STATE OF FLORIDA, APPELLANT,
v.
LARRY EUGENE GIBSON AND JOHN OLIVER RILEY, APPELLEES
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Florida appeals a trial court's finding that a warrantless vehicle stop was pretextual. The appellate court reversed, holding that the trial court's credibility findings regarding the officer's testimony about the defective muffler stop contradicted its legal conclusion that the stop was pretextual, requiring remand to address the validity of the search consent.
The stop was not pretextual because the trial court's finding that the arresting officer's testimony was credible and true—establishing normal police practice of stopping vehicles with defective mufflers—contradicted its legal conclusion of pretext. The case is remanded to address the validity of the defendants' consent to search.
[1] A warrantless vehicle stop is lawful if a reasonable officer would have made the stop absent an additional invalid purpose.
[2] A trial court's finding that a vehicle stop was pretextual is unsupported by the record when the court credits the arresting officer's testimony that the stop was for a c…
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Join FLexlaw to unlock all legal intelligence“The state must show that under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose.”
Establishes the Kehoe test standard for evaluating warrantless vehicle stops.
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Join FLexlaw to unlock all legal intelligenceAn officer on general patrol heard an extremely loud muffler and stopped the vehicle driven by the defendants. The officer testified it was normal pra…
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COBB, Judge.
We are once again confronted with a Kehoe question: was a warrantless stop of a vehicle one which a reasonable officer would have made absent an additional invalid purpose? See Kehoe v. State, 521 So. 2d 1094, 1097 (Fla.1988); Clemons v. State, 533 So. 2d 321 (Fla. 5th DCA 1988).
Unlike Clemons, wherein the trial judge had neither credited nor discredited the testimony of the arresting officer, the trial judge in the instant case specifically found:
That the evidence presented in this cause by the witnesses who testified herein (i.e., the arresting officer and an assisting officer) is accepted by the Court as a credible and true account of the facts here in issue regarding the stop and subsequent search of the defendants and their vehicle.
In Kehoe the facts revealed that Kehoe was stopped by the police because of their suspicion of drug activity; it was only after their decision to stop him that the police discovered a bent license tag. Therefore, the Florida Supreme Court found that “it is unlikely that a reasonable officer would have stopped Kehoe solely for this violation (the bent tag).” The supreme court then adopted the test: “The state must show that under the facts and circumstances a reasonable officer would have stopped the vehicle absent an additional invalid purpose.” Ironically, in Kehoe the additional purpose for the stop (i.e., suspicion of drug activity) was held to be valid, given the cumulative circumstances perceived by the officers prior to the arrest.
In the instant case the arresting officer, who was on general patrol at the time, testified that it was the normal practice to stop vehicles with defective muffler systems if traffic and priorities permitted, as in this instance.1 It was uncontroverted that the arresting officer heard the “extremely loud” muffler prior to the stop. There was no evidence adduced by the defense to indicate that a reasonable officer would not stop a vehicle with a defective muffler where the circumstances permitted. We can take judicial notice that such stops are common, unlike a “bald tire” offense2 or a “following too close” offense.3 If the arresting officer’s testimony was true in regard to the normal (hence, reasonable) practice of the police, as was found by the trial court, then the stop was not pretextual. Therefore, the subsequent legal finding by the trial court that the stop was pretextual is without factual support in the record and is totally inconsistent with the trial court’s factual finding that the arresting officer’s testimony was credible and true.
The trial court expressly did not address the issue of the validity of the defendants’ consent to search the vehicle, so that 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).
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Blackmon v. State, 570 So. 2d 1074 (Fla. 1st DCA 1990)…at specific offense during the 30-day period around the time of appellant’s arrest. Accordingly, absent evidence to the contrary, a reasonable officer would have stopped appellant for this infraction and the stop was not pretextual. State v. Gibson, 560 So. 2d 1370 (Fla. 5th DCA 1990). Even when the initial stop is valid, if there is no founded suspicion for a lengthy detention the stop should be limited to time required to write a traffic citation. State v. Anderson, 479 So. 2d 816 [*1076] (Fla. 4th DCA 1985…
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Smith v. State, 564 So. 2d 503 (Fla. 5th DCA 1990)…p sign “did not make a difference” in regard to his decision to make the stop. Neither Locke nor Peder-son testified that, absent the message from Thames, they would have stopped the vehicle for the traffic infraction. Cf. State v. Gibson and Riley, 560 So. 2d 1370 (Fla. 5th DCA 1990). No traffic charge was made against the driver. Smith was questioned by Thames, who arrived on the scene after the stop, and subsequently arrested and searched. Neither Locke nor Pederson supplied any basis for the stop, other…
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Disinger v. State, 569 So. 2d 824 (Fla. 5th DCA 1990)…counsel. AFFIRMED. COWART and GOSHORN, JJ., concur. . While the requirement of face-to-face confrontation is a constitutional right, this court has held previously that it is not a fundamental right and, therefore, can be waived. State v. Gibson, 560 So. 2d 1370 (Fla. 5th DCA 1990).…
Previewing 3 of 5 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)
- Monroe v. State, 543 So. 2d 298 (Fla. 5th DCA 1989)
- Porcher v. State, 538 So. 2d 1278 (Fla. 5th DCA 1989)
- Orange Buick Co., Inc. v. Durie, 533 So. 2d 321 (Fla. 5th DCA 1988)
- U.S. Allied, Inc. v. ROE, 533 So. 2d 321 (Fla. 5th DCA 1988)