       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                              GARY COLEY,
                                Appellee.

                              No. 4D13-1402

                            [February 25, 2015]

  Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No.
11005957CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Senior Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellee.

CONNER, J.

   The State appeals the trial court’s order granting Gary Coley’s motion
to suppress. We agree with the State that the trial court erred by treating
the officer’s view of the facts as a mistake of law and reverse.

             Factual Background and Trial Court Proceedings

   Coley was charged with possession of cocaine and cannabis after his
vehicle was stopped by an officer for an illegal window tint. Coley moved
to suppress any and all contraband seized and statements made, arguing
that there was no probable cause for the stop.

    At the hearing on Coley’s motion, the officer testified that he had eight
years of experience as a road patrol officer and has issued many citations
for illegal tints of side windows. He stated that in his experience, the tint
is illegal where the driver of the vehicle cannot be seen. The officer
correctly stated that per statutory regulation, a tint measurement of less
than 28% is illegal.1 He testified that he stopped Coley’s vehicle at 11:52
a.m. because he believed that the vehicle’s side windows had an illegal
tint. The officer explained that his belief was based upon the fact that,
even with the daylight, he could not see the driver of the vehicle through
the tint of its side windows, thus giving him probable cause to conduct the
traffic stop. After stopping the vehicle, he was then able to put a tint meter
up to the window to measure the tint, which read 11%. Because the tint
was illegal, he issued Coley a citation.

   The defense asserted that the traffic stop was illegal due to the officer’s
mistake of law because the law does not state that a tint is illegal if the
driver cannot be seen through it. The defense argued that an officer’s
mistake of law as to what constitutes a traffic violation cannot provide
justification for a traffic stop.

   The State argued there was no mistake in the law as to what constitutes
an illegal tint under the Florida Statutes. The State pointed out to the trial
court that the officer knew, prior to the stop, what was the threshold
percentage for determining whether a tint is illegal. Thus, the State argued
that in making a determination on Coley’s motion, the relevant issue was
whether the officer had probable cause to believe that the tint was illegal
at the time he conducted the stop. The State argued that there was
probable cause to believe that Coley’s vehicle had an illegal tint based on
the fact that the driver could not be seen through it and that this is why
the officer stopped the vehicle.

    The trial court granted the motion to suppress, stating:

       The Court is going to find that the police officer’s stop was
       illegal. The Court is going to find that the tint on the windows
       -- his testimony was, if he couldn’t see through it, was a
       violation of the law. The law is it has to be less than 28
       percent. His testimony is not consistent with that.

       You take in the light from the outside, you take in the vehicle,
       whatever was on the vehicle, before the tint was actually
       installed on the vehicle. I just don’t find that he met his
       requirements of probable cause by just thinking that, if I can’t
       see through it, therefore, it’s illegal.


1 Pursuant to section 316.2953, Florida Statutes (2013), the restriction as to
sunscreen material on side windows is such that “a light transmittance of at least
28 percent in the visible light range” is required. § 316.2953, Fla. Stat. (2013).

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      The Court is going to grant the motion to suppress. And I am
      going to base it on the case that just came out of the Florida
      Law Weekly, the one with the rear view mirror that also cites
      Wimberly in it.

      [STATE]: You’re finding it was a mistake of law, not as facts?

      THE COURT: It was a mistake of law.

                     Appellate Analysis and Disposition

   In reviewing an order on a motion to suppress, an appellate court
accepts the trial court’s findings of fact as true so long as they are
supported by competent, substantial evidence, but reviews the legal issues
de novo. Lindo v. State, 983 So. 2d 672, 675 (Fla. 4th DCA 2008);
Underwood v. State, 801 So. 2d 200, 202 (Fla. 4th DCA 2001).

    A traffic stop is permissible under the Fourth Amendment where an
officer has probable cause to believe that a traffic infraction has occurred.
Holland v. State, 696 So. 2d 757, 759 (Fla. 1997); Underwood, 801 So. 2d
at 202. As we have previously recognized, the probable cause standard

  does not demand any showing that such belief be correct or more
  likely true than false. A “practical, nontechnical” probability . . .
  is all that is required. . . . Finally, the evidence thus collected must
  be seen and weighed not in terms of library analysis by scholars,
  but as understood by those versed in the field of law enforcement.

State v. Neumann, 567 So. 2d 950, 952 (Fla. 4th DCA 1990) (citations
omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

    On appeal, the State asserts that the fact that the officer could not see
the driver of the vehicle through the tint of the side window in the middle
of the day gave him probable cause to believe that the vehicle had an illegal
tint, and therefore, justified the traffic stop. In a factually similar case, we
found that a patrolling officer had probable cause to stop a vehicle based
on the suspicion that the windows were illegally tinted. State v. Sarria, 97
So. 3d 282, 283-84 (Fla. 4th DCA 2012); Cf. Poliar v. State, 898 So. 2d
1013, 1014 n.2 (Fla. 4th DCA 2005) (“[The defendant] conceded at the
suppression hearing that the trooper was entitled to stop and detain him
due to the tinted windows. The windows were so heavily tinted that the
occupants could not be seen from outside the car.”). Likewise, in this case,
we conclude the officer had probable cause to stop the vehicle based on


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his observation that Coley’s side windows were so heavily tinted that he
could not see the occupant in broad daylight.

    The trial court’s reliance on Springer v. State, 125 So. 3d 271, 272 (Fla.
4th DCA 2013), is misplaced.2 In Springer, a police officer conducted a
traffic stop of the defendant’s vehicle after noticing that the vehicle was
missing a side view mirror on the driver’s side and cited him under a
statute requiring “a mirror so located as to reflect to the driver a view of
the highway for a distance of at least 200 feet to the rear of the motor
vehicle.” Id. There we explained that “[b]ecause section 316.294 requires
that a vehicle have ‘a’ mirror capable of viewing 200 feet behind the vehicle,
the absence of a single mirror on the exterior of the car neither violates the
statute nor renders the vehicle unsafe by an objectively reasonable
standard, without proof there was no other side view or rearview mirror on
the vehicle.” Id. at 274. Because the officer was mistaken about the law
and the law did not actually require the side view mirror on the driver side,
we concluded there was no lawful reason for him to conduct a traffic stop
in the first place and held that the stop was illegal. Id.

   In contrast, in this case there was no mistake in the officer’s
understanding of law. Contrary to the trial court’s review of the testimony,
the officer was not mistaken that the law required a minimum threshold
of 28% light transmittance. His belief (a tint that is too dark to allow one
to see the occupant is illegal) is not a mistake of law; rather, this belief
relates to the facts he used to conclude he was justified in making a traffic
stop.

    The trial court also mentioned State v. Wimberly, 988 So. 2d 116 (Fla.
5th DCA 2008), in its findings. Wimberly is also inapplicable to the facts
of this case. In Wimberly, the officers stopped the vehicle in which
Wimberly was a passenger because they believed “the tint was too dark,”
according to the trial court’s discussion of the testimony. Id. at 117-18.
At the suppression hearing, Wimberly presented testimony from the owner
of the shop which installed the tint that the tint was legal. Id. After finding
as a matter of fact that the tint was legal, the trial court concluded the
stop was illegal because the officers were wrong on the facts justifying the
stop. Id. at 118. The Fifth District reversed and explained that a traffic
stop based on an officer’s incorrect but reasonable assessment of the facts
does not render the stop illegal. Id. at 119. The court went on to explain

2 During the hearing on the motion to suppress, defense counsel referred to
Springer which the trial court later used to base its findings in regards to a
mistake of law. However, the trial court incorrectly asserted that Springer cites
to State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008).

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that “[i]f an officer makes a traffic stop based on a mistake of fact, the court
must determine whether the officer’s mistake of fact was reasonable.” Id.

   In this case, the evidence showed that Coley’s tint was indeed below the
statutory minimum, as the officer had suspected. As such, there was no
mistake of fact like there was in Wimberly.

    Having concluded that the trial court erred in granting Coley’s motion
to suppress, we reverse the trial court and remand for further proceedings
consistent with this opinion.

   Reversed and Remanded.

DAMOORGIAN, C.J., AND FORST, J., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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