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.
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Opinion filed March 22, 2001.Appeal From Order Granting Defendant’s 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
“Appellate 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.” 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 Sheriff’s 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 owner’s name, the deputy ran a check of the owner’s driver’s license, which came back with a suspension for Driving Under the Influence. Deputy Lopes then noticed that the defendant’s 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 defendant’s Motion to Suppress, Deputy Lopes testified that had the defendant’s description not matched the owner’s; 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s license tag.
As a result of the check, Deputy Lopes determined that the registered owner did not have a valid driver’s 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 defendant’s 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 “an officer’s investigatory detention of a vehicle’s driver is supported by a well founded suspicion of unlawful activity when the officer first determines that the vehicle’s registered owner does not possess a valid driver’s license. In the case at bar, the deputy had not only determined that the vehicle’s registered owner did not possess a valid driver’s 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 “the deputy had a founded suspicion, based on the facts and in light of his knowledge, to briefly stop the defendant.” 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 defendant’s driver’s 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 defendant’s identity.
When the defendant appealed the trial court’s ruling allowing his identity to be used, the issue was presented as, “[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?” The legality of the stop was never argued. In deciding the issue presented, the Court looked to two other cases, O’Neal 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 “When 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.” The Court’s opinion in Perkins neither discusses nor does it overrule Smith.
In this case, Deputy Lopes lawfully initiated an investigatory stop to determine the defendant’s identity. Perkins is therefore inapplicable, and accordingly we reverse the trial court’s decision. It is therefore,
ORDERED AND ADJUDGED that the trial court’s Order Granting Defendant’s 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.
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Copies furnished to:
The Honorable J. Thomas McGrady
Jennifer Schick, Esq.
Assistant State Attorney
Joy K. Goodyear, Esq.
Assistant Public Defender