FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
TRAVIS RYAN LUCAS,
STATE OF FLORIDA,
On appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.
June 10, 2021
Travis Ryan Lucas appeals the denial of his motion to suppress. His appeal arises from the same traffic stop challenged on appeal by a passenger in the same vehicle who raised the same legal issues. A separate panel opinion affirmed the trial court’s decision as to that passenger in Rebecca Jane Thomas v. State of Florida, 1D19-3881 (January 20, 2021), which requires affirmance here.
MAKAR, J., concurs dubitante with opinion; OSTERHAUS, J., concurs with opinion; M.K. THOMAS, J., concurs with opinion.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
MAKAR, J., concurring dubitante.1
This is one of twin cases involving a Fourth Amendment issue. As background, Travis Ryan Lucas was driving a vehicle with a dealer tag in which Rebecca Jane Thomas was a passenger when they were detained by a police officer and later arrested on drug possession charges. The trial court denied a motion to suppress the evidence obtained from the stop, and both Lucas and Thomas simultaneously appealed, each represented by the same appellate attorney who filed identical briefs in each case, arguing the same issue: that the police officer “did not have probable cause to stop Appellant’s vehicle just because the dealer tag did not match what was assigned to the vehicle in the DMV [Department of Motor Vehicles] files.” See Rebecca Jane Thomas v. State of Florida, 1D19-3881; Travis Ryan Lucas, 1D19-3882. Closely related cases such as Thomas and Lucas may typically be consolidated for administrative convenience and judicial efficiency. They were not, so two independent and differently composed three-judge panels were assigned to separately adjudicate them, creating the potential for different outcomes if informal conferences fail to resolve differences.2
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Freedom from warrantless and unreasonable searches and seizures by governmental authorities is a bedrock constitutional liberty in both the federal and Florida constitutions. This right is tempered by, and balanced against, the legitimate and exigent demands of law enforcement officials to temporarily stop and interrogate a person whose conduct under the circumstances forms a well-founded and reasonable belief that the person has committed or is about to commit a crime. In this case, the decision to stop and detain Travis Ryan Lucas simply because the vehicle he was operating had a Florida dealer tag falls below this standard.
Shortly before midnight on a Saturday evening in Crestview, Florida (pop. 20,978), Officer Caden T. Downing—a three-year member of the sheriff’s office—pulled into a Tom Thumb3 convenience store on U.S. 90 to refuel his police vehicle. A number of cars were at the store and he, as was his personal practice, ran every license tag number he observed. One of the vehicles had a Florida “dealers tag” that came back as “unassigned” to a particular vehicle, which is the case for all dealer tags in Florida.4
Based on his view that an “unassigned” dealer tag was a criminal violation of Florida law, the officer pursued and stopped the vehicle and called in backup, including a K-9 unit, which alerted to the vehicle, resulting in the discovery of a small amount of drugs and a few syringes. Lucas entered a plea on drug possession charges but reserved the right to contest the constitutionality of the officer’s actions in detaining and searching him under the circumstances.
For an investigatory detention to be constitutionally valid, a police officer must have “a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (internal citation omitted) (emphasis added); see also § 901.151(2), Fla. Stat. (2020) (Florida’s Stop and Frisk Law, which codifies the standard for investigatory detentions). The State bears the burden of proving that the investigatory detention in this case—which was based solely on an “unassigned” dealer tag—was warranted as an exception to the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1 (1968); Popple, 626 So. 2d at 187. This burden was not met in this case.
Dealer tags in Florida are ubiquitous due to the hundreds, if not thousands, of persons and entities who operate new and used automotive dealerships in the state. Dealers may purchase as many tags as they desire, limited only by their liability insurers. Dealer tags are a common sight on the state’s roadways; here’s an exemplar:
A dealer tag looks exactly like Florida’s standard issue vehicle license tags except for the word “DEALER” in the center bottom.
The lawful purposes for which dealer tags are used are very broad. By law, a dealer tag may be used on any vehicle that is either (a) in the dealer’s inventory and for sale; or (b) being operated in connection with a dealer’s business. § 320.13(1)(a), Fla. Stat.5 The only limitations in the statute are that a dealer tag can’t be used on (a) vehicles for hire, such as taxis or those used for ride services, such as Uber® or Lyft,® (b) tow trucks or wreckers (unless they are for sale), or (c) a “vehicle used to transport another motor vehicle for the motor vehicle dealer.”6
Common examples of permissible uses of dealer tags abound. An obvious and prevalent one is the use of loaner cars, whereby a dealer allows a vehicle in its inventory to be used on a temporary basis, for instance, while a customer’s vehicle is being repaired. Such use is unlimited as to time and place and extends to wherever and whenever the customer decides to drive the vehicle, unless restricted by the dealer.
Another example is using a vehicle to provide a demonstration (e.g., a test drive, which could extend overnight). Yet another is using a vehicle to provide dealer-related services, such as when service calls are made, equipment is transported, or a vehicle is taken to auction. Plus, any vehicle used “in connection with [a] dealer’s business” is a permissible use, one that spans the wide range of activities that a dealership business might engage in on a 24/7 basis (such as allowing a mechanic to take a vehicle overnight to work on it offsite, as was the case here, or an officer or employee to use a vehicle as a perk).7 Moreover, the statute allows a dealer tag to be used on any vehicle “in inventory and for sale” without the limitation that it not be “operated in connection with” the “dealer’s business.” In other words, the statute allows any vehicle for sale in the dealer’s inventory to have a dealer tag, period.
Florida law imposes no time or place restrictions on uses of dealer tags. Stated differently, it is lawful in Florida to drive a vehicle with a dealer tag at any time of the day or night. As such, none of the permissible and lawful uses discussed above have temporal or locational restrictions required by law. While a dealer might impose a time or place restriction on the use of its dealer tag, Florida law does not.
Despite the broad legal scope of the permissible uses of dealer tags and the absence of time/place restrictions, dealers had been subject to questionable enforcement actions and complained to the Florida Department of Highway Safety and Motor Vehicles. As a result, the Department, in 2013, expressly addressed the problem of law enforcement officers taking action against lawful uses of dealer tags, issuing a memorandum to law enforcement agencies statewide.8 The memorandum’s purpose was to clarify the scope of section 320.13(1)(a) and to “clear up any confusion” and “solve” the recurring problems that dealers were experiencing due to misconceptions about the lawful uses of dealer tags. The Department made clear that the language of subsection (1)(a) “simply means that dealers may operate vehicles on the highways of Florida at any time as long as the vehicle is in inventory and for sale or while being operated in connection with such dealer’s business.” (emphasis added). The Department further stated that “Dealer license plates are not registered to any one vehicle and may be used on any vehicle in the dealer’s inventory.” (emphasis added). As the emphasized language makes clear, dealer tags may be used at any time on any vehicle in a dealer’s inventory.9
The Department’s memorandum pointed out that dealer tags in Florida are interchangeable by law and by design. Dealers typically do not have dealer tags for every vehicle in their inventory, nor does Florida law require them to do so. The utility of a dealer tag is that it can be moved from vehicle to vehicle without it being assigned in Department records to a particular vehicle. To fulfill its purpose, a dealer tag is intentionally unassigned to any one vehicle in the state database so that dealers have flexibility in their use. As such, a single dealer tag can be used on multiple vehicles throughout the course of the day, evening, or night. A dealer tag observed on a 2010 Ford F-150 at 6am might also be observed on a 2013 Jeep Wrangler at noon, a 2018 Honda Accord Hatchback at 5pm, and a 2015 BMW 3-Series at 11pm—all being lawfully used as part of a used car dealer’s inventory.
Here, the arresting officer acknowledged that he didn’t know much about dealer tags, though he admitted they could be used on loaners and for purposes of repair or test drives. His belief was that a dealer tag that is “unassigned is already criminal in nature,” thereby justifying an investigatory detention.10 He testified, and the arrest report makes clear, that the sole basis for the traffic stop in this case was “due to the tag not being assigned to the vehicle.”
But no dealer tag in Florida is assigned to a specific vehicle; a check by law enforcement on a dealer tag will always come back as “unassigned.”11 It is thereby insupportable for law enforcement to detain a vehicle with a dealer tag simply because a check of the tag comes back “unassigned.” It is legally inadequate to detain a vehicle’s operator on that basis, otherwise every vehicle in the State of Florida bearing a dealer tag would be subject to an investigatory detention at any time and any place simply because state computer records do not assign dealer tags to a specific vehicle. Just as we were “hesitant to license an investigatory stop of every person driving a vehicle with an inconsistent color,” Van Teamer v. State, 108 So. 3d 664, 670 (Fla. 1st DCA 2013), approved sub nom. State v. Teamer, 151 So. 3d 421 (Fla. 2014), we hesitate to subject every vehicle with a Florida dealer tag to an investigatory detention. An officer may be justified in making a traffic stop of a vehicle whose tag is invalid or obstructed, see, e.g., English v. State, 191 So. 3d 448 (Fla. 2016), but he may not lawfully stop and detain a vehicle simply because its dealer tag is “unassigned” in the state database.12 Because the stated basis for detaining Lucas was legally invalid, i.e., that the dealer tag on the vehicle he was driving was “unassigned,” it was error to deny Lucas’s motion to suppress.
The State attempts to use a post-hoc justification for the officer’s actions (i.e., one the officer did not rely on), pointing out that three people were in the vehicle at midnight at a convenience store (“Given the circumstances—a dealer tag attached to a vehicle at midnight at a gas station with three people in the vehicle—a reasonable officer could believe the vehicle was not ‘being operated in connection with such dealer’s business’ or that the tag did not belong on that vehicle.”). This view overlooks the statutory language, which places no time or place limitations on the use of dealer tags; it also overlooks the persuasive legal position of the Department that dealer tags may be used “at any time” and that dealer tags are unassigned and thereby an improper basis upon which to believe a crime may be afoot. Plus, three people in a vehicle with a dealer tag at midnight—engaging in no discernable criminal conduct—is too slender a reed on which to create an exception to the Fourth Amendment. To accept the State’s argument is to subject every person in a vehicle with a dealer tag to an investigatory detention based entirely on the observation of wholly lawful, if not benign, behavior. Van Teamer, 108 So. 3d at 670 (“If we accept the State’s argument, every person who changes the color of their vehicle is continually subject to an investigatory stop so long as the color inconsistency persists, regardless of any other circumstances.”). Plus, the officer based his decision to pursue and detain solely on his view that an “unassigned” dealer tag was “criminal in nature,” rendering this contention after-the-fact makeweight. See Kilburn v. State, 297 So. 3d 671, 673–74 (Fla. 1st DCA 2020) (noting that officer “expressly stated that the only reason for the seizure and search of the appellant was the presence of the handgun”).
Investigations and investigatory detentions are not coterminous; an investigation can be done without a detention, but an investigatory detention requires much more to justify a departure from the Fourth Amendment. Putting aside his mistaken view that unassigned dealer tags are inherently criminal, the police officer could have investigated the matter without immediately pulling over and seizing the vehicle and its occupants. See Florida v. Royer, 460 U.S. 491, 497 (1983) (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”). Nothing prevented him from approaching the driver or occupants and asking why the dealer tag was on the vehicle; he could have called the dealer tag’s owner (listed in the database) to inquire; or he could have surveilled the vehicle for criminally suggestive behavior. If asked about the dealer tag, Lucas—if he chose to answer13 — would have a plainly lawful reason, which was that his employer, BK Motors, a Crestview automotive dealer located a couple of miles west of the Tom Thumb on U.S. 90, had authorized him to have the vehicle and dealer tag (as he’d done on prior occasions). Lucas testified that he was an automotive mechanic and had worked for BK Motors on a part-time basis for twenty-five years. His boss at BK Motors, Mr. Kaucher,14 testified that Lucas was authorized to have the vehicle and dealer tag because Lucas was to work on the vehicle over the weekend at his friend’s garage (small dealers typically lack full-service garages, relying on others’ repair shops). He gave Lucas the parts to fix the BMW along with a copy of the insurance certificate and vehicle registration, which were in the glove compartment. Mr. Kaucher confirmed that dealer tags (he has two) are “not assigned to a particular car” but, in essence, are “assigned to all the cars in my inventory and that’s why we move them around.”
Given the palpably invalid basis for the detention in this case, it is unnecessary to rely on either this Court’s decision in Van Teamer v. State, 108 So. 3d 664, 665 (Fla. 1st DCA 2013), or the supreme court’s decision approving it in State v. Teamer, 151 So. 3d 421 (Fla. 2014). Nonetheless, both decisions support the principle that investigatory detentions cannot be based on a factor—such as a color mismatch in state records or an accurate description of a dealer tag as “unassigned”—that falls short of establishing the necessary degree of suspicion to set the Fourth Amendment aside. It bears noting that Teamer involved a discrepancy in state records that described the vehicle in question as blue when it was currently green. In contrast, no discrepancy in state records exists in this case because the dealer tag at issue, like every other in Florida, is unassigned to a vehicle; no discrepancy exists because that’s simply the way this category of tags is listed in the database. If anything, Van Teamer and Teamer make this case a more compelling basis for upholding the constitutional right against unreasonable searches and seizures as applied to motor vehicle usage.15
Moreover, the courts in Van Teamer and Teamer both relied on the United States Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648, 662–63 (1979), which “invalidated a random vehicle stop by roving patrol officers solely to confirm a driver’s compliance with licensure and registration requirements.” Teamer, 151 So. 3d at 429. Prouse makes clear that subjecting vehicles and their occupants to traffic stops simply to check on driver’s licenses and the registration of the vehicle is impermissible under the Fourth Amendment. 440 U.S. at 663. As this Court recently said in Kilburn: “No court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.” 297 So. 3d at 676. For like reasons, it is invalid to stop and detain a vehicle simply because it bears “unassigned” dealer plates. Van Teamer, 108 So. 3d at 670 (“Persons driving on public roads have a right to not have ‘their travel and privacy interfered with at the unbridled discretion of police officers.’” (citing Prouse, 440 U.S. at 663)).
The State argues that the Eleventh Circuit’s unpublished opinion16 in United States v. Garrette, 745 Fed. Appx. 124 (11th Cir. 2018), supports its position. But that’s not the case. At issue in Garrette were very different facts and a very different type of license plate, a transporter tag with only one permissible legal use (and a very distinctive appearance).
In Garrette, a police officer—suspecting possible misuse of a transporter tag—stopped a Ford Explorer in a residential neighborhood that was “a high crime area known for vehicle thefts.” Id. at 125. The officer ran the vehicle’s transporter tag and determined it was registered to a local automotive detailing business outside the neighborhood, which caused the officer to believe it was “improbable” that the “local automotive detailing business would be transporting a motor vehicle in the course of its business after midnight on a weekend night (indeed, the only open business in the area at the time of the stop was a bar).” Id. at 125–26. The officer noted that in his many years of experience he “had never seen a transporter license used in the area.” Id. at 126. Based upon this confluence of factors, the trial court and the appellate court deemed the investigatory stop lawful under the totality of the circumstances. Id.
The fact that a transporter tag has only one lawful use played a major role in Garrette. Unlike dealer tags in Florida, which have broad uses, a transporter license plate may be issued only to an “applicant who, incidental to the conduct of his or her business, engages in the transporting of motor vehicles which are not currently registered to any owner and which do not have license plates” upon the applicant’s payment of a license tax and provision of “proof of liability insurance coverage in the amount of $100,000 or more.” § 320.133(1), Fla. Stat. (2020). A transporter license plate “is valid for use on any motor vehicle in the possession of the transporter while the motor vehicle is being transported in the course of the transporter’s business.” Id. (emphasis added). As the statute makes clear, a transporter plate’s only permissible use occurs while a vehicle “is being transported in the course of the transporter’s business.” Id. In sharp contrast, dealer tags have a far wider scope of lawful uses.
Under Florida law, transporter license tags “must be in a distinctive color approved by the department and the word ‘transporter’ must appear on the face of the license plate in place of the county name.” § 320.133, Fla. Stat. Here’s an example:
An experienced police officer patrolling at midnight in a high crime area known for vehicle thefts, who sees this type of visually distinctive tag with a limited purpose on a Ford Explorer exiting an area “that is comprised primarily of private homes, with only one business, a bar called ‘400 Club,’ and no outlet or other access to any major roadway,”17 could rightfully be suspicious that the vehicle was not “being transported in the course of the transporter’s business” as the statute’s narrow limitation on use requires. The facts and circumstances of Garrette are so different from this case, involving a highly restricted license tag not at issue here, that it has minimal to no relevance.
It bears mentioning that our sibling courts in Georgia and South Carolina deem stops based on dealer tags alone to be unconstitutional. In Berry v. State, 547 S.E.2d 664 (Ga. Ct. App. 2001), an officer stopped a vehicle with a dealer “drive-out” tag to investigate whether it was stolen, resulting in the detention of passengers and a search that uncovered drugs. The court of appeals reversed, concluding that stopping cars with dealer tags on the chance they might be stolen is “an impermissible basis for a traffic stop.” Id. at 668.
If the officer’s rationale for this stop were sufficient to authorize an investigative traffic stop, a stop of any or all motor vehicles on an interstate highway would be authorized because they are often used to transport drugs. Our law is more restrictive than that. Instead, the critical issue to the validity of a traffic stop is whether the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”
Id. Because the officer had no more than a “mere inclination or hunch that any car with a drive-out tag might be stolen,” the “officer was not authorized to pull over Berry” and it was error to deny his motion to suppress. Id. at 668–69. Similarly, in State v. Butler, 539 S.E.2d 414 (S.C. Ct. App. 2000), an officer stopped a vehicle because it had a temporary dealer tag because “in his experience, cars bearing these tags could be unregistered, uninsured, or stolen.” Id. at 415. The court of appeals reversed the denial of the defendant’s motion to suppress, holding that “the mere presence of a temporary tag on the back of a car, without more, is insufficient to provide a reasonable suspicion that the driver is violating registration or insurance laws or that the driver is otherwise involved in criminal activity.” Id. at 416. It reasoned that “[r]equiring law enforcement to articulate a particularized and objective reason as to why they believed the car was unregistered, uninsured, or otherwise involved in criminal activity would alleviate [the] potential for abuse.” Id. at 417. In concluding, it said it refused to “create the suspect presumption in this state that every motorist traveling the highways with a temporary tag is guilty of driving an unregistered or uninsured car and is subject to detention until he or she can prove otherwise.” Id.; see also United States v. Wilson, 205 F.3d 720, 724 (4th Cir. 2000) (“The Fourth Amendment does not allow a policeman to stop a car just because it has temporary tags.”) (applying South Carolina law).
It also bears emphasis that the original understanding of the Fourth Amendment is that a warrant is required to justify a search or seizure, which has evolved to allow the judicial creation of narrowly drawn exceptions, one being an investigatory detention. The classic example is Terry v. Ohio, which created a limited exception to permit a weapons search if the circumstances justify it:
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
Id. at 27 (emphasis added); see also Jones v. United States, 357 U.S. 493, 499 (1958) (“The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn, and search incident to a valid arrest is among them.”) (emphasis added).
In light of the constitutional principle that exemptions are narrowly, carefully, and jealously drawn, the investigatory detention exception must likewise be narrowly, carefully, and jealously drawn, else Fourth Amendment protections become ephemeral. The “classic statement of the policy underlying the warrant requirement” is as follows:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. * * * When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.’”
Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971) (quoting Johnson v. United States, 333 U.S. 10, 13—14 (1948)) (emphasis added). Coolidge involved whether a warrant issued by an attorney general, rather than a judicial officer, was proper (answer: no), and involved an automobile search. In reviewing Fourth Amendment jurisprudence, the Court stated:
Thus the most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.’ ‘(T)he burden is on those seeking the exemption to show the need for it.’ In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won—by legal and constitutional means in England, and by revolution on this continent—a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.
Coolidge, 403 U.S. at 443 (footnotes and citations omitted). Notably, the Court in Coolidge said that the “word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Id. at 461. Likewise, that the “word [dealer on a tag] is not a talisman” that dwindles or evaporates Fourth Amendment protections, rendering the investigatory detention exception superior to important constitutional principles and the primacy of judicial review.
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In conclusion, the investigatory stop in this case was based on the faulty legal premise that an “unassigned” dealer tag is inherently criminal in nature and that stopping a vehicle with such a tag is a permissible basis to deviate from the Fourth Amendment. For this reason, the decision to immediately stop and detain the vehicle at issue jumped the constitutional guardrail requiring that Lucas’s suppression motion be granted. Disapproving an investigatory detention in this case does not threaten legitimate investigations of potential dealer tag violations, such as those specifically defined in the statute (e.g., use of dealer tag for taxi services) and those inferentially justified where criminality of a use is observable (e.g., high speed exit of vehicle from dealer lot at 3am). Instead, it is consistent with the original understanding that exceptions to the Fourth Amendment must be narrowly, carefully, and protectively drawn.
OSTERHAUS, J., concurring.
I join my colleagues in voting to affirm in accordance with this Court’s decision in Thomas v. State, 312 So. 3d 156 (Fla. 1st DCA 2021), which involved the same underlying suppression issue.
Under §§ 320.13, Florida Statutes, dealer license plates cannot be lawfully attached to a motor vehicle unless it is “in inventory and for sale, or while being operated in connection with such dealer’s business.” § 320.13(1)(a), Fla. Stat. One who attaches an unassigned plate commits a second-degree misdemeanor. § 320.261, Fla. Stat. A lawful stop occurred in this case because the officer suspected that an unassigned dealer plate had been unlawfully attached to the car that Appellant was driving. The officer’s suspicion was reasonable given the tag and the context surrounding the stop. Appellant was operating the car outside the bounds of ordinary business – it was past midnight, on a weekend, with multiple people in the car, after stopping at a convenience store, and with the registered owner’s address more than ten miles away. See Thomas, 312 So. 3d at 158. The officer’s testimony covered these points at the suppression hearing. Under these circumstances, Thomas affirmed the trial court’s ruling, concluding that the officer could lawfully allay his objectively reasonable suspicion that the dealer tag was being misused by stopping the car to check it out.
Turning to my colleague’s views, I understand, first, that it is perfectly possible that a law enforcement officer’s suspicion about unlawful dealer-tag usage might ultimately prove incorrect. And I recognize, too, that the dealer-owner in this case backed Appellant’s case by testifying that Appellant was authorized to drive the car for purposes of servicing it. But such evidence doesn’t control the Fourth Amendment analysis. Whether a dealer tag could be used lawfully after midnight, on a weekend, etc., in Florida is not the applicable constitutional test of whether reasonable suspicion existed to stop the car. Florida law looks to federal law and United States Supreme Court precedent for the appropriate legal test of search and seizure issues. See Art. I, § 12, Fla. Const.; State v. Rand, 209 So. 3d 660, 663 (Fla. 1st DCA 2017). A Justice Thomas opinion for an eight-justice majority of the United States Supreme Court recently reviewed reasonable-suspicion principles as applied in the context of a traffic stop. See Kansas v. Glover, 140 S.Ct. 1183 (2020). Glover involved whether an officer had reasonable suspicion to stop a pickup truck based solely upon who owned the vehicle, where the title-owner’s driver’s license had been revoked, without identifying who was actually driving the vehicle. See id. at 1186, 1188. Under this enforcement policy, innocent would-be drivers like spouses, children, relatives, and friends of the vehicle’s formal owner could be stopped because of who owned the vehicle, even if the owner wasn’t driving. But despite the risk of stopping innocent drivers, Glover concluded that reasonable suspicion exists to stop the vehicle based upon the status of the registered owner. Id. at 1191. Reasonable suspicion needed not to rule out the possibility that innocent drivers inevitably would be stopped under such a policy. See id. at 1188 (citing Navarette v. California, 572 U.S. 393, 403 (2014)). This decision rested in part on a principle established earlier by the Court that “the relevant inquiry [is] not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10 (1989). Officers contemplating traffic stops can rely on reasonable probabilities of guilty conduct and needn’t ultimately have their decision proven correct. See Glover, 140 S.Ct. at 1190. The Glover principle helps here because the officer confronted a car whose occupants could have been driving innocently on dealer-connected business, but where the circumstances—after midnight, on a weekend, at a convenience store, with multiple people in the car, some distance from its registered address—indicated to him that the car wasn’t being used for dealer-business activity. Under these circumstances, the officer made an objectively reasonable call to stop the car and check whether the dealer tag was being lawfully used.
Second, we cannot dismiss the totality-of-the-circumstances analysis supporting the trial court’s decision here as “mere post hoc justifications.” Courts typically evaluate the broad context confronted by law enforcement officers in analyzing Fourth Amendment cases. In fact, Thomas cited the Florida Supreme Court’s decision in State v. Teamer, 151 So. 3d 421, 426 (Fla. 2014), which underscored that “the whole picture must be taken into account.” Id. Although any one factor standing alone may not demonstrate reasonable suspicion, when multiple factors are taken together, they will often support reasonable suspicion. See Sokolow, 490 U.S. at 10 (noting that “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983))). Also, an objective reasonable-officer standard applies allowing officers “to make ‘commonsense judgments and inferences about human behavior.’” Glover, 140 S.Ct. at 1188 (quoting Illinois v. Wardlow, 528 U.S. 119, 125 (2000). When courts later review an officer’s decision, the reasonableness of making a traffic stop does not hinge on the subjective motivation of the officer involved, so long as “the circumstances, viewed objectively, justify that action.” Whren v. United States, 517 U.S. 806, 813 (1996). Here, instead of looking at the whole picture, my colleague’s opinion improperly elevates the officer’s subjective motivation in violation of Whren’s admonishment which “foreclose[s] any argument that the constitutional reasonableness of [a] traffic stop[ ] depends on the actual motivations of the individual officers involved.” Id. Even if the officer’s motivation for stopping Appellant’s car here focused on the unassigned tag and minimally acknowledged the other circumstances surrounding the traffic stop, the trial court was obligated to objectively assess “the whole picture.” Teamer, 151 So. 3d at 426. And the full factual context vindicates the trial court’s ruling here because an objective, reasonable officer could reasonably suspect the absence of a dealer-business connection when Appellant’s dealer-tagged car was stopped.
Third, even if my colleague’s view is right that dealer tags can be used for “almost any conceivable personal use” as to make § 320.13(1)’s limitations effectively unenforceable, the officer’s good faith decision to stop the car would not have required the trial judge to suppress the drug evidence. This is because the Fourth Amendment preserves probable cause—much less reasonable suspicion—in situations where legal mistakes are “objectively reasonable.” See Heien v. North Carolina, 574 U.S. 54, 66 (2014); Davis v. United States, 564 U.S. 229, 238-40 (2011) (discussing the good-faith exception to the exclusionary rule). Suppression is not an automatic consequence of a Fourth Amendment violation, but instead a “last resort,” justified only where “the deterrence benefits of suppression . . . outweigh [the] heavy costs” of ignoring reliable, trustworthy evidence bearing on guilt or innocence. See Davis, 564 U.S. at 237. This isn’t a case calling for deterrence and ignoring trustworthy evidence, because the officer’s enforcement of § 320.13(1)(a) comported with tag-usage limitations written plainly on the law’s face. And courts have never interpreted this law to allow for almost any conceivable personal use. If the officer made a mistake about the law’s enforceability, it was a reasonable mistake. See Heien, 574 U.S. at 66-68 (rejecting suppression where the officer’s error of law was reasonable because of textual ambiguities inherent in the mistakenly enforced state law).
* My colleague’s concurrence cites two letters pulled from the internet apparently issued by Directors of the Division of Motor Services at the Department of Highway Safety and Motor Vehicles in 2013 and 2019. The letters purport to interpret § 320.13(1)(a) for the purpose of tempering statewide law enforcement actions involving the dealer-tag statute but without any indication of a formal agency rulemaking process. The letters are vague and the parties didn’t cite them here or in the Thomas case. This makes it hard to know what to make of them. To the extent that the letters should be considered in this appeal—after surfacing only now and without verification or the opportunity for party inspection—I think they point us back to the statute’s text, which we can read and interpret for ourselves. See Art. V, § 21, Fla. Const. (restricting deference to agency interpretations of statutes). That said, the letters acknowledge that law enforcement has enforced the dealer-tag law for many years, both before and after the car stop took place in this case. This fact also makes the officer’s enforcement of the statute look objectively reasonable and supports the conclusion that the officer’s actions do not merit the “last resort” penalty of suppression.
Finally, Thomas considered § 320.13(1)(a) to be enforceable and supportive of the officer’s suspicion and decision to stop the car under the specific circumstances presented here. Thomas didn’t speculate further, nor do we need to do so, about the scope of § 320.13(1)(a) and other possible situations that may or may not give rise to reasonable suspicion, including dealer-tag usage in contexts involving loaner cars, overnight test drives, perk-usage by mechanics and employees to go to the movies, etc. These other contexts are not before the Court. And my concern with saying more is that “[j]udicial pronouncements which are obiter dicta in character more often serve to confound than to clarify the jurisprudence of this State.” Doherty v. Brown, 14 So. 3d 1266, 1268 (Fla. 1st DCA 2009) (quoting Cobb v. State, 511 So. 2d 698, 700 (Fla. 3d DCA 1987) (Baskin, J., specially concurring)). It also goes without saying that “[w]hile such dictum may furnish insight into the philosophical views of the judge or the court, it has no precedential value.” Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975) (first citing State ex rel. Biscayne Kennel Club v. Bd. of Bus. Reg., 276 So. 2d 823 (Fla. 1973); then citing State v. Fla. State Improvement Comm’n, 60 So. 2d 747 (Fla. 1952), superseded by constitutional amendment as stated in Boschen v. City of Clearwater, 777 So. 2d 958 (Fla. 2001); and then citing 8 Fla. Jur. Courts § 168)).
M.K. THOMAS, J., concurring.
Because I am bound by the panel decision in Thomas v. State of Florida, 1D19-3881 (January 20, 2021), I must affirm.
Gary Lee Printy of Gary Lee Printy Attorney at Law, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
1. See Harry Lee Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 461 (2005) (dubitante is “a notation expressing serious doubt about the case”); see, e.g., United States v. Jeffries, 692 F.3d 473, 483 (6th Cir. 2012) (Sutton, J., opinion dubitante) (noting that although circuit “precedent compels” affirmance, the author was “inclined to think it is not” correct, explaining why); see also Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 403 (1967) (Douglas, J., dubitante).
2. See IOP 6.5 (2020) (“Prior to requesting en banc consideration, either sua sponte or after a party request, a judge may confer with the panel(s) on the opinion(s) in question in an attempt to better understand and resolve the differences and to verify the jurisdictional basis for en banc consideration.”).
3. Tom Thumb is the name used by two convenience store chains, one founded in South Florida in 1964 and the other in Texas in 1948. The Crestview area has many convenience stores, including a number of Tom Thumbs.
4. Under Florida law, dealer tags are interchangeable on any vehicle in the dealer’s inventory. See § 320.13(1)(a), Fla. Stat. (2020).
5. Section 320.13(1)(a) provides, in relevant part, that “Any licensed motor vehicle dealer and any licensed mobile home dealer may, upon payment of the license tax imposed by s. 320.08(12), secure one or more dealer license plates, which are valid for use on motor vehicles . . . owned by the dealer to whom such plates are issued while the motor vehicles are in inventory and for sale, or while being operated in connection with such dealer’s business, but are not valid for use for hire.” § 320.13(1)(a), Fla. Stat. (2020) (emphasis added).
6. So called “transporter tags” are used for this purpose as defined in section 320.133, Florida Statutes (“Transporter license plates”). See § 320.133, Fla. Stat. (2020). An exemplar of such a tag is later in this opinion.
7. Florida law recognizes that a dealer may allow any of its officers or employees to use a vehicle in the dealer’s inventory, but relatives or business associates may not. See Rule, 12A-1.007(8)(c), Fla. Admin. Code (2020) (“When a motor vehicle dealer assigns a motor vehicle to a person other than an employee or officer (such as relatives or business associates), it will be presumed that the motor vehicle is not in inventory for sale in the regular course of business or for operation in connection with the dealer’s business.”). The extent to which such uses exist is unclear, but they would include almost any conceivable personal use, such as going to a movie, dropping off kids at school, driving late at night, and so on.
8. See Letter from Clayton Boyd Walden, Director, Division of Motorist Services, Florida Department of Highway Safety and Motor Vehicles, Aug. 1, 2013, available at https://www.flada.org/wp-content/uploads/2010/08/DHSMV-Memo_DMV-Letter-Dealer-plates-updated_2013.pdf.
9. In 2019, the Department issued a letter identical to its 2013 letter, adding that the “term ‘operating in connection with the dealer’s business’ may include, but not be limited to the demonstrating of vehicles to prospective purchasers, loaning vehicles to customers while their vehicles is (sic) being serviced (as long as no fee is charged), or promoting or advertising the vehicle to the general public.” Letter from Robert Kynoch, Director, Division of Motorist Services, Florida Department of Highway Safety and Motor Vehicles, Sept. 23, 2019, available at https://escambiataxcollector.com/wp-content/uploads/2019/11/-DealerPlates.pdf.
10. His view was that because a dealer’s tag is not assigned “to a vehicle you also don’t have vehicle insurance, and a good probability the driver does not have a valid driver’s license.” Dealers must provide proof of insurance, including automobile insurance, to be registered. § 320.27(3), Fla. Stat. (2020).
11. The dealer in this case made this point clear in his testimony (“Q. And so there is no way for somebody running the records on a tag to determine what particular car it should be attached to? A. No, that tag will not show up to a particular car.”).
12. See also State v. Marrero, 890 So. 2d 1278 (Fla. 2d DCA 2005) (investigatory stop proper where ongoing investigation and surveillance established basis to believe that body-shop owner who was dealing in stolen cars illegally used license plate assigned to another vehicle in violation of section 320.261, Florida Statutes, which makes “knowingly attach[ing]” a license plate a misdemeanor).
13.Royer, 460 U.S. at 498 (a person “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.”).
14. State records reflected that the dealer tag was bought by Betty Kaucher at an address in Holt, Florida, which is located about thirteen miles west of Crestview on U.S. 90. The record doesn’t say so, but it seems likely that the BK in BK Motors is Betty Kaucher, given that Lucas testified to working for “Fred and Betty Kaucher.”
15. Forty years ago, the United States Supreme Court in Prouse established that persons operating or traveling in motor vehicles, though subject to much governmental regulation, are entitled to a degree of constitutional protection:
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, . . . recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.
Delaware v. Prouse, 440 U.S. 648, 662–63 (1979) (footnote omitted).
16. Under 11th Circuit Rule 36-2, unpublished opinions “are not considered binding precedent, but they may be cited as persuasive authority.”
17. United States v. Garrette, No. 3:17CR022/MCR, 2017 WL 3337258, at *1 (N.D. Fla. Aug. 4, 2017).