PATRICIA GATES

v.

STATE OF FLORIDA

REBULL, J.

[*1] Ms. Gates appeals a judgment finding her guilty of driving a motor vehicle while knowing that her driver's license was suspended. She argues on appeal that the trial court erred in denying her motion to suppress. She contends that the police officer who pulled her over lacked reasonable suspicion to conduct a traffic stop. We disagree, and affirm the judgment.

The officer testified that he was doing "random tag checks" of vehicles traveling northbound on South Dixie Highway. He observed Ms. Gates driving a blue Dodge Dakota pickup truck. The "tag results came back to a trailer¹", and not a Dodge Dakota pickup truck. As a result, the officer conducted a traffic stop of Ms. Gates based on a possible violation of section 320.261, which provides in pertinent part that:

Any person who knowingly attaches to any motor vehicle registration license plate... which plate... was not issued and assigned or lawfully transferred to such vehicle, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 320.261, Fla. Stat. (2019). After stopping Ms. Gates, the officer determined that she was driving with a suspended driver's license.

Ms. Gates maintains that the officer had to personally observe her attaching the license plate to the Dakota "before there can be a reasonable basis for believing [*2] the defendant committed the misdemeanor offense." (Initial Br. at 2). Ms. Gates cites Phillips v. State, 531 So. 2d 1044, 1045 (Fla. 4th DCA 1988) in support of this proposition. This citation is off target.

Phillips stands for the proposition that a police officer may only make a warrantless arrest of a person for a violation of section 320.261 if the officer personally observed the person committing the offense in the presence of the officer. Since violation of statutory section 320.261 is only a misdemeanor, a police officer may arrest without a warrant only if the person has committed the offense in the presence of the officer. § 901.15(1), Fla.Stat. (1985). See, Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975). There is nothing in the record to indicate that the police officer personally observed appellant attaching a registration license plate or a validation sticker which was not lawfully transferred to the subject vehicle. In the absence of such personal observation by the police officer herein, probable cause to make the warrantless arrest did not exist.

Phillips v. State, 531 So. 2d 1044, 1045 (Fla. 4th DCA 1988). Because the officer's arrest of Phillips was unlawful, his search of Phillips incident to such arrest (revealing 13 tin foil packets of cocaine) was also unlawful. As a result, the Phillips court held that the trial court should have granted the motion to suppress the evidence obtained from Phillips resulting from an unlawful arrest and search.

This case does not involve the warrantless arrest of a person for committing a misdemeanor. Nor does it involve law enforcement action that would require probable cause. The question in this case is whether the officer had a "reasonable [*3] suspicion," or a "founded suspicion," that Ms. Gates was involved in criminal activity. He clearly did.² In Ellis v. State, 935 So. 2d 29 (Fla. 2d DCA 2006), Officer Wilson as she did "all day long, every day of the week" - "ran the tag" on the car Ellis was driving. The computer in her patrol car came back with the response of "no record found." Officer Wilson therefore pulled Ellis over and ended up arresting him for driving without a license.

As articulated by the Ellis Court, the issue it had to "decide is whether the officer who stopped Ellis had at least a reasonable, articulable suspicion that the car Ellis was driving was not properly registered." Id. at 32. The Court held that she did.

Id.

We conclude that given her experience and the facts known to her at the time, it was reasonable for Officer Wilson to infer that the car was not properly registered. Accordingly, she was justified in stopping the car to investigate further. [*4] Likewise, in this case the officer's observations that Ms. Gates was driving a Dodge Dakota pickup truck that had a license plate that was registered to a trailer, provided the officer with a reasonable, articulable basis to infer that there was a violation of section 320.261 of the Florida Statutes. At a minimum, the officer "was justified in stopping [Ms. Gates] to investigate further." Under Ellis, the trial judge properly denied Ms. Gates's motion to suppress.

While not binding on us, we also find persuasive the analysis of the United States Court of Appeals for the Eleventh Circuit analyzing the very same factual scenario and argument made in this case. In United States v. Garrette, 745 Fed. Appx. 124, 125 (11th Cir. 2018), the Court reviewed the trial judge's denial of Garrette's motion to suppress.

The district court concluded the totality of the circumstances known to Deputy Smith when he initially pulled Garrette over provided a particularized and objective basis for believing Garrette was violating § 320.261, Florida Statutes, which makes it a second degree misdemeanor to knowingly attach a license plate to a vehicle to which that plate is not lawfully assigned. Garrette was driving a Ford Explorer with an orange transporter license plate.

See id. In concluding that the deputy's initial stop of Garrette was lawful, the Court wrote:

Garrette asserts Deputy Smith could not have had reasonable suspicion to suspect a violation of § 320.261 because Deputy Smith did not see Garrette attach the transporter license plate to the vehicle. The case Garrette cites for this proposition is, however, inapplicable. In Weaver v. State, 233 So. 3d 501 (Fla. 2d DCA 2017), a Florida appellate court invalidated a warrantless arrest for a misdemeanor tag [*5] violation because the officer did not observe the defendant committing the offense. But this case concerns reasonable suspicion, not probable cause. See Arvizu, 534 U.S. at 274, 122 S.Ct. 744 (noting that, for purposes of a reasonable suspicion analysis, "the likelihood of criminal activity need not rise to the level required for probable cause.").

United States v. Garrette, 745 Fed. Appx. 124, 126 n.3 (11th Cir. 2018).3 Similarly, this case involves a "reasonable suspicion analysis," as opposed to consideration under a probable cause standard. Here, the officer's suspicion that Ms. Gates was involved in criminal activity was reasonable. His observations that Ms. Gates was driving a motor vehicle with a license plate registered to a trailer "provided a particularized and objective basis for believing" Ms. Gates was violating section 320.261 of the Florida Statutes. The officer did not have to 4 Leaving aside a possible violation of section 320.261, it is eminently reasonable to suspect that the switching of license plates is evidence of the possibility that a crime was committed, is being committed, or was about to committed. See generally United States v. Hunley, 07-CR-168A, 2010 WL 2510901, at *5 (W.D.N.Y. Feb. 26, 2010), report and recommendation adopted, 07-CR-168, 2010 WL 2510900 (W.D.N.Y. June 17, 2010) (inconsistent license plate sufficient to create reasonable suspicion for an investigatory stop). Especially where, as here, the discrepancy is between a Dodge Dakota pickup truck, and a license plate for a trailer. [*6] personally observe Ms. Gates attach the plate to the Dakota for his suspicion to be reasonable.

Lastly, we note then-Chief Judge Lawson's observations in State v. Laina, 175 So. 3d 897 (Fla. 5th DCA 2015) (quoting earlier cases) that:

To justify temporary detention, only "founded suspicion" in the mind of the detaining officer is required. A "founded suspicion" is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Significant to this analysis, "[r]easonable suspicion ... [is] based on probabilities, not absolute certainty.

State v. Laina, 175 So. 3d 897, 899 (Fla. 5th DCA 2015) (emphasis added) (internal quotations and citations omitted).⁵ For all of these reasons, we affirm the trial court's denial of the motion to suppress and the judgment. The trial judge correctly rejected the argument that the police officer had to "actually see Ms. Gates transfer it or attach it" in order to have a basis to pull her over. AFFIRMED.

TRAWICK AND WALSH, JJ., concur. Copies furnished to all counsel of record.