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 00-17675 CFANO

CHARLES HARGROVE,

††††††††††† Appellee.

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Opinion filed May 25, 2001.

Appeal From Order On Motion to Suppress Pinellas County Court

County Judge William H. Overton

Robert McLaughlin, Esq.
Assistant State Attorney
Attorney for Appellant

Appellee is pro se and has not filed an Answer Brief

ORDER AND OPINION

††††††††††† THIS MATTER is before the Court on the Stateís appeal from the trial courtís Order granting defendantís Motion to Suppress Tangible Evidence and Statements.† After reviewing the briefs and record, this Court affirms the trial courtís decision.

ďAppellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court's application of the law to the facts.Ē †Rosenquist v. State, 769 So.2d 1051, 1052 (Fla. 2d DCA 2000).† Furthermore, ďa ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.Ē† Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).

On March 25, 2000, Officer Brian Unmisig of the Pinellas Park Police Department was on street patrol driving eastbound on Park Blvd.† The officer focused his attention on a van, which was also driving eastbound on Park Blvd.† Officer Unmisig input the number of the vanís license tag, which was affixed to the proper permanent tag location on the van, into his mobile data terminal.† The result was that there was no record of the tag.† Based on that information, the officer initiated a traffic stop.

After stopping the van, Officer Unmisig walked to the vanís driverís side and made contact with the defendant, who was driving the vehicle.† The defendant and his passengers informed the officer that there was a temporary tag in the vanís back window.† The officer walked to the rear of the van and found a temporary tag in the left rear window.† The officer also found that there was an aluminum ladder attached to the rear of the van, which crossed over the left rear window.† Prior to being alerted to the existence of the temporary tag, Officer Unmisig had neither noticed nor looked for a temporary tag.

To verify the temporary tagís validity, the officer asked the defendant for his license, registration, and insurance card.† According to the officer, during the time in which he made contact with the defendant, the officer noticed that the defendant had red, watery eyes, slow slurred speech, and a distinct odor of alcoholic beverages.† The defendant did produce a valid license, registration and insurance information.† Officer Unmisig ultimately charged the defendant with DUI and Improper Display of Tag.

The defendant moved to suppress the stateís evidence asserting that once Officer Unmisig determined that the temporary tag was valid, he should have permitted the defendant to leave.† At the hearing on the motion, the defendant testified that he had obtained a temporary tag after his van had failed emissions, rendering his permanent tag invalid.† Defendant argued that the officer never saw the temporary tag because the officer never looked for one prior to the stop and that he viewed the van for only several seconds from behind before the stop.† The defendant therefore claimed the state failed to prove that the tag was obscured.†

On cross-examination by defense counsel, Officer Unmisig testified that he was familiar with the procedure implemented whereby if a vehicle fails emissions tests the bumper tag becomes invalidated and a temporary tag is issued in the interim until the vehicle passes the tests.†

The trial court found that Officer Unmisig, by his own error, failed to notice the temporary tag in the defendantís rear vehicle window, and that pursuant to State v. White, 660 So.2d 664 (Fla. 1995), granted defendantís Motion to Suppress.

†Just as the trial court stated at the hearingís conclusion, this Court finds that the focus of inquiry in this case is the initial stop. After careful examination of the facts on the record, this Court finds that Officer Unmisig did not have a well-founded, articulable justification for initiating the investigatory stop because he erroneously failed to see the valid temporary tag which was properly affixed to the rear window.† Furthermore, the state failed to show that the tag was obscured.† This Court takes further note of the fact that the defendant was not speeding, which may have forced the officer to rush his inspection and decision.† In fact, the defendant was well under the speed limit, but as the officer also testified, the defendant was not impeding or obstructing traffic.† Officer Unmisig should have been more thorough in his examination of the rear of the van before initiating the stop.† It is therefore,

ORDERED AND ADJUDGED that the trial courtís Order on Motion to Suppress is affirmed.

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 25th day of May, 2001.

 

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge

 

Copies furnished to:

The Honorable William H. Overton

Robert† McLaughlin, Esq.
Assistant State Attorney

Charles Hargrove
2912 Roosevelt Blvd., #9
Clearwater, Florida 33140