STATE

v.

LYONS

The State appeals an order granting appellee’s pretrial motion to suppress. We have carefully reviewed the record on appeal and the briefs, and read the transcript of the motion hearing proceedings. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 3.920.

Appellant’s motion alleges that the reason suppression is sought is based on “the lack of probable cause or founded suspicion to stop” appellant’s vehicle. The only facts alleged in support of this conclusion are as follows: [T]hat on March 8, 2007, Deputy Anthony Shea of the Orange County Sheriff”s Office allegedly observed the Defendant’s vehicle traveling with its left brake lights not working. Deputy Shea then initiated a traffic stop of the Defendant’s vehicle. That driving your vehicle with its left brake lights not working, without more, does not constitute articulable suspicion of a criminal act nor probable cause to believe that a traffic infraction has occurred.

We read the motion to say that the stop was unlawful because driving a vehicle with its left brake lights not working is not a violation of the state traffic laws. This is not correct; in fact, it is a misstatement of law. See section 316.234 (2), Florida Statutes, which requires that a vehicle such as that driven by appellant be equipped with electric turn signals; that the lamps showing to the rear, when signaling, shall emit a red or amber light; and that a violation of this section is a noncriminal traffic violation. Implicit in the statute is that a traffic violation occurs if a required turn signal on a vehicle being driven on a public street or highway is not working. Appellant’s motion to suppress was legally insufficient on its face, and the trial judge erred by not reviewing it carefully and denying it without going further.¹

Although perhaps not necessary, we will address the remaining issues at the motion hearing for the future guidance of the court and counsel in this and future cases. Where an investigatory stop of a vehicle occurs, and the stop and all that follows is without an arrest or search warrant, the burden shifts to the State² to establish by a preponderance of the evidence³ that the officer’s actions were lawful. A trial court can take judicial notice of the absence of a warrant in the court file, and this is sufficient to shift the burden to the State.⁴ We are doubtful that the officer’s arrest report, while admissible,⁵ would be sufficient standing alone

Consequently, the order appealed from will be reversed, without prejudice to appellee to file an amended motion to suppress if so desired.

REVERSED and REMANDED.

DONE and ORDERED at Orlando, Orange County, Florida, this __3___ day of _____January__________, 2011.

_/S/________________________________

Rom W. Powell, Senior Judge

_/S/_____________________________________ __/S________________________________ Daniel P. Dawson, Circuit Court Judge

Theotis Bronson, Circuit Court Judge

CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been furnished to the Office of the State Attorney, Appeals Unit, 415 N. Orange Avenue, Orlando, Florida 32801, and Joerg F. Jaeger, Esquire, Attorney for Appellee, 217 E. Ivanhoe Blvd., North, Orlando, Florida 32804, by mail, this _3____ day of ___January____________, 2011.

__/S/_______________________________

Judicial Assistant