CARLOS R. PORCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Porcher appeals the denial of his motion to suppress evidence seized during a traffic stop on Interstate 95. The appellate court reversed, finding the traffic stop was pretextual—initiated by a drug investigation deputy rather than for the stated traffic violation—and therefore violated constitutional protections against unlawful search and seizure.
The stop was pretextual and violated Porcher's constitutional rights. All evidence flowing from the unlawful stop is tainted and must be suppressed. The conviction is reversed and Porcher is discharged.
[1] A traffic stop is unlawful if its primary purpose is to investigate for drug possession, even if a minor traffic violation occurred.
[2] Evidence seized as a result of an unlawful pretextual stop is tainted and must be suppressed.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Pretextual stops are violative of the unlawful search and seizure provisions of the state and federal constitutions.”
Establishes the fundamental legal principle that pretextual stops violate constitutional protections.
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Join FLexlaw to unlock all legal intelligencePorcher was stopped while driving northbound on Interstate 95 for allegedly following another vehicle too closely. The actual stop was initiated at th…
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DAUKSCH, Judge.
This is an appeal from an order denying suppression of evidence. Appellant was northbound on Interstate 95 in his car when he was stopped by a deputy sheriff who was called to do so by another deputy who was in an unmarked vehicle. The deputy in the unmarked vehicle was involved exclusively in drug investigation at the time appellant was stopped. After he was stopped appellant was investigated and interrogated by the drug deputy and a search ensued and drugs were seized. The trial judge found that the stop was not “entirely pretexural” or “primarily prete-xural.” The deputy who actually made appellant stop his car did not testify, but it is clear that deputy only stopped the car upon the request of the drug deputy who did testify. It is also clear that this drug deputy was in an unmarked vehicle, was not involved with traffic stops and was solely involved in drug investigation. While appellant was allegedly following other traffic too closely and he was purportedly pulled over for that violation the record discloses the real reason he was detained was to see if he was in possession of drugs. Pretextual stops are violative of the unlawful search and seizure provisions of the state and federal constitutions. Wilhelm v. State, 515 So. 2d 1343, 1344 (Fla. 2d DCA 1987). The state failed to show, absent the pretextual basis, that under the circumstances a reasonable officer would have stopped the appellant’s vehicle. Kehoe v. State, 521 So. 2d 1094 (Fla.1988). This was a pretextual stop and all that flowed from that stop is tainted with the unlawful police conduct. Brooks v. State, 524 So. 2d 1102 (Fla. 3d DCA 1988).
The order denying suppression is reversed, the conviction is reversed and appellant discharged.
REVERSED.
ORFINGER, J., concurs.
SHARP, C.J., concurs specially with opinion.
SHARP, Chief Justice,
concurring specially.
In my view, the state could have prevailed in this case had it produced Deputy Rischito, who stopped Porcher’s car. Deputy Scragg, who was driving an unmarked car and was specifically assigned to a drug interdiction program, testified that he observed Porcher following a truck too closely, which would have justified a traffic stop. § 316.0895, Fla.Stat. (1987). He radioed Deputy Rischito this information but he did not know why Deputy Rischito stopped the car. Deputy Rischito later gave Porcher a citation for driving with an expired tag, but admittedly that was not the reason for the stop.
After the stop was made, Porcher handed Deputy Scragg a bag containing cannabis which created probable cause to arrest him and search the vehicle. Thus, the validity of the traffic stop was vital in this case and it was not sufficiently established by proof at trial. I quite disagree with the majority opinion that the stop here was solely “pretextual” and thus in violation of the mandate set forth in Kehoe v. State, 521 So. 2d 1094 (Fla.1988). The state simply failed to prove a valid basis to stop Porcher’s car.
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Monroe v. State, 543 So. 2d 298 (Fla. 5th DCA 1989)…d). Kehoe, 521 So. 2d at 1096. In other words, the appropriate analysis is not whether the officer could have stopped the car, but whether a reasonable officer would have stopped the car absent another invalid purpose. Id. See also Porcher v. State, 538 So. 2d 1278 (Fla. 5th DCA 1989). Here, there was no founded suspicion of criminal activity which would justify the stop. Neither did the State carry its burden of demonstrating that a reasonable officer on drug patrol would have made a traffic stop for a bald t…
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Velez v. State, 554 So. 2d 545 (Fla. 5th DCA 1989)…have to show, and the trial court would have to find, that “[a] reasonable officer would have stopped the car absent an additional invalid purpose.” Kehoe at 1096. See also Clemons v. State, 533 So. 2d 321 (Fla. 5th DCA 1988); cf. Porcher v. State, 538 So. 2d 1278, 1279 (Fla. 5th DCA 1989) (Sharp, C.J. concurring specially). The only evidence in the instant case regarding the initial stop is found in [*547] two separate portions of Trooper Vogel’s testimony. Upon cross examination by defendants’ counsel, the…
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State v. Gibson, 560 So. 2d 1370 (Fla. 5th DCA 1990)…at issue remains for determination by the trial court after remand. REVERSED and REMANDED. GOSHORN and PETERSON, JJ„ concur. . See § 316.272(1), Fla.Stat. (1989). . See Monroe v. State, 543 So. 2d 298 (Fla. 5th DCA 1989). .See Porcher v. State, 538 So. 2d 1278 (Fla. 5th DCA 1989).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kehoe v. State, 521 So. 2d 1094 (Fla. 1988)
- Lenny Brooks v. State, 524 So. 2d 1102 (Fla. 3d DCA 1988)
- Wilhelm v. State, 515 So. 2d 1343 (Fla. 2d DCA 1987)