NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
†OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,
Appellant,

vs.†††††††††††††††††† ††††††††††††††††††††††† ††††††††††† ††††††††††† Appeal No. CRC 00-12107 CFANO

KEVIN TROY BENZEL,
Appellee.

_________________________________/

Opinion filed March 22, 2001.

Appeal From Order Granting Defendantís Motion to Suppress Pinellas County Court

County Judge J. Thomas McGrady

Jennifer Schick, Esq.
Assistant State Attorney
Attorney for Appellant

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellee

ORDER AND OPINION

THIS MATTER is before the Court on the Stateís appeal from the trial courtís Order Granting Motion to Suppress.† After reviewing the briefs and record, this court reverses the trial courtís decision.

ďAppellate review of a motion to suppress involves questions of both law and fact and appellate court must make a de novo review of the trial court's application of the law to the facts.Ē† Rosenquist v. State, 2000 WL 966039 (Fla. 2d DCA 2000). In this de novo review, this Court defers to the factual findings of the trial judge, but will consider whether as a matter of law those facts amounted to a reasonable suspicion to stop the defendant.

On December 8, 1999, at approximately 9:00 a.m., Deputy Jonathan Lopes of the Pinellas County Sheriffís Office was on routine patrol driving north on U.S. 19 near Drew Street in Pinellas County, Florida.† Deputy Lopes initiated a random registration check of the license plate of the car in front of him, which the defendant was driving.† After determining the registered ownerís name, the deputy ran a check of the ownerís driverís license, which came back with a suspension for Driving Under the Influence. Deputy Lopes then noticed that the defendantís age, race and sex matched the description of the registered owner.† Based on this factual foundation of circumstances, and therefore, believing that the defendant owned the vehicle and was committing a crime, Deputy Lopes initiated a traffic stop, which revealed that the defendant was the registered owner and had a suspended license.† Deputy Lopes arrested the defendant for Driving While License Suspended.

At the hearing on defendantís Motion to Suppress, Deputy Lopes testified that had the defendantís description not matched the ownerís; different age, race or gender, he would not have made the traffic stop.†† The deputy also testified that there were no traffic infractions committed, and that the reason he stopped the defendant was because he suspected the defendant was the owner of the vehicle and had a suspended license.

Based on the testimony given and the law argued, the trial court denied defendantís motion.† Subsequently, the defense requested a rehearing based on State v. Perkins, 25 Fla. L. Weekly S321a (Fla. 2000), which the defense argued was applicable.† The trial court, after considering Perkins, and after hearing argument from both sides, granted defendantís Motion to Suppress.

On appeal, the State argues that the trial court erred in applying Perkins, because that case applies only when a stop is illegal.† The States contends that the stop in this case is legal because it was based on a reasonable suspicion that the defendant was committing a crime, and therefore, Perkins does not apply.† We agree.

There is no ban against a police officer following a motorist anywhere within his jurisdiction and running a check on the license tag; to do so is not a stop, is not seizure, and does not impermissibly intrude on any right of defendantís privacy.† State v. S.P., 580 So.2d 216 (Fla. 4th DCA 1991).† Accordingly, it was perfectly permissible for Deputy Lopes to run a check on the defendantís license tag.

As a result of the check, Deputy Lopes determined that the registered owner did not have a valid driverís license.† After determining that the defendant fit the general description of the owner, and therefore, reasonably believing the defendant was committing a crime, the deputy initiated an investigatory stop to determine the defendantís identity. A well-founded suspicion of criminal activity is necessary to justify an investigatory stop.† Berard v. State, 731 So.2d 768 (Fla. 2nd DCA 1999); White v. State, 737 So.2d 1117 (Fla. 2nd DCA 1999). Furthermore, in Smith v. State, 574 So.2d 300, 301 (Fla. 5th DCA 1991), which is directly on point with this case, the court held that ďan officerís investigatory detention of a vehicleís driver is supported by a well founded suspicion of unlawful activity when the officer first determines that the vehicleís registered owner does not possess a valid driverís license.† In the case at bar, the deputy had not only determined that the vehicleís registered owner did not possess a valid driverís license, the officer also identified that the driver fit the description of the owner, and testified that had the driver not fit the description he would not have initiated a stop.

Initially the trial court properly determined that ďthe deputy had a founded suspicion, based on the facts and in light of his knowledge, to briefly stop the defendant.Ē† The trial judge erred however at the rehearing when it misinterpreted Perkins, and applied it to the instant case.† In Perkins, one officer, with apparent previous knowledge of the defendant, radioed another officer to stop the defendant because the officer did not believe the defendant had a valid license.† There was neither a check of the license tag via computer, nor a check of the defendantís driverís license for suspensions.† One officer simply assumed that the defendant did not have a valid license, which was arbitrary and not based on fact.† The trial court found the stop unlawful, but denied the suppression of the defendantís identity.

When the defendant appealed the trial courtís ruling allowing his identity to be used, the issue was presented as, ď[w]here the identity of the driver is an essential issue that must be proven, is that identity subject to suppression if it is discovered as a result of an unlawful search and seizure?Ē† The legality of the stop was never argued.† In deciding the issue presented, the Court looked to two other cases, OíNeal v. State, 649 So.2d 311 (Fla. 3d DCA 1995) and Ware v. State, 679 So.2d 3 (Fla. 2d DCA 1996), and resultantly overruled those cases by holding that ďWhen an officer unlawfully stops a defendant solely to determine whether he or she is driving with a suspended license, that officer's post-stop observation of the defendant behind the wheel must be suppressed.Ē† The Courtís opinion in Perkins neither discusses nor does it overrule Smith.

In this case, Deputy Lopes lawfully initiated an investigatory stop to determine the defendantís identity.† Perkins is therefore inapplicable, and accordingly we reverse the trial courtís decision.† It is therefore,

ORDERED AND ADJUDGED that the trial courtís Order Granting Defendantís Motion to Suppress is reversed. This cause is remanded for further proceedings consistent with this opinion.

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 22nd day of March, 2001.††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††††

 

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge
††††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††††††††††††††

 

___________________________
NANCY MOATE LEY
Circuit Judge††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††††

 

___________________________
R. TIMOTHY PETERS
Circuit Judge

 

Copies furnished to:

The Honorable J. Thomas McGrady

Jennifer Schick, Esq.
Assistant State Attorney

Joy K. Goodyear, Esq.
Assistant Public Defender