutional concerns.  [Back]

a.  Officers may not randomly stop people to check their driver licenses and registrations because the potential for abuse is too great. Delaware v. Prouse, 440 U.S. 548, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

b.  A seizure takes place as contemplated by the Fourth Amendment whenever a person's freedom of movement is terminated by an instrumentality put in place by law enforcement officers for the purpose of terminating said freedom of movement. It is a seizure even if the person stopped is not the one police intended to stop. Thus a seizure occurred where police put a roadblock across both lanes of a highway. Brower v. Inyo County, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed.2d 628 (1989).

c.  In judging the validity of the roadblock the court applied the three part balancing test set forth in Brown v. Texas. That test involves these three considerations: "(1) the gravity of the public concern that the seizure serves; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty." The court found that the state had "a vital interest in the health, safety and welfare of its citizens which justifies reasonable use of roadblocks to enforce motor vehicle safety law and to prevent traffic accidents. The public is best served by a regime that deters drivers from traveling in unsafe vehicles and identifies safety defects before the vehicles are involved in accidents." Campbell v. State, 667 So. 2d 279 (Fla. 1st DCA 1995), reversed on other grds, 679 So. 2d 1168 (Fla. 1996).

d.  In the leading U.S. Supreme Court decision on DUI roadblocks a state police agency established a sobriety checkpoint. These guidelines were established: (a) checkpoints would be set up at selected sites along state roads; (b) all vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication; (c) in cases where an officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the driver's license and registration and, if warranted, conduct further sobriety tests; (d) should the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made. The initial detention was without probable cause or reasonable suspicion. The evidence showed that on the involved occasion 126 vehicles were stopped and two drivers, or about 1.5%, were arrested for DUI. The Court held that this procedure comported with Fourth Amendment requirements based on the three part balancing test established in Brown v. Texas, 443 U.S. 47 (1979). First, the interest of the state in preventing accidents caused by drunk driving must be considered. The Court recognized that the state has a great interest in accomplishing this purpose. Second, the level of intrusion on the individual's privacy interest caused by the stop must be balanced against the state's interest. The Court held that the level of intrusion is slight, since each stop averages about 25 seconds and the stops are pursuant to guidelines and involve every vehicle, so that the stop is not arbitrary. Third, the effectiveness of the checkpoints in achieving the state's goal must be considered. On this point the Court held that the decision in Delaware v. Prouse, 440 U.S. 648 (1979), which disapproved random stops by officers in an effort to catch unlicenced drivers and unsafe vehicles, involved a case where there was "no empirical evidence" indicating that such stops were effective in promoting highway safety. In contrast, the Court noted that the evidence here indicated that sobriety checkpoints commonly resulted in an arrest of 1% of the driver's for DUI. The Court thus indicated that there was some evidence that the procedure was effective in accomplishing the goal and it was for the "politically accountable officials," and not the courts, to decide how this law enforcement technique should be used along with other techniques. "In sum, the balance of the state's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment." Michigan Department of State v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).

e.  A trial court has noted that the Jones and Sitz decisions are easy to reconcile in that Jones simply provides more detail in evaluating the standards established in Sitz. The one exception is that Sitz eliminates any need to evaluate the effectiveness of the roadblock. State v. Cahill, 16 Fla. L. Weekly C41 (Fla. l9th Cir. Ct. March 5, 1991), affirmed, 595 So. 2d 258 (Fla. 4th DCA), rev. denied, 601 So. 2d 551 (Fla. 1992).

f.  In Cahill the trial court concluded that the Court in Sitz established a requirement that courts consider two factors: (1) "the 'objective intrusion', measured by the duration of the stop and intensity of the investigation, and (2) the 'subjective intrusion', measured by the degree of discretion that the officers on the scene are able to exercise, and the potential for fear and surprise of the motorists." The first test was met where less than five minutes passed between the time the defendant was initially stopped in line until the time that the officer observed sufficient facts to establish reasonable suspicion. The second test was met where there was a prior plan issued by supervisors, the site was chosen by supervisors based on reasonable and specific traffic data, the guidelines were very specific and eliminated the discretion of the officers regarding procedure and which vehicles to stop in that all were stopped and there was sufficient lighting and warning to motorists.

g.  A roadblock was set up in an area where most of the people who passed through it were residents of the area. The defendant was stopped as a result of the roadblock. On appeal the court found that the impact on the liberty of the citizens living there was severe and interference in this setting with individual liberty outweighs the state interest in dealing with drugs, particularly in view of the fact that a seizure such as occurred in this case advances that interest only slightly. It is doubtful that this decision would be the same if considered in light of the decision in Sitz. State v. Landfald, 571 So. 2d 10 (Fla. 2d DCA 1990).

3.  In a landmark case the Florida Supreme Court established standards for the use of roadblocks. State v. Jones, 483 So. 2d 433 (Fla. 1986). See also, Cardwell v. State, 482 So. 2d 512 (Fla. 1st DCA 1986).  [Back]

a.  The roadblock must be established and operated according to detailed guidelines regarding the selection of vehicles, detention techniques, assignments and the disposition of vehicles so that little discretion is left to the officers conducting the roadblock.

(1) The decision in Campbell v. State, 667 So. 2d 279 (Fla. 1st DCA 1995) was reversed. "'Because DUI roadblocks involve seizures made without any articulable suspicion of illegal activity, most states examining this issue have ruled that such roadblocks stand or fall based on some set of neutral criteria governing the officers in the field. Courts requiring such a neutral plan do so out of a fear that unbridled discretion in the field invites abuse. We agree and find that it is essential that a written set of uniform guidelines be issued before a roadblock can be utilized.' [quoting Jones at 438]." The Court confirmed that the decision in State v. Jones, 483 So. 2d 433 (Fla. 1986) is still viable. In this case the written guidelines were defective because they did not specify the "'vehicle selection procedures, duty assignment, detention techniques, and procedures for the disposition of vehicles.'" "The requirement of written guidelines is not merely a formality. Rather, it is the method this Court and others have chosen to ensure that the police do not act with unbridled discretion in exercising the power to stop and restrain citizens who have manifested no conduct that would otherwise justify an intrusion on a citizen's liberty. In this country the police are not vested with the general authority to set up 'routine' roadblocks at any time or place. Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter." Campbell v. State, 679 So. 2d 1168 (Fla. 1996).

(2) In two lower court cases the absence of written guidelines was ruled fatal to the validity of the detention. Cutts v. State, 24 Fla. Supp.2d 130 (Fla. 4th Cir. Ct. 1987); State v. Baxter, 19 Fla. Supp.2d 137 (Fla. Polk Cty. Ct. 1986).

(3) The defendant was stopped at a roadblock and sought suppression based on the failure of the state to introduce into evidence a written set of uniform guidelines for operating the roadblock. The trial judge denied the motion based on the finding that the deputies' testimony about their standard operating procedure was the functional equivalent of written guidelines. On appeal the court reversed because the absence of specific written guidelines renders the roadblock fatally defective under State v. Jones, which requires that a written set of uniform guidelines be issued before a roadblock can be utilized. They "should cover in detail the procedures which field officers are to follow at the roadblock. Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles." This is to minimize the intrusion and prevent arbitrary police action. Even if the set of guidelines do not cover each of the listed matters they need not necessarily fail because they should be considered as a whole when determining the plan's sufficiency. Hartsfield v. State, 629 So. 2d 1020 (Fla. 4th DCA 1993).

(4) In another case, the court followed the principle that the plan should be considered as a whole and evaluated based on whether it adequately limits police discretion. There the defendant did not stop for the roadblock as directed by one officer, but another officer stopped him. That contact led to the development of sufficient grounds for requiring the defendant to exit his vehicle and ultimately to his arrest for carrying a concealed firearm and DUI. The defendant argued that the written roadblock guidelines gave no instructions as to how a person who rolled through the roadblock was to be treated and therefore the stop was unlawful. The court ruled that this was not a fatal flaw. The guidelines were sufficient to limit police discretion. The court concluded that motorists are neither expected nor privileged to ignore a roadblock. In the alternative, the court ruled that the defendant had a legal obligation to stop and his failure to do so might constitute obstructing and opposing. Rinaldo v. State, 787 So.2d 208 (Fla. 4th DCA 2001).

(5) "Earnest Jones was driving his truck when he was stopped by City of West Palm Beach traffic officers during a ‘vehicle safety inspection.’ During the stop, a participating narcotics officer noticed marijuana seeds in the rear of the truck. Jones was convicted of possession of cocaine and marijuana. On appeal, he challenges the trial court’s denial of his motion to suppress the contraband." Narcotics officers were involved in the roadblock for the purpose of looking for narcotics.... "Campbell and Jones require a comprehensive, written set of guidelines be in place prior to a roadblock ‘to ensure that the police do not act with unbridled discretion in exercising the power to stop and restrain citizens who have manifested no conduct that would otherwise justify an intrusion on a citizen's liberty.’ Campbell, 679 So.2d at 1172. ‘Written guidelines should cover in detail the procedures which field officers are to follow at the roadblock. Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles. Of course, if the guidelines fail to cover each of these matters they need not necessarily fail. Rather, courts should view each set of guidelines as a whole when determining the plan's sufficiency.’ Jones, 483 So.2d at 438 (citations omitted). The written guidelines here fall far short of those recently found sufficient in Rinaldo v. State, 787 So.2d 208 (Fla. 4th DCA 2001).... Although the guidelines addressed the important issue of which vehicles would initially be stopped (all), they did not address which cars would be checked for narcotics or the procedures to be used. The pre-roadblock, oral briefing made it clear that the detection of illegal drugs was to be an integral part of this roadblock. The written guidelines, however, neither mentioned nor addressed the presence or duties of the narcotics officers. The failure of the written guidelines to address this aspect of the inspection left the crucial decisions of which drivers would be questioned about drugs and how they would be questioned solely to the discretion of the officers on the scene. The testimony was undisputed that not all drivers were asked about narcotics because of the limited availability of officers. Although the officers and agents were briefed orally about the detention techniques, oral guidelines are not sufficient. See Hartsfield v. State, 629 So.2d 1020, 1021 (Fla. 4th DCA 1993). In addition, a general operating procedure contained in a standard operational order cannot be substituted for the detailed, written guidelines for a particular roadblock. See Campbell, 679 So.2d at 1171-72. In the instant case, when viewed as a whole, the written guidelines were insufficient and failed to set forth with reasonable specificity the procedures to be employed at the inspection." Jones v. State, 800 So. 2d 351 (Fla. 4th DCA 2001).

(6) The failure to follow the guidelines with each motorist and the extension of special treatment to a certain person because of their status in the community results in a denial of equal protection and invalidates the roadblock procedure. State v. Freeman, 2 Fla. L. Weekly Supp. 39 (Fla. Palm Beach Cty. Ct. Sept. 27, 1993).

(7 Written operational plan together with detailed briefing by operational coordinator was sufficient to provide neutral criteria limiting the conduct of individual officers. State v. Walker, 2 Fla. L. Weekly Supp. 267 (Fla. St. Johns Cty Ct. April 26, 1994).

b.  The safety of motorists must be assured by providing adequate lighting, warning signals and officers who are easily identified as law enforcement personnel.

c.  The degree of intrusion and length of detention must be minimized.

d.  The roadblock procedure must be significantly more effective in combating a crime problem of very serious proportions than other available less intrusive means.

4.  Roadblocks for nontraffic enforcement purposes.  [Back]

a.  If the roadblock is not for maintaining a sobriety check point the rules are different. In one case officers set up a roadblock because of a shooting. They wanted to secure the crime scene and to detain any suspects matching the description of the shooter. The defendant was caught in that roadblock for reasons unconnected with the shooting and arrested for DUI. He sought suppression of the evidence on the grounds that the roadblock did not comply with Jones and Campbell. On appeal the court held that those procedures did not apply to this type of roadblock. Rather the procedure should be tested based on the balancing test established in Brown v. Texas, 443 U.S. 47 (1979). Harbaugh v. State, 711 So. 2d 77 (Fla 4th DCA 1998).

b.  "Although there was no individualized 'founded suspicion' of [the defendant's] guilt so as to justify a Terry stop, the practice employed here of stopping all persons in the immediate vicinity of a known crime was a reasonable law enforcement activity which is not barred by the Fourth Amendment." The offenders had gone into a public housing area and officers stopped everyone leaving the area. In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Court distinguished between random stops by police and stops to apprehend the perpetrator of a recently committed crime. Scott v. State, 629 So. 2d 238 (Fla. 3d DCA 1993).

c.  The defendant appealed from the denial of a motion to suppress because the evidence was discovered as a result of a motor vehicle stop in an unlawful roadblock. The Court reversed based on City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed.2d 333 (2000) . "Generally, a search or seizure violates the Fourth Amendment as unreasonable when law enforcement lacks an ‘individualized suspicion of wrongdoing.’ Id. at 37, 121 S.Ct. at 451. A program involving suspicionless searches or seizures will be upheld only in limited circumstances to fulfill special law enforcement needs. Id. The Supreme Court in Edmond held that an Indianapolis checkpoint program violated the Fourth Amendment because the primary purpose of the program was to interdict narcotics, a purpose ‘ultimately indistinguishable from the general interest in crime control.’ Id. at 48, 121 S.Ct. at 458. The Edmond Court acknowledged that it had suggested in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that driver’s license and registration checkpoints for the purpose of roadway safety would be constitutional. The Court explained that it must ‘examine the available evidence to determine the primary purpose of the checkpoint program.’ Edmond, 531 U.S. at 46, 121 S.Ct. at 457. The Supreme Court stressed that ‘the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.’ Id. Based on Edmond, if the checkpoint program here had a primary purpose of interdicting drugs or other general criminal wrongdoing, then the checkpoint was unconstitutional." An officer testified that the primary purpose was to target people without licenses and not to target illegal drug activity. The court rejected this testimony because the plan for the program clearly indicated that the primary purpose was to interdict drugs. Davis v. State, 788 So. 2d 1064 (Fla. 2d DCA 2001).