County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Suppression not warranted even if an officer’s basis for the stop was invalid, where sufficient facts existed to justify the stop independent of the officer’s reason. – Judgment affirmed. Barton v. State, No. 03-26 APANO (Fla. 6^th Cir. App. Ct. Jan. 21, 2004).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

JOHN GLENN BARTON

Appellant,

v. Appeal No. CRC 03-00026 APANO

UCN522003AP000026XXXXCR

STATE OF FLORIDA

Appellee.

_____________________________/

Opinion filed __________________.

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Michael Andrews

J. Kevin Hayslett, Esq.

Attorney for appellant

C. Marie King, Esq.

Assistant State Attorney

ORDER AND OPINION

THIS MATTER is before the Court on John Barton’s appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

The defendant pleaded no contest to DUI charges, preserving his right to seek review of the trial court’s order denying his motion to suppress. The defendant claimed that any evidence of the DUI should have been suppressed because the police should never have stopped him. The officer testified that he stopped the defendant because his side marker lights were not working. The defendant argues that the Florida statutes do not require side marker lights; therefore, there can be no violation even if they were not working properly.

This Court reviews this matter under a de novo standard. Ornealas v. United States, 517 U.S. 690 (1996); Connor v. State, 803 So.2d 608 (Fla. 2001). The Court is not persuaded by the State’s argument that Florida law requires side marker lights. None of the statutes cited by the State require side marker lights. Also, stopping the defendant because of an equipment violation is not warranted under the facts of this case because the non-working marker lights did not cause an immediate danger to any one. See Doctor v. State, 596 So.2d 442 (Fla. 1992). This Court is also not persuaded by the State’s argument that the Doctor case is no longer the law on this point.

Suppression, however, is not warranted in this case because the officer had sufficient justification to make the traffic stop. A review of the transcript of the suppression hearing reveals that the officer testified that he observed the defendant driving at approximately 1:49 A.M. The officer observed that the side marker lights were not working on the defendant’s truck. The officer also observed the defendant go across three traffic lanes without signaling and then drive for approximately thirty to forty feet without his headlights on. The last observation is what warranted the stop. It is against Florida law to drive at 1:49 A.M. without having the headlights on. See §316.217(1)(a), Fla. Stat. (2002).

The fact that the defendant turned off his headlights and drove on a private road does not affect the stop. The officer testified that this private road provided access for several residences, and that it was open to the public for purposes of vehicular traffic. Thus, the private road is viewed for purposes of the traffic law as a public street or highway. See §316.003(53), Fla. Stat. (2002). Although the defendant presented evidence to the contrary on the issue of the public’s right to access the road, the trial court was free to resolve the conflicts in the testimony. See Cripe v. Atlantic First National Bank, 422 So.2d 820 (Fla. 1982). In addition, the officer testified, and the defendant did not dispute, that the defendant had his headlights off while traveling for at least five feet on the public road before he made his turn onto the private road.

The fact that the officer testified that his basis for the stop was the non-working marking lights, does not affect the stop. If sufficient facts exist to justify the stop, it does not matter that the reason the officer stated for the stop might be invalid. See Hernandez v. State, 784 So.2d 1124 (Fla. 3d DCA 1999). The Court must make its determination based upon the totality of the circumstances. The stop is justified if it appears in the record that the stop could have been based on an offense or infraction other than that articulated by the officer involved. In addition, “where the trial court determines that a stop does not offend the Fourth Amendment for incorrect reasons, that finding should be upheld where it is supported by an alternative, even if unarticulated, theory.” Stone v. State, 856 So.2d 1109, 1112 (Fla. 4^th DCA 2003). Since the record shows that the officer had probable cause to believe that the defendant committed the infraction of driving at night without his headlights on, the officer was justified in making the stop. Therefore, it was not error for the trial court to deny the defendant’s motion to suppress.

IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of January, 2004.

_______________________

W. Douglas Baird

Circuit Judge

_______________________

Nancy Moate Ley

Circuit Judge

_________________________

John A. Schaefer

Circuit Judge

cc: State Attorney

Judge Andrews

J. Kevin Hayslett, Esq.