COUNTY CRIMINAL COURT: CRIMINAL LAW – Search and Seizure – Stop – Because driving was in afternoon, only slightly unusual and observed for a brief time, stop not justified. Order granting motion to suppress affirmed. State v. Frioli, No. CRC 05-69 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 05-69 APANO

     UCN522005AP000069XXXXCR

JOHN FRIOLI

 

            Appellee.

________________________________/

 

 

Opinion filed ____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge William Overton

 

Jan Andrew Press, Esq.

Attorney for appellant

 

John Mulvihill, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the State’s appeal from an order of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            At approximately 4:30 in the afternoon, a police officer observed the defendant’s vehicle and followed it for about four blocks. The defendant’s vehicle was weaving somewhat within its lane and when it made a right hand turn the vehicle’s tires came out of the curb lane and nearly struck the curb. The vehicle then swerved back into the curb lane and its left tires crossed over into the center lane. Believing the driving was unusual, the officer stopped the defendant’s vehicle because he was concerned about the driver’s welfare. The officer also believed that the red lens covering the tail light on the defendant’s vehicle was cracked. The defendant was ultimately arrested for DUI, and filed a motion to suppress, claiming the stop was improper. The trial court granted the motion to suppress, and the State is appealing that decision.

            The State argues that the stop was proper because the driving was unusual. In support of its position, the State claims that the trial court found that the driving was unusual. The State appears to be arguing that the trial court found that if the driving had occurred late at night, the stop would be justified, but since the driving occurred during the day, the stop was not justified. The State’s position appears to be that while unusual driving late at night might increase the justification for a stop, unusual driving --- at any time of the day --- justifies a stop.

Although the trial court found unusual driving in this case, it appears that this finding was tepid at best. The officer’s testimony about the defendant’s driving was somewhat impeached. Defense counsel was able to point out that the officer’s report mentioned nothing about swerving within the lane. The trial court found on the record that the defendant’s driving was an unusual pattern, but the written order only finds the “officer’s testimony credible to show the operation of the defendant’s vehicle approaching a pattern of unusual driving.” [1] The unusual driving essentially consisted of one sharp turn that was quickly (although exaggeratedly) corrected. At worst, the driving was only marginally unusual, and not enough to be considered a pattern, or even approaching a pattern. If the driving were coupled with another factor, such as it being late at night, the driving might have justified a stop. If the driving were a bit worse or had continued a bit longer, the driving, even in the afternoon, might have justified a stop. However, because the driving was in the afternoon, only slightly unusual, and observed for a brief time, this Court agrees with the trial court that the stop was not justified under the circumstances.

            The State also contends that the stop was justified because the taillight was defective. This Court does not agree. Florida statute §316.221(1) requires a motor vehicle to have “at least two tail lamps mounted on the rear, which, when lighted … shall emit a red light plainly visible from a distance of 1,000 feet to the rear … .” There was no contention that the lamps were not working properly; the red lens covering one of the tail lamps, however, was cracked. The trial court found the middle and part of the lower piece of the right lens missing that would cover the reverse bulb and part of the red reflector. The court, however, found that this would not affect traffic. The taillight was properly lighted and emitting a red light.

 In Doctor v. State, 596 So.2d 442 (Fla. 1992), the Florida Supreme Court found that a traffic stop for a cracked lens cover over a taillight was improper because the taillight itself was properly working and emitting a red light. Since that is the factual situation in the case at bar, this Court is bound by that precedent. The cracked lens cover did not justify a traffic stop.

This is unlike the situation in State v. Schuck, 913 So.2d 69 (Fla. 4th DCA 2005), where the court ruled that a motion to suppress should have been denied because there was a hole the size of a fist in the red lens covering the  taillight and a white, rather than a red, light emanated from the taillight --- a violation of §316.221. In reaching its decision the court distinguished other cases in which the stops were ruled unlawful because there were only cracks in the plastic lens covering the taillight.

Neither the cracked taillight nor the driving justified the stop in this case. The trial court correctly granted the defendant’s motion to suppress.

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of April, 2006.

 

                                                                        _______________________________

                                                                                    David A. Demers

                                                                                    Circuit Judge

 

 

 

                                                                        ______________________________
                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge

 

 

 

 

                                                                        ______________________________

                                                                                    Irene H. Sullivan

                                                                                    Circuit Judge

cc:        State Attorney

 

            Jan Andrew Press, Esq.

 

            Judge Overton

 


[1] There is nothing in the record to explain why the in-court pronouncements appear to conflict with the written order apparently prepared by the defense counsel.