STATE v. GARCIA

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District Court of Appeal of Florida,Fifth District.

STATE of Florida, Appellant, v. Rogelio Lazaro GARCIA, Appellee.

No. 96–938.

Decided: July 25, 1997

Robert A. Butterworth, Attorney General, Tallahassee, and E. Paul Stanley, Assistant Attorney General, Daytona Beach, for Appellant. No Appearance for Appellee.

The state appeals the trial court's order suppressing contraband evidence.   We affirm the order because the record evidence supports the trial court's conclusion that the contraband was seized incident to an illegal traffic stop.

In the early morning hours of August 24, 1995, the defendant, Rogelio Lazaro Garcia, was driving a 1993 Nissan north on the Florida Turnpike.   At approximately 4:00 a.m., a highway patrolman stopped the Nissan for a traffic infraction.   Through a series of questions directed to the defendant and the defendant's passenger, as well as a computer check on the defendant, the patrolman determined that the defendant was driving with a suspended license.   The passenger, who owned the Nissan, gave the patrolman permission to search the car.   The search revealed controlled substances in the defendant's luggage.   Later, at the police station, cocaine was found in the defendant's pants pocket.

The defendant was subsequently charged with trafficking in cocaine and possession of the controlled substance flunitrazepam.   Prior to trial, the defendant moved to suppress the contraband evidence, arguing that it was obtained as a result of an unlawful traffic stop.   At the hearing on the motion to suppress, the patrolman testified that he stopped the defendant because he could not read the expiration date on the temporary tag displayed “high up” in the rear window of the Nissan.1  The patrolman explained that the stop occurred on a dark and rainy night.

The evidence presented at the hearing on the motion to suppress consisted of the testimony of the officer and a photograph of the rear window of the Nissan showing the temporary tag.   After considering the evidence, the trial court determined “that the defendant did not commit a traffic violation, nor was there probable cause for the traffic stop.”   Accordingly, the trial court granted the defendant's motion to suppress.

The state appeals this ruling, arguing that the evidence does not support the trial court's findings of fact, and the trial court applied the wrong legal standard.   Specifically, the state contends that the trial court was required to accept the patrolman's testimony that he could not read the expiration date on the license plate because there was no substantial competent evidence controverting his version of the events.2  However, this argument simply ignores the fact that the trial court necessarily found the patrolman's testimony to be not credible.   Instead, the trial court relied upon the photograph of the Nissan to support its findings of fact.   In this regard, the photograph reveals that the temporary tag was mostly in the lower one-half of the rear window on the driver's side, and the numbers indicating the expiration date were large, clear, and in sharp contrast to the background of the tag.   These numbers were written at the top of the tag and covered approximately one-half the width of the tag, making them significantly larger than the expiration date on stickers issued for placement on license plates.   As a result of the placement of the tag, the expiration date appeared at the approximate midpoint between the top and the bottom of the rear window.   Based upon this evidence, the trial court found that there was no probable cause of a traffic violation.3

In closing, we note that, contrary to the state's urging, it is essential that there be an objective standard in which to justify the stop of a motorist because, absent an objective standard, there would be no protection against unreasonable seizures.   See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979);  United States v. Martinez–Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).   A seizure of one's person by the police implicates the Fourth and Fourteenth Amendments because the Fourth Amendment protects against unreasonable seizures.   The reasonableness standard requires, at a minimum, that the facts upon which a seizure is based be capable of measurement against an objective standard.  Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396.   Without the reasonableness standard, officers would be authorized to stop vehicles at their unrestrained discretion.4

Accordingly, since the instant record supports the trial court's conclusion that the defendant had been subjected to an illegal stop, we affirm the suppression order.

AFFIRM.

I respectfully dissent.

I believe that State v. Bass, 609 So.2d 151 (Fla. 5th DCA 1992), controls this decision.   Like the defendant in Bass, Rogelio Lazaro Garcia was stopped when the arresting officer testified that the expiration date of Garcia's vehicle tag could not be seen as he approached from the rear.

Roy Swats, a Florida Highway Patrol officer for some 22 years, testified as follows:

A.  I was sitting on the east shoulder facing south observing northbound traffic when this vehicle went by.   As it went by, I looked in the rear view.   Things we look for are tags and I did not see a tag down in the bumper area where a normal tag would have been expected to be seen.   I pulled out at that time, U-turn, proceeded back on—I was facing south, went back on and came up alongside the vehicle and saw what appeared to be a paper tag in the left rear window high up.   I could not—

Q. Okay.   What was the weather like at this time?

A. It was raining.   It was dark, very dark, overhead street lights.

Q. Was this during any hurricane?

A. Hurricane Aaron had come ashore.

Q. And this was 4:00 o'clock in the morning?

A. 4:05.

Q. When you observed this paper tag, were you able to read what the tag said?

A. I could see the tag numbers.   I could not see the expiration.

Q. Is that what you routinely check for?

A. Yes, Ma‘am.

After the stop, the officer determined that the tag had not expired but he asked to see Garcia's driver's license in any event.   Stating that he had no driver's license, Garcia showed the officer a passport instead.   A passenger in the vehicle produced a registration for a temporary tag but it was not for the temporary tag affixed to the rear window.   The officer ran a check on Garcia through the computer and the information came back that his driver's license had been suspended.   Garcia was placed under arrest and a search of the vehicle turned up illegal narcotics.   Garcia moved to suppress the evidence on the basis of an illegal stop.   The trial court granted the motion.

The trial court, in distinguishing this case from Bass, stated:

Bass was stopped for a traffic check because the temporary tag was not sufficiently visible for the officer to determine whether it had expired.   The facts of this case are different.

In the instant case, the officer may not have seen the tag because of reduced visibility, but the tag was mounted in the rear window and was not obstructed or obscured.

The court then, relying on Taylor v. State, 644 So.2d 132 (Fla. 1st DCA 1994) (which holds that a defendant's tag was not improperly displayed when taped inside the rear window), held that since Garcia had not committed a violation, there was no “probable cause” for the traffic stop.   The court suppressed the drugs found in the vehicle.

In my view, Taylor does not support the trial court's decision.   In Taylor, the officer stopped Taylor because the temporary tag was displayed inside the rear window.   The First District held (based on regulations then in existence but since repealed) that it was proper to place a temporary tag inside the vehicle's rear window and that the stop for that reason was thus improper.

Section 316.605, Florida Statutes, in addition to requiring that the “license plate” be fastened “outside” the vehicle (a requirement that the trial court ruled was answered by Taylor ) also requires that the license be displayed so that it is “plainly visible ․ 100 feet from the rear ․” (a requirement not addressed by Taylor nor discussed by the trial court).   The validity of this rear visibility requirement was not challenged below nor on appeal.   Thus, while Taylor held, based on a then existing regulation, that the placement of the temporary tag in the rear window did not justify a stop, it did not hold, and does not stand for the proposition, that placing the tag in the rear window is a defense to the requirement that the license be visible from the rear.1  To ignore this rear visibility requirement would allow one to place his or her tag on top of the trunk facing upward, so long as it remained unobstructed and unobscured, even though it would be visible only when the officer walks up behind the vehicle.   The officer in our case did not stop Garcia because the tag was mounted in the rear window;  Garcia was stopped because in mounting the tag on the curved portion of the rear window, the expiration date of his tag was not visible as he drove up behind the vehicle.2  The officer, according to his unrefuted testimony, stopped the vehicle only because the placement of the tag “high up” in the rear window prevented him from being able to read the expiration date on the temporary tag from his trailing vehicle.   This might have been because of the distortion caused by the curvature of the rear window or because the high placement of the tag removed it from the range of illumination of the headlights of a trailing vehicle.3  Had the tag been mounted in a different location, even in the rear window, perhaps its expiration date would have been sufficiently visible even in the dark.   If one examines the photograph referred to by the majority, it is obvious that the photographer is looking down on the license tag at the approximate distance and location of an officer who approaches the vehicle on foot after making a stop.   The officer in our case testified that from this vantage he could also read the expiration date.   The photograph, taken in the bright sunshine, does not show whether it would be visible in the beam of following headlights.   And because the photograph was taken at the eye-level of one standing right behind the vehicle, it does not show the effect of the curvature of the window on the tag's visibility by one following in the rear.

Even though the trial court found that the temporary tag was not “obstructed or obscured,” this does not satisfy the required visibility standard.   The trial court did not find that the officer was not telling the truth about the visibility of the expiration date from his vantage point at the rear of the vehicle.   The judge accepted this testimony but held it irrelevant because the tag was lawfully mounted in the rear window and was neither obstructed nor obscured.   But the judge did not consider the effect of the curvature of the window or the fact that the placement of the tag might have put it out of the beam of the following headlights.   The issue before us is not whether one may place his or her tag in the rear window (although one might be curious as to how an agency regulation can supersede a specific statutory requirement, a question that apparently troubled the agency so much that it repealed its conflicting regulation), but rather whether one may place the tag in the rear window in such a manner that the expiration date is not visible from the rear by one sitting in a following vehicle less than 100 feet behind.   Even if the license tag had been mounted in the bumper area of the vehicle, if the tag had been slanted so that its expiration date could only be seen from the tops of adjoining buildings or could not be seen because of an inoperable tag light, the officer could properly stop the vehicle to determine the expiration date.   This was essentially the holding in Bass.

I find nothing in the record to support the majority's position that the trial court necessarily found that the officer's testimony was not credible.   We should not presume that the trial judge disbelieved the officer.   I agree with the State that it was simply because the trial court believed it to be legal to mount the tag in the back window so long as the tag is unobstructed and unobscured, that the trial court found that such stop was not justified.   There is no indication that the court considered the issue of rear visibility.   Even if the court did consider this issue, there is nothing in the record, including the photograph, that disputes the officer's testimony that he could not see the expiration date of Garcia's tag as he approached from the rear until after the stop and after he was in a position similar to that of the photographer's, which would support a finding that the officer was untruthful.

Once the vehicle was stopped, even though the officer was able to see that the expiration date of the license tag had not expired, there is nothing to prevent him from asking to see the operator's driver's license.4  When the driver responded that he had none, then the officer properly pursued the issue.   I would not apply the exclusionary rule to the facts of this case.

FOOTNOTES

1.   Section 316.605, Florida Statutes (1995), provides in pertinent part that license plates be displayed in such a manner that “all letters, numerals, printing, writing, and other identification marks upon the plates clear and distinct and free from defacement, mutilation, grease, and other obscuring matter so that they will be plainly visible and legible at all times from 100 feet from the rear or front.”

2.   See State v. Fernandez, 526 So.2d 192 (Fla. 3d DCA), cause dismissed, 531 So.2d 1352 (Fla.1988) (a court must accept evidence which is neither impeached, discredited, controverted, contradictory within itself, or physically impossible).

3.   Notably, State v. Bass, 609 So.2d 151 (Fla. 5th DCA 1992), the case cited by the dissent, is clearly distinguishable because, in Bass, the trial court made a specific finding that it believed the officer's testimony that he could not read the tag on the car driven by the defendant.

4.   In our view, section 316.605 does not set forth a reasonable standard to justify a traffic stop because a particular officer's inability to read a license tag or plate at a distance of 100 feet is hardly an objective standard.   This is so because, for example, in bad weather all motorists would be subject to a stop regardless of whether they have properly displayed their license plates and expiration stickers issued by the state since the weather could impede the visibility of the license plate.   Similarly, the myopic officer theoretically has more latitude in stopping vehicles than the officer with better vision.   Perhaps a more reasonable approach would be for the statute to require that letters and numbers on tags, plates, and expiration stickers be a particular size, and that motorists display them in a particular designated manner and ensure that they are not obstructed or obliterated.   However, such a change in the statute must, of course, be addressed by the legislature.

1.   In State v. Bentley, 596 So.2d 773 (Fla. 2d DCA 1992), the court upheld a stop when the license tag was placed in a tinted rear window.

2.   The court in United States v. Ferguson, 8 F.3d 385 (6th Cir., 1993), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994), held in upholding a stop when the license was not visible:  “It is irrelevant that the vehicle in fact had a drive-out tag lying on the back shelf of the car because the ordinance makes it an offense to drive without a ‘visible’ license plate, and the vehicle did not have a visible license plate.”

3.   It is because the license plate must be visible at night that a “tag light” is required.   We held in State v. Girard, 694 So.2d 131 (Fla. 5th DCA 1997), that an inoperable tag light will justify a traffic stop.   See also Indialantic Police Department v. Zimmerman, 677 So.2d 1307 (Fla. 5th DCA 1996) (missing tag light is a proper basis for the stop of a vehicle).

4.   In my view, if the expiration date was not visible as the officer approached within 100 feet of the vehicle, the stop could also be justified in order to issue a summons for a civil infraction pursuant to Section 316.655(1) and (2), Florida Statutes.

ANTOON, Judge.

PETERSON, J., concurs. HARRIS, J., dissents, with opinion.

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