JESUS TORRE GARCIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Garcia pleaded no contest to marijuana possession while reserving the right to appeal the denial of his motion to suppress. The court held that the traffic stop was pretextual because the officer admitted he was looking for a reason to stop Garcia and had only stopped one other vehicle for the cited violation in 14 months, making this an unconstitutional seizure.
The court held that the stop was completely pretextual under the Kehoe test because a reasonable officer would not routinely stop a vehicle for an unsecured load, as evidenced by the deputy having stopped only one other vehicle for this violation in 14 months. Garcia's failure to produce a driver's license did not cure the constitutional violation because that discovery was a direct fruit of the illegal stop.
[1] A traffic stop is pretextual when an officer stops a vehicle for a reason other than a genuine belief that a traffic violation has occurred or is occurring.
[2] To determine if a traffic stop is pretextual, the state must show that a reasonable officer would have stopped the car absent an additional invalid purpose.
Previewing 2 of 6 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“the deputy candidly admitted at the suppression hearing that, although the truck was not speeding and did not have an expired tag, he was looking for a reason to stop it”
Establishes the pretextual nature of the traffic stop through the officer's own admission
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Join FLexlaw to unlock all legal intelligenceDeputy Connolly was conducting drug interdiction on Interstate 75 when he began following Garcia's red pickup truck for approximately five miles, desp…
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RYDER, Judge.
Mr. Garcia pleaded no contest to possession of marijuana, reserving his right to appeal the lower court’s denial of his dispositive motion to suppress evidence. He contends that a traffic stop, which resulted in the seizure of the marijuana, was pretextual. We agree, reverse and remand to the lower court with directions to discharge Garcia.
Mr. Garcia’s encounter with the police occurred near Interstate 75 in Pasco County. Pasco County Deputy John Connolly was conducting drug interdiction on the highway with a Pasco County detective and an agent of Drug Enforcement Agency. Deputy Connolly began following Garcia’s red pickup truck. The deputy candidly admitted at the suppression hearing that, although the truck was not speeding and did not have an expired tag, he was looking for a reason to stop it. After he had followed Garcia for approximately five miles, he saw a clear piece of plastic about the size of a sheet of paper blow out of the truck bed. He also noticed a plastic automobile floor mat flapping in the bed of the pickup. Deputy Connolly stopped Garcia, purportedly for violating section 316.520, Florida Statutes (1993), carrying an unsecured load. When asked, Garcia could not produce a driver’s license. Connolly arrested him for driving without a valid license, searched the truck incident to the arrest and discovered the marijuana. Garcia filed a motion to suppress evidence, contending that the stop of his vehicle was pretextual.
Analysis of a traffic stop alleged to be pretextual starts with Kehoe v. State, 521 So. 2d 1094 (Fla.1988), in which the court held the state must show, under the particular facts of the case, that a reasonable officer would have stopped the car absent an additional invalid purpose. We previously addressed this issue in State v. Taylor, 557 So. 2d 941 (Fla. 2d DCA 1990), where we reversed the lower court’s order granting a defendant’s motion to suppress. Our first ground for reversal was that the stop was not completely pretextual. While the police were suspicious that Taylor might be carrying drugs, Taylor committed a civil traffic infraction in front of the officers. We applied the Kehoe test, and determined that the record contained no evidence that the average police officer would not have stopped Taylor for the violation. We cannot say the same in this case. Deputy Connolly admitted he had only stopped one vehicle for an unsecured load in the past fourteen months and the circumstances were nothing like those here. Cf. Velez v. State, 554 So. 2d 545 (Fla. 5th DCA 1989), review denied, 563 So. 2d 635 (Fla.1990) (one of the criteria for determining if the Kehoe test has been met is whether the officer has previously conducted traffic stops for the same offense). The record does not establish that this was the type of traffic stop an officer would routinely make. In fact, Garcia was not arrested or ticketed for an unsecured load. We hold this stop was completely pretextual.
The state argues that even if the stop were pretextual, Garcia’s failure to produce a driver’s license dissipated the taint of the pretextual stop. See Taylor, 557 So. 2d at 942 (defendant’s abusive and highly confrontational behavior during traffic stop justified his arrest and subsequent search of the vehicle). We disagree. But for the illegal stop, the deputy would not have discovered that Garcia was without a driver’s license. The arrest on this charge and the subsequent search of Garcia’s truck were both fruits of the illegal stop. See Brooks v. State, 524 So. 2d 1102 (Fla. 3d DCA 1988) (evidence found in search of vehicle incident to arrest for failure to produce a valid driver’s license suppressed when initial stop was pretextual). The evidence obtained as a result of the stop must be suppressed.
Reversed and remanded with directions to discharge Mr. Garcia.
THREADGILL, C.J., and FULMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kehoe v. State, 521 So. 2d 1094 (Fla. 1988)
- Velez v. State, 554 So. 2d 545 (Fla. 5th DCA 1989)
- Lenny Brooks v. State, 524 So. 2d 1102 (Fla. 3d DCA 1988)
- State v. Taylor, 557 So. 2d 941 (Fla. 2d DCA 1990)