Opinion
Case No. 3:03-cr-31-J-32HTS
March 28, 2003
REPORT AND RECOMMENDATION
Specific, written objections may be filed in accordance with 28 U.S.C. § 636 and Rule 6.02, Local Rules, United States District Court, Middle District of Florida, within ten (10) days after service of this document. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
I. Status
This cause is before the Court on the Motion to Suppress Physical Evidence and Statements of Defendant (Doc. #32; Motion), filed on February 27, 2003, and the Motion to Suppress Evidence and Statements (Doc. #35; Motion to Suppress), filed on March 3, 2003. The government filed opposition in response to the Motion and Motion to Suppress on March 7, 2003. See United States' Response in Opposition to Defendants' Motions to Suppress Evidence and Statements (Doc. #37; Opposition). An evidentiary hearing was held before the undersigned on March 7, 2003, and continued on March 12, 2003.
The evidentiary hearing was continued because Defendant Gloria Leal indicated on March 1, 2003, that she was too ill to proceed.
II. Facts
Jason Lemery has been a state trooper with the Florida Highway Patrol since 1994 and is assigned to the Florida Highway Patrol Contraband Interdiction program. He works with a partner, Jimmie Douglas Davis, Jr., and canine York. Trooper Davis has been his partner for the last five years. They work together to conduct traffic stops on the roadways. Trooper Lemery has received specialized law enforcement training and made hundreds of traffic stops.A. Stop
On January 21, 2003, Trooper Lemery was en route to Jefferson County with Trooper Davis and York to attend a traffic detail. They took the long way to get to the assignment so they could work along the way. They were traveling westbound on Interstate 10 in separate vehicles, and Trooper Lemery was monitoring traffic traveling eastbound. While traveling in Suwannee County, Trooper Lemery noticed a dark-colored Ford Expedition traveling eastbound. He did not observe the front tag of the vehicle, but did notice the windows were darkly tinted. When he passed the vehicle, he was unable to see the driver through the window.
Trooper Lemery turned his vehicle around, activated the lights, and attempted to stop the Expedition, because he believed it had illegally tinted windows. Prior to the traffic stop, the trooper noticed the vehicle had a Texas license plate. The vehicle pulled over to the side of the road around mile marker 287, and Trooper Lemery contacted the occupants at the front passenger window.
Trooper Lemery indicated in his report, and told Special Agent Robert H. Riley, he saw the vehicle at 2:05 p.m. and stopped it at 2:10 p.m. However, he has since changed his report to indicate he saw the vehicle at 2:00 p.m. and stopped it at 2:05 p.m. Trooper Lemery testified at the evidentiary hearing he stopped the Expedition at 2:05 p.m. He stated Trooper Davis's watch, the clock in his patrol car, and the time on the tape are not synchronized. Trooper Davis read and signed the report indicating the traffic stop occurred at 2:10 p.m.
The passenger window was rolled down, and Gloria Leal was seated in the passenger's seat, Chantae Leal was driving, and two small children were seated in the back. He asked Chantae Leal for her driver's license, and she handed it to him. He noticed she was very nervous and visibly shaking. She presented a valid driver's license, which confirmed her name and indicated she lived in Plant City, Florida. Trooper Lemery did not call dispatch to check the validity of the tag or driver's license or to verify that the vehicle was not stolen. He then asked her for proof of insurance and the vehicle registration. The registration matched the Texas license plate, and the insurance listed the names of David and Elizabeth Torres and an Orlando, Florida, address.
Trooper Lemery tested the passenger window with a tint meter and discovered the windows were, in fact, illegally tinted in violation of Florida Statutes Section 316.2953. He asked Chantae Leal to step out of the vehicle and accompany him to his patrol car. He wanted to inquire further because she was acting visibly nervous. The questioning had nothing to do with the window tint violation. She stood at the right front tire, and Trooper Lemery stood behind the front passenger door of his vehicle. She was not free to leave at this point, but she was not under arrest. He took her back to the patrol car to notify her of the illegally tinted windows and write her a warning. He was not trying to obtain information concerning the window tint violation, because the investigation into that violation was complete when Trooper Lemery used the tint meter. The officer indicated he only intended to write her a faulty equipment warning, as the vehicle appeared to be registered in another state.
The trooper testified at the time he pulled the vehicle over, he could have made the traffic stop based on a violation of Florida Statutes Section 316.610, instead of Section 316.2953. He also stated he has known about Section 316.610 since entering law enforcement, but did not include that section in his report or in the probable cause affidavits. The officer further represented if he had written Chantae Leal a citation, it would have cited Section 316.610. His understanding of Section 316.2951 at the time of the evidentiary hearing was different than at the time of the traffic stop. He did not know the tinting statute made a distinction between out-of-state vehicles and those registered in Florida.
Ms. Leal continued to be visibly nervous even after he told her he was only issuing her a notice. During this time, Trooper Lemery inquired about the names on the registration, and she stated David Torres is her boyfriend and he is now divorced. She borrowed the vehicle from him around Christmas to take her mother and the two children to Texas to visit a sick aunt. They were heading back to Plant City.
After Trooper Lemery conducted the tint reading, Trooper Davis arrived and stayed with Chantae Leal while Trooper Lemery went to speak to Gloria Leal. It only took Trooper Davis one to two minutes to reach the traffic stop and meet up with Trooper Lemery. Trooper Lemery spoke to Gloria Leal to dispel any suspicion that had arisen due to the nervousness exhibited by Chantae Leal and to verify her representations. He asked Gloria Leal for identification, but she indicated her identification was in her luggage. The officer also asked her about their travel plans, and she stated they were heading to Atlanta, Georgia, to visit her sister, who was involved in a serious automobile accident. During this conversation, Gloria Leal was also very nervous and avoided eye contact. While the trooper was talking to her, she kept adjusting the children's seat belts even though the children seemed fine. She stated she took a Greyhound bus to Texas. Both Defendants relayed they were traveling from San Antonio, Texas.
Trooper Lemery returned to his patrol car and asked Chantae Leal if her mother knew where they were headed, because her mother gave him a different story. She stated her mother was on medication for memory loss, but she could not recall the name of the drug. Trooper Davis testified that when Trooper Lemery was walking back to the patrol car after speaking with Gloria Leal, he had "a funny look on his face," which meant he had received a different story from Gloria Leal. Transcript of Motions to Suppress Proceedings (Doc. #47; Second Tr.) at 79. As a result, he went to retrieve York. Trooper Lemery continued to complete the written warning while Trooper Davis retrieved York.
Trooper Davis bases the decision of whether to walk the dog on the nervousness of the individuals, their origin and destination, and inconsistent statements. However, it is generally not one action in particular.
B. Canine Sniff
Approximately four to five minutes passed from the time the Expedition was stopped until Trooper Davis walked York around the vehicle. While York was walking around the Expedition, Chantae Leal was standing at Trooper Lemery's vehicle and staring into the woods. Trooper Davis brought York up to the rear of the vehicle and prompted him to search for drugs. York started sniffing at the right rear of the vehicle, went down the passenger side, and across the front. When York was coming across the front of the vehicle, he detected an odor, started to crawl underneath the truck to get to the source, and began scratching. Trooper Davis testified this behavior indicates a positive alert for drugs. The officer then rewarded York with a piece of rope.
Trooper Lemery noticed Trooper Davis had already rewarded York by the time he walked around the right front headlight. York is rewarded with a rope when he makes a positive alert for drugs and is never rewarded with the rope unless he makes an alert. Trooper Lemery could not recall whether he had completed the warning by the time York alerted, but he did not give the completed warning to Chantae Leal.
After York alerted, Trooper Davis spoke to Gloria Leal and asked her what type of medicine she was taking, whether she had her medicine, and how she was feeling. During that same time, Trooper Lemery asked Chantae Leal to sit in his patrol car. The officers activated the camera in Trooper Davis's Expedition and the microphone system in Trooper Lemery's patrol car. There was no video recording of the actual traffic stop. Trooper Davis put York back in his Expedition, and Trooper Lemery escorted Gloria Leal and the two children from the vehicle and placed them in the back of the patrol car. Trooper Lemery did not advise either Defendant of her constitutional rights. They were placed in the patrol car, because the dog alert gave the officers probable cause to search the vehicle. Trooper Lemery testified at this point, the individuals were in investigative detention and not free to leave, and they were placed in the patrol car for safety reasons. While Trooper Lemery had the ability to listen to the conversation in the back of the patrol car, he could not understand Defendants as they were whispering in Spanish.
The videotape indicates the recording started at 2:12 p.m.
Trooper Davis testified he records each time York is used on a Search and Find form. He creates a case number for every use and indicates whether York alerted. He testified an analysis of those records establishes that in 2002, York was used 291 times and had 86 alerts. Of those 86 alerts, contraband was found 70 times.
C. Search
They began searching the vehicle. Trooper Davis commenced at the front where York alerted and Trooper Lemery focused on the back passenger area. After searching the passenger compartment, Trooper Lemery started to search underneath the vehicle and noticed it looked like someone had poured muddy water over the fuel tank. He testified it was obvious the muddy water was poured and not the result of an accumulation of mud and debris from traveling. Additionally, he observed tool marks on the straps that secured the fuel tank to the vehicle. He also noticed there was no continuous dust: line around the washers. Based on his training and experience, he believed the fuel tank had been taken off the vehicle recently. At that point, Trooper Davis turned his Expedition around so they could access the fiberoptic scope to determine whether there were any illegal substances in the fuel tank. However, the officers were unable to see anything with the scope, because the lead was not long enough and the gas tank was large.
While underneath the vehicle, Trooper Lemery noticed there was no dust on the bar that secured the spare tire, and therefore, he concluded the spare tire had recently been removed. He did concede there could have been a valid reason for taking the spare tire down. The officer used a brass hammer and stethoscope to echo test the spare tire to determine whether there were any foreign objects present. If there is a foreign object in the tire, the hammer causes a dull thud. Once Trooper Lemery hit the tire, he heard the dull thud. While a flat tire will make the same noise, this tire was not flat. He decided to conduct one more test before they took the tire down. He used a measuring device called the Buster to read the density of the tire. The officer indicated a normal tire may give readings between 20 and 40, but this tire gave readings as high as 75 or 80, which revealed there was a foreign object in the tire. Based on these results, Trooper Lemery concluded they needed to take the spare tire down to investigate further.
They were standing behind the vehicle when they took the tire down and rolled it. The troopers recalled that the tire felt heavier than a normal truck tire, and upon rolling it, they could hear objects falling in the tire. They rolled the tire in front of Trooper Davis's vehicle and Trooper Davis took out the valve stem and cut the tire open with a knife. Upon doing so, they discovered ten packages of a substance they believed to be marijuana, based on its appearance and odor.
After examining the spare tire, they resumed their search of the vehicle. Trooper Lemery went underneath the vehicle, took the fuel line off the gas tank, and put the lead of the fiberoptic scope into the tank. He was able to see the corner of a package, which appeared to be a food saver bag. As a result, the officer believed there was contraband in the fuel tank. At this point, he contacted Drug Enforcement Agency (DEA) Special Agent Robert H. Riley. Special Agent Riley was contacted around 2:30 p.m.
Special Agent Riley has been a special agent with the DEA for almost thirteen years and was previously employed with the Florida Department of Law Enforcement. He has a master's degree in criminology and is a graduate of the DEA academy.
The troopers continued to search the vehicle and found some objects had been removed from the rear quarter panels, as the air conditioner was improperly mounted and the interior trim had been cut away. They also noticed slide marks, chili peppers, and another type of air freshener in the area. The interior tray of the center console had been cut away. However, no additional contraband was found in those areas.
They stopped searching the vehicle when the tow truck arrived. The tow truck brought the vehicle to the impound yard of the Lake City Division of Forestry. Defendants were driven to the impound yard in the back of the patrol car. A thorough search of the vehicle at the impound yard revealed a Florida license plate underneath the Texas tag. In addition, Trooper Lemery did not realize until after the detention of Defendants that he had been given a Florida registration for the vehicle.
Special Agent Riley met the troopers at the impound yard at 4:45 p.m. The vehicle was put on a lift and the fuel tank was removed. They discovered five bricks of a substance later identified as cocaine in the fuel tank. The packages were vacuum sealed in food saver bags and placed in the bottom ridges of the fuel tank. Special Agent Riley observed another agent field test the substance and confirm the presence of cocaine. All of the packages were sent to the lab for further testing.
D. Statements
Special Agent Riley spoke to Gloria Leal after asking her to get out of the patrol car. He asked her if she spoke and understood English, and she indicated she did. He informed her she was under arrest and read her the Miranda warnings from the DEA 13A card he keeps "on [his] person." Second Tr. at 96. She indicated she would answer questions. He inquired about her travel plans, and she recounted that her daughter had borrowed the vehicle from her boyfriend, but she did not know his name. They were traveling from San Antonio after visiting with family. Her sister, Maria, had been in an accident in Atlanta around Christmas. Chantae Leal drove her from San Antonio to Atlanta to visit her sister. Later she took a bus back to Texas, but she refused to state specifically which bus line she used. They were traveling to Gainesville, Florida, to visit her injured sister, Maria, when they were stopped. She told Special Agent Riley the children belonged to her other daughter, Janet. When the agent inquired about the drugs, Ms. Leal asked for an attorney and the questioning ceased.
Miranda v. Arizona, 384 U.S. 436 (1966).
He read from the card as follows:
"Before we ask you any questions, you must understand you have the right to remain silent. Anything you say can be used against you in court. . . . You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. Do you understand and are you willing to answer some questions?"
Second Tr. at 96-97. While the DEA has a written Waiver of Rights form, which is signed by the suspect, one was not used in this case.
Special Agent Riley then asked Chantae Leal to step out of the patrol car. He confirmed she spoke and understood English. The agent advised her of her constitutional rights by reading the Miranda warnings from the DEA 13A card. She acknowledged she understood her rights and agreed to speak with the agents.
She told him she borrowed the vehicle from her boyfriend, David Torres, to drive herself, her mother, and her Aunt Janie from Plant City to San Antonio to visit an aunt who had been in a car accident. She also drove her mother and Aunt Janie to Atlanta to visit another aunt. After staying for a week, they drove back to San Antonio and were now returning to Plant City. She indicated Aunt. Janie stayed in Texas and the children belonged to her sister, Janet. She told Special Agent Riley her boyfriend was in Puerto Rico, but she refused to give him any other information. Shortly thereafter, she asked to speak to an attorney and indicated that they had no evidence and she would win in court. She was returned to the patrol vehicle.
After speaking with both Chantae and Gloria Leal, Special Agent Riley observed another agent inform them that they were going to jail and ask for suggestions on how to handle the custody of the children. Chantae Leal wanted to contact the children's mother, Janet Leal. Ms. Leal used Special Agent Riley's cell phone to call her. He overheard the conversation, which was very short and emotionless. Chantae Leal said, "Janet, they stopped us; they caught us in Suwannee County. You need to come to the Florida Highway Patrol station in Lake City to get the kids." Second Tr. at 91. Special Agent Riley gave Chantae Leal directions to the station from Plant City or Tampa, Florida, which she relayed to her sister.
The troopers transported Chantae and Gloria Leal to the Florida Highway Patrol station, and Janet Leal arrived around 11:00 p.m. She was advised that she was not under arrest and asked whether she would speak with Special Agent Riley. She agreed to talk to him and presented a Florida driver's license confirming her identity. She explained she is the mother of the children and separated from the children's father. She was not upset, but instead disturbingly calm. As a result, Special Agent Riley expressed concern about releasing the children to her. He asked her how the children wound up in the custody of Chantae and Gloria Leal.
She indicated that around Christmas, her aunt, Maria, was in an accident in Atlanta and most of the Leal family traveled from Plant City to Atlanta to visit her. She flew to Atlanta with her two children, but she had to return to Tampa. The children were, left with Chantae and Gloria Leal, but she did not know where they were taken. However, Gloria Leal is the children's primary caretaker. She assumed they were returning to Plant City when they were stopped. None of the statements made to Special Agent Riley were tape recorded.
Trooper Lemery did not return Chantae Leal's driver's license and vehicle registration until she appeared in court. Troopers Lemery and Davis and Special Agent Riley identified Defendants as the individuals in the Expedition that was stopped on January 21, 2003.
E. Maureen Hannon's Testimony
Ms. Hannon, an investigator for the Federal Public Defender's Office, testified on behalf of Defendants. She has been a criminal defense investigator for eight years. She analyzed the traffic logs completed by Troopers Lemery and Davis for the year 2002. She found, of the vehicles he stopped, Trooper Lemery had searched 74.68 percent of the vehicles with Texas tags, 24.45 percent of vehicles with other out-of-state tags, and 19.09 percent of vehicles with Florida tags. Trooper Davis had searched 86.84 percent of vehicles with Texas tags, 16.81 percent of vehicles with other out-of-state tags, and 10.66 percent with Florida tags. However, Ms. Hannon could not testify as to the percentage of vehicles traveling on Interstate 10 with Texas tags.
III. Summary of Argument
Chantae Leal asks the Court to suppress the physical evidence seized, statements made, and any other evidence obtained as a result of the improper traffic stop and unlawful detention. See Motion at 1-2. Gloria Leal seeks an order suppressing "[f]ive kilograms of cocaine and twenty pounds of marijuana, or any reference thereto, and any statements of the defendants made in the rear of the FHP vehicle following their arrest." Motion to Suppress at 1. Specifically, Defendants contend the officers lacked probable cause to stop the vehicle for a window tint violation, the scope of the detention was unlawfully exceeded, and the statements made in the back of the police vehicle were improperly recorded.
The government concedes Defendant Chantae Leal has a reasonable expectation of privacy in the vehicle. See Transcript of Motions to Suppress Proceedings (Doc. #46; First Tr.) at 4.
The government challenges Gloria Leal's standing to object to the search of the vehicle. See First Tr. at 4.
IV. Analysis
A. StandingDefendant Gloria Leal challenges the traffic stop, seizure of her person, and search of the vehicle. See Motion to Suppress ¶ 5. She argues the search was the result of an illegal stop. The government contends Ms. Leal does not have standing to object to the search, because she "had no property or possessory interest in the vehicle, and had no legitimate expectation of privacy in the vehicle." Opposition at 7.
In making a determination of whether a defendant has standing to challenge a search, the question is whether she possessed a reasonable expectation of privacy in the object of the search. See United States v. Cooper, 203 F.3d 1279, 1283-84 (11th Cir. 2000). In fact, "[a] passenger usually lacks a privacy interest in a vehicle that the passenger neither owns nor rents, regardless of whether the driver owns or rents it." United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). The burden is on the defendant to prove she has a legitimate expectation of privacy. See United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999).
In this case, Gloria Leal has made no showing that she has a legitimate expectation of privacy in the vehicle. In fact, her counsel conceded at the evidentiary hearing that "[s]he does not assert a property or a possessory interest in the automobile by the testimony that was here today." Second Tr. at 116. Indeed, she only attempts to show a property interest by contending she had luggage in the vehicle. However, she is not complaining the allegedly unlawful search was of her luggage. Her presence alone is not enough to establish standing to challenge the propriety of the search. See United States v. Gonzalez, 952 F. Supp. 813, 815-16 (M.D. Ga. 1997), aff'd, 189 F.3d 483 (11th Cir. 1999) (unpublished table decision). Thus, she has failed to prove the search of the Expedition implicated her Fourth Amendment rights. See Chavesr 169 F.3d at 690. She does not have standing to contest the search.
However, the analysis of the standing issue cannot end here. Ms. Leal not only contests the propriety of the search, but alleges the traffic stop and subsequent detention were unlawful. See Motion to Suppress ¶ 5. A passenger in a vehicle does have standing to challenge the legality of the initial stop and prolonged detention. See United States v. Lawson, 782 F. Supp. 1546, 1547-48 (S.D. Fla. 1992); see also United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001); United States v. Woodrum, 202 F.3d 1, 5-6 (1st Cir. 2000); United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993). "Whereas the search of an automobile does not implicate a passenger's fourth amendment rights, a stop results in the seizure of the passenger and driver alike. Thus, a passenger of a stopped automobile does have standing to challenge the seizure as unconstitutional." Roberson, 6 F.3d at 1091 (footnote omitted).
Based on the foregoing, the Court finds Gloria Leal has standing to contest the initial stop and continued detention.
B. Probable Cause for the Traffic Stop
Defendants contend the evidence in question should be suppressed as the initial stop was unlawful. See Motion at 2; Motion to Suppress ¶ 5. The government argues the stop was valid, because it was based on a violation of law, or, in the alternative, the officer's good faith belief that a violation was committed. See Opposition at 4.
In 1996, the United States Supreme Court decided Whren v. United States, 517 U.S. 806 (1996), which established a clear test for determining when a traffic stop is reasonable. The Court found "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id. at 813. It held if an officer has probable cause at the time of the stop to believe the individual has "violated the traffic code[, then that] render[s] the stop reasonable under the Fourth Amendment." Id. at 819.
While the burden is on the government to establish probable cause for the stop, the standard announced in Whren grants laW enforcement broad leeway because the motives for the stop are not considered. See United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999). However, "the legal justification [for the stop] must be objectively grounded." Id. (internal quotation marks omitted). As a result, the stop will not be valid "where the supposed traffic infraction that formed the basis for a vehicular stop in fact was not a violation of state law." Id.
Indeed, several courts have held that a mistake of law as to the applicability of a statute will not provide the basis for a valid stop. See United States v. King, 244 F.3d 736, 739 (9th Cir. 2001) (indicating that when "`an officer makes a traffic stop based on a mistake of law, the stop violates the Fourth Amendment.'" (quoting United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000))); United States v. Ramirez, 115 F. Supp.2d 918, 922 (W.D. Tenn. 2000) (finding "there is no good faith exception to warrantless stops"); Hameen v. State, 541 S.E.2d 668, 669 (Ga.Ct.App. 2000) (holding that ignorance of the law is no excuse).
It is important to note there is a distinction between a mistake of law and a mistake of fact. Whren requires the officer have probable cause to believe the traffic law is being violated. However, it does not require the officer find that the law was, in fact, violated. See King, 244 F.3d at 739. In other words, if there was probable cause at the time of the stop to believe the statute was being violated, but after investigating the infraction, the officer determines there was no violation, the stop is still valid.
Furthermore, if the officer makes a mistake of law as to the applicability of a statute, but the individual's conduct, which was known at the time of the stop, violated another statute or ordinance, the stop is reasonable. See United States v. Wallace, 213 F.3d 1216, 1220 (9th Cir. 2000); Ramirez, 115 F. Supp.2d at 922-23; State v. Schiffer, 510 S.E.2d 165, 169 (N.C.Ct.App. 1999). The evaluation of whether there was probable cause at the time of the stop is an objective question. See United States v. Roy, 869 F.2d 1427, 1432-33 (11th Cir. 1989) (concluding that "the court still had the duty to objectively determine whether probable cause was present").
1. Florida Statutes Section 316.2953
In this case, Trooper Lemery noticed the Expedition had darkly tinted windows and believed it to be in violation of Florida Statutes Section 316.2953. See First Tr. at 11, 15-16. Prior to activating his lights, he noticed that a Texas tag was displayed. See Second Tr. at 12.
Florida Statutes Section 316.2953 states,
A person shall not operate any motor vehicle on any public highway, road, or street on which vehicle the side wings and side windows on either side forward of or adjacent to the operator's seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window's color, increase its reflectivity, or reduce its light transmittance, except as expressly permitted by this section. A sunscreening material is authorized for such windows if, when applied to and tested on the glass of such windows on the specific motor vehicle, the material has a total solar reflectance of visible light of not more than 25 percent as measured on the nonfilm side and a light transmittance of at least 28 percent in the visible light range. A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
However, Florida Statutes Section 316.2951 provides, "Whenever used in ss. 316.2951-316.2957, unless the context otherwise requires, . . . `Motor vehicle' means any vehicle as defined in s. 316,003, except vehicles used in farm husbandry, which is registered or required to be registered in the state."
Therefore, based on the plain and unambiguous language of these sections, an officer will not have probable cause to stop a vehicle for a violation of Section 316.2953 unless the vehicle is displaying a Florida license plate or there are other facts indicating that the car is registered or required to be registered in the State of Florida.
Trooper Lemery testified that at the time of the stop, he was not aware the tinting statute made a distinction between out-of-state vehicles and those registered in Florida. See Second Tr. at 44-45. However, as discussed above, this mistake of law will not establish probable cause for the stop. Trooper Lemery testified that: at the time of the stop he knew the following: (1) the Expedition had darkly tinted windows, (2) he "could not see the illumination of a figure of any kind," and (3) a Texas tag was displayed on the vehicle. First Tr. at 11; see Second Tr. at 12. The government did not establish any other facts which would have given the officer reason to believe the vehicle should have been registered in Florida. Therefore, he did not have probable cause to believe, based on the information he knew at the time of the stop, that Defendants were committing an infraction of Florida Statutes Section 316.2953.
In the United States' Supplemental Memorandum of Law in Response to Defendants' Motions to Suppress Evidence and Statements (Doc. # pending; Reply), the government argues as follows: "Given that dual registration is possible (as the facts of this case demonstrate), and given that Florida vehicle owners sometimes fail to register in Florida as required, it is reasonable for an officer who observes a suspected window tint violation to stop the vehicle notwithstanding that the vehicle displays out-of-state plates." Id. at 2-3. However, this argument is not convincing. The officer must have probable cause, prior to the stop of the vehicle, to believe the statute has been or is being violated. The fact that a vehicle may be registered in two states or that the owner may have failed to register the vehicle does not establish probable cause to believe a traffic infraction has been committed or is being committed. The government needs to establish additional facts.
In the Opposition, the government asserts the stop was valid because the officer ultimately learned that the vehicle was, in fact, registered in Florida. See Opposition at 3. However, this information was not known at the time of the stop. Thus, it cannot support a finding that there was probable cause to believe the statute was being violated.
The government also relies on United States v. Wallace, 213 F.3cl 1216 (9th Cir. 2000), in support of its argument that the stop was valid. In Wallace, the officer was mistaken as to the application of the state's tinting law. See id. at 1217. He thought that any tinting was a violation of the statute, but, in fact, the statute only prohibited tinting that transmitted less than 70 percent of the light. See id. At the time of the stop, the officer knew that all four windows were tinted. See Id. In addition, he stated there was a heavy tint on the windows. See Id. at 1220. The court found that, based on the facts known at the time of the stop, there was objective, probable cause to believe the statute was being violated. See Id.
This case is distinguishable from Wallace because, based on the facts known to Trooper Lemery at the time of the stop, there was not objective, probable cause to believe the statute was being violated. The facts do not establish an infraction of Section 316.2953 and, as discussed infra, Section 316.610 is not applicable to these facts. The government does not suggest any other section was violated based on the facts known at the time of the stop. Accordingly, the Court does not find Wallace applicable.
Further, the government maintains that even if the officer was mistaken as to the application of the statute, he had a good faith belief the Expedition was in violation of the statute. See Opposition at 4. There is no good faith exception in this case. Whren established that the subjective intentions of the officer, whether good or evil, are irrelevant. Thus, the government's contention the Court should consider the officer's good faith belief is not persuasive. While Trooper Lemery may have acted without an ulterior motive and based on his honest belief that the Expedition was in violation of Section 316.2953, his belief was, nonetheless, mistaken and that "mistake of law cannot form the basis for reasonable suspicion to initiate a traffic stop." King, 244 F.3d at 741.
Even if there is a good faith exception to the exclusionary rule for warrantless searches as suggested by the Fifth Circuit in Lopez-Valdez, 178 F.3d at 289, it would not be applicable to this situation. The rationale for such a finding was best explained by the Supreme Court of Illinois:
[T]o adopt the extension of the good-faith exception proposed by the State would essentially eviscerate the exclusionary rule as it is currently enforced. Police officers would be encouraged to defy the plain language of statutes as written in favor of their own interpretations in conducting searches and seizures. Such a proposal, giving the police unlimited authority to conduct searches and seizures until specifically restricted by the legislature or the courts, is fundamentally at odds with the central purpose of deterring police misconduct which underlies the exclusionary rule.People v. Madison, 520 N.E.2d 374, 380 (Ill. 1988), abrogated on other grounds by, Horton v. California, 496 U.S. 128 (1990).
2. Florida Statutes Section 316.610
In the alternative, the United States argues even if the facts known at the time of the stop do not establish probable cause to believe Section 316.2953 was violated, they do establish a violation, of Section 316.610. See Opposition at 3; see also Reply at 3, Therefore, while the officer may have mistakenly relied on Section 316.2953 to effectuate the stop, the government maintains there is objective, probable cause to believe the vehicle was in violation of Section 316.610.
Florida Statutes Section 316.610 provides, in part,
It is a violation of this chapter for any person to drive or move . . . on any highway any vehicle . . . which is in such unsafe condition as to endanger any person or property . . . or which is equipped in any manner in violation of this chapter, or for any person to do any act forbidden or fail to perform any act required under this chapter.
Subsection one further permits, "Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law . . . require the driver of the vehicle to stop and submit the vehicle to an inspection and such test: with reference thereto as may be appropriate." Fla. Stat. § 316.610(1).
Trooper Lemery testified that if he had issued Chantae Leal a citation, he would have identified Section 316.610 as the statute violated. See Second Tr. at 36. He also expressed that tint implicates the safety of a vehicle because "[a] lot of people tell me, yes, I have to roll the windows down at night because I can't see out of it." Id. at 47. He further testified "`Statute 610 . . . gives me reasonable cause to stop it, but then it also goes back to the tinted statute itself." Id. Thus, the Court must now consider whether the facts known at the time of the stop would give rise to probable cause to believe Section 316.610 was being violated. In order to find probable cause for the stop, the Court must determine whether it is a violation of Section 316.610 for a vehicle, which is registered in another state, to travel on Florida roadways with darkly tinted windows.
The government does not direct the Court to any case law that applies Section 316.610 to this situation. Instead, it asserts that "Trooper Lemery testified that he has stopped out-of-state . . . vehicles for window tint violations on many occasions. . . . [and it] is not aware of any case invalidating a traffic stop in Florida for a window tint violation because the vehicle had out-of-state plates." Reply at 3. It further states Section 316.610 allows an officer "to stop any motor vehicle traveling in Florida — regardless of its state of registration — for the purpose of conducting a safety and/or equipment check." Id.
In this case, Trooper Lemery testified the only basis for the stop was the tinted windows. See Second Tr. at 28. While he also represented the tinted windows were in violation of Section 316.610, he did not include any reference to this statute in his report, the probable cause affidavits, or on the actual written warning. See Second Tr. at 2-3, 29, 36; Government Exhibit 1. However, as discussed above, the Court is only concerned with whether there is objective, probable cause for the stop. Thus, if the officer could have stopped the vehicle because it was in violation of Section 316.610, then the stop will be deemed valid.
It would not be a reasonable interpretation of Section 316.610 to find that an out-of-state vehicle with tinted windows is in violation of that statute. In Doctor v. State, 596 So.2d 442, 446 (Fla. 1992), the Florida Supreme Court concluded "Section 316.610 . . . must be read in conjunction with those statutes which delineate the specific equipment requirements for vehicles." This requirement is consistent with the basic tenet of statutory construction that "[s]tatutes relating to the same subject matter must be read in pari materia." Major v. State, 180 So.2d 335, 337 n. 1 (Fla. 1965).
The government contends Section 316.610 should be interpreted to give officers the authority to stop out-of-state vehicles with darkly tinted windows, as tinted windows present a safety concern. See Reply at 3-4; Second Tr. at 47. However, if Section 316. 610 is given this interpretation, then it conflicts with Sections 316.2951 and 316.2953, which state that only vehicles registered in Florida or required to be registered in Florida are subject to the tinting restrictions. "`Where . . . two statutes are found to be in conflict, rules of statutory construction must be applied to reconcile . . . the conflict.'" City of Clearwater v. Acker, 755 So, 2d 597, 600 (Fla. 1999) (quoting DeBolt v. Dep't of Health Rehabilitative Servs., 427 So.2d 221, 224 (Fla.Dist.Ct.App. 1983)). Notwithstanding,
The statutory construction maxim "` expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another[,]'" establishes that when the legislature defined motor vehicle to include cars registered in Florida or required to be registered in Florida, it excluded vehicles registered in other states and those not required to be registered in Florida from that definition. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 85 (Fla. 2000) (quoting Moonlit Waters Apartments Inc. v. Cauley, 666 So.2d 898, 900 (Fla. 1996)).
In construing or interpreting the words of a statute it should be borne in mind that the courts have no function of legislation, and seek only to ascertain the will of the Legislature. The courts may not imagine an intent and bend the letter of the act to that intent. . . .State ex rel. Bie v. Swope, 30 So.2d 748, 751 (Fla. 1947) (internal quotation marks omitted).
In reconciling conflicting statutes, the Court must first try to harmonize the statutes and give effect to both provisions. See Jones v. State, 813 So.2d 22, 25 (Fla. 2002). Moreover, "[s]tatutory interpretations that render statutory provisions superfluous are, and should be, disfavored. Courts are not to presume that a given statute employs useless language." Johnson v. Feder, 485 So.2d 409, 411 (Fla. 1986) (internal quotation marks and citations omitted). In this case, the only way to give effect to all of the provisions at issue and not render the limitation in Section 316,2951(1) meaningless is to find that Section 316.610 does not provide officers with authority to stop out-of-state vehicles with tinted windows. If the legislature intended to apply the tinting restrictions to out-of-state vehicles, it would not have included the limiting language in Section 316.2951(1). The Court must abide by the intent of the legislature.
Other state legislatures have enacted tinting statutes that do not include the limitation imposed by the Florida Legislature. See, e.g., United States v. Yang, No. CR01-3060-MWB, 2002 WL 31972353, at **1, 7 (N.D. Iowa June 19, 2002) (finding there was probable cause to stop a vehicle that displayed a Texas tag for a violation of an Iowa tinting statute); Schiffer, 510 S.E.2d at 169 (concluding the North Carolina window tinting statute included an exception for vehicles registered in other states, but the windshield tinting statute did not include the same limitation). The undersigned does not express an opinion as to the constitutionality of the statutes, but merely notes other state legislatures have clearly stated their intent to regulate tinted windows on out-of-state vehicles by omitting the explicit reference the Florida Legislature included in the statute at issue. In fact, the Florida Legislature enacted a statute without the limiting language presented in Section 316.2951(1) making it a violation for a "person [to] drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, side wings, or side or rear windows of such vehicle which materially'obstructs, obscures, or impairs the driver's clear view of the highway or any intersecting highway." Fla. Stat. § 316.2004(2)(b). The government neither argued nor sufficiently established in the record that probable cause existed at the time of the stop to believe the Expedition was in violation of this statute.
There is further support for this interpretation. "[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms." McKendry v. State, 641 So.2d 45, 46 (Fla. 1994); see also Jones, 813 So.2d at 25. In addition, "the later promulgated statute should prevail as the last expression of legislative intent." McKendry, 641 So.2d at 46. Sections 316.2951 and 316.2953 are specific statutes regulating tinted windows. On the other hand, Section 316.610 is a general statute regulating unsafe vehicles on Florida roadways. While Section 316.610 may arguably regulate tinted windows, it also encompasses all other safety issues with respect to vehicles traveling on Florida roads. Thus, the specific statute should control in this case. Furthermore, Section 316.610 was enacted prior to Sections 316.2951 and 316.2953.
Based on the foregoing, the undersigned finds Section 316.610 should not be interpreted to include violations for tinted windows on out-of-state vehicles. Thus, Section 316.610 cannot be relied on to establish objective, probable cause for the stop at issue. As such, the stop was not supported by probable cause and any evidence obtained from the stop should be suppressed.
While the Court recognizes that not all evidence resulting from improper police conduct should be automatically excluded, the government does not argue how this case would fit into one of the recognized exceptions. See Moody v. State, No. SC94435, 2003 WL 151841, at *5 (Fla. Jan. 23, 2003) (per curiam)". Specifically, it does not contend that an independent source existed, that the evidence would have been inevitably discovered, or that the evidence was sufficiently attenuated from the misconduct. See Id. The government has the burden to show the admissibiiity of the evidence. See Brown v. Illinois, 422 U.S. 590, 604 (1975). In the absence of any argument to the contrary and the failure of the government to develop the record adequately for the Court to find an exception is applicable, the undersigned finds that evidence and statements resulting from the illegal stop should be suppressed.
C. Other Bases for Suppression
Having found the initial stop was not supported by probable cause, the Court need not address Defendants' other arguments for suppression. However, if the stop was otherwise deemed valid, the other bases argued in support of suppression are insufficient to justify suppressing the evidence.
The undersigned finds the detention of Defendants was not improper. At most, only fifteen minutes passed from the time the vehicle was stopped until Trooper Davis walked canine York around the Expedition. See First Tr. at 27; Second Tr. at 30-32. While Trooper Lemery did testify that he had completed his investigation of the tint violation when he put the tint meter on the window, which was before he asked Chantae Leal to step out of the vehicle, see First Tr. at 14-15; Second Tr. at 37-39, he was still completing the written warning during the time canine York was walking around the vehicle. See First Tr. at 25. In addition, the scope of the detention was not exceeded by questioning Gloria Leal on her travel plans, as the inquiry did not unreasonably prolong the detention beyond the original purpose. Therefore, the detention of Defendants was proper. See United States v. Purcell, 236 F.3d 1274, 1278-80 (11th Cir. 2001).
In addition, once arrested, Defendants were properly apprised of the Miranda rights. See Second Tr. at 96-97. After being informed of their rights, Defendants agreed to speak to the officers. See Id. at 85, 88. Such conduct evidences a waiver. See United States v. Chong, 829 F.2d 1572, 1574 (11th Cir. 1987). After each Defendant indicated a desire for the questioning to end, see Second Tr. at 87-88, 90, no further custodial interrogation transpired, except for basic booking questions.
Further, Defendants' conversation in the back of the police car was not improperly recorded. It is well-established that there is no reasonable expectation of privacy in the back of a police car. See United States v. Gilley, 43 F.3d 1440, 1441 (11th Cir. 1995) (per curiam). Finally, the search of the vehicle was lawful, because the alert by canine York, who is trained in drug detection, establishes probable cause for the search. See United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993) (per curiam).
RECOMMENDATION
Based on the foregoing, it is recommended the Motion (Doc. #32) and Motion to Suppress (Doc. #35) be GRANTED.ENTERED.