Opinion
Case No. 2D02-5346.
Opinion filed June 18, 2004.
Appeal from the Circuit Court for Pinellas County, Mark I. Shames, Judge.
James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
Tristan Hilton pleaded no contest to possession of marijuana after the circuit court denied his dispositive motion to suppress the drugs. Police officers discovered the marijuana after they stopped Hilton's car because it had a cracked windshield. We conclude that under the circumstances of this case the officers had no authority to stop the car.
At the suppression hearing, the officers testified that the crack was about seven inches long. It was in the upper corner of the windshield, on the passenger side, and primarily within the tinted area at the top. The officers said they intended to issue Hilton a traffic citation. But the Florida statutes do not specifically prohibit driving with a cracked windshield. Section 316.2952, Florida Statutes (2001), requires that cars be equipped with a windshield. While that section mandates that windshield wipers be in working order, it says nothing about cracks. Another statute, section 316.610, makes it a traffic violation to drive a car that either "is in such unsafe condition as to endanger any person or property" or "does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter." Because section 316.2952 merely requires a car to have a windshield, but does not contain requirements for the "proper condition" of the windshield, driving with a cracked windshield would be a traffic violation only if it violated the "unsafe condition" portion of section 316.610.
Certainly, a windshield crack would be an unsafe condition if it impeded a driver's ability to see the road or if it was so large that the windshield was likely to break. In such circumstances law enforcement would be justified in stopping the driver for the violation. See, e.g., State v. Savino, 686 So.2d 811 (Fla. 4th DCA 1997) (Warner, J., dissenting) (stating that officers likely would have authority under Whren v. United States, 517 U.S. 806 (1996), to stop a car when it would be difficult for the driver to see through a crack in the windshield and that condition could present a hazard to other cars on the road). Here, however, the evidence did not show that the crack in Hilton's windshield blocked the driver's view or otherwise placed the car in such unsafe condition as to endanger any person or property.
We recognize, as does Judge Whatley in his dissent, that inSmith v. State, 735 So.2d 570, 571-72 (Fla. 2d DCA 1999), we held that stopping a car for a cracked windshield was justified, citing Whren. See also Coleman v. State, 723 So.2d 387 (Fla. 2d DCA 1999) (noting that the defendant conceded the stop for a cracked windshield was proper, but not discussing the extent of the crack). But, just as we do not hold that no cracked windshield can be a traffic violation, neither do Smith or the other cases cited in the dissent hold that every cracked windshield violates the law.
Whren held that a police officer's decision to stop a car is reasonable if the officer has probable cause to believe that a traffic violation has occurred, regardless of the officer's actual motivations for the stop. 517 U.S. at 813. But in rejecting the so-called "pretextual" stop, the Whren Court specifically distinguished Delaware v. Prouse, 440 U.S. 648, 661 (1979), in which an officer stopped a car at random without probable cause or reasonable suspicion to believe any traffic laws were being violated. 517 U.S. at 817-18. Prouse held that a driver's Fourth and Fourteenth Amendment rights to be free from seizure on public highways outweighed a State's interest in discretionary spot checks as a means of ensuring the safety of its roadways. 440 U.S. at 661.
We do not know whether the officers had any other motive for stopping Hilton, although one of them said he knew Hilton from his days in community policing. In any event, the facts here, like those in Prouse, do not establish that the officers had either probable cause or a reasonable suspicion to believe Hilton was violating the Florida traffic code. Therefore, the stop was illegal, and the evidence discovered as a result of it should have been suppressed. See Moody v. State, 842 So.2d 754, 760 (Fla. 2003).
We reverse Hilton's conviction and remand with directions to discharge him.
FULMER, J., Concurs.
WHATLEY, J., Dissents with opinion.
I respectfully dissent.
There is both a statutory and case law basis to support the trial court's denial of Tristan Hilton's motion to suppress. The traffic stop in question was not random. The law enforcement officers were stopped in their vehicle as Hilton drove by them. The crack in the windshield was clearly visible, and the traffic stop was made.
Florida case law is clear that a cracked windshield is a violation of Florida law. The majority opinion notes, but in my view does not distinguish, Smith v. State, 735 So.2d 570 (Fla. 2d DCA 1999). The Smith court states: "The vehicle in which Mr. Smith was riding was stopped for having a cracked windshield, a violation of Florida law." Our sister court, in the Fifth District, has reached the same premise in Thomas v. State, 644 So.2d 597, 597 (Fla. 5th DCA 1994) (footnote omitted), stating: "Thomas was stopped for driving a vehicle with a cracked windshield, a non-criminal traffic infraction, and was given a citation." The location of the crack on a windshield does not alter the law or its import. The Thomas court, in reaching the above holding, even cited section 316.610.
Section 316.610 has a number of provisions on point, the most pertinent of which is subsection (1):
Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, 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.
§ 316.610(1), Fla. Stat. (2001). In the present case, the officers had reasonable cause to believe that the vehicle's equipment, its windshield, was not in proper repair. Jones v. State, 800 So.2d 351, 353 (Fla. 4th DCA 2001), confirmed that a cracked windshield is an equipment violation.
Here, once this valid traffic stop was effectuated, a gun was observed in plain view, and the resulting search produced more than forty bags of marijuana.
I would affirm the trial court's denial of Hilton's motion to suppress.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED