        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Appellant,

                                       v.

                           TYRONE JENNINGS,
                               Appellee.

                               No. 4D15-993

                               [April 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John Patrick Contini, Judge; L.T. Case No. 14-
005208CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellant.

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

PER CURIAM.

    The State appeals an order granting defendant/appellee’s motion to
suppress in a criminal case. In his motion, appellee contended that he
had been stopped with no well-founded suspicion of criminal activity.
There was a hearing on the motion at which four police officers testified.
The trial judge granted the motion “after carefully considering and
weighing the testimony and credibility of all of the respective witnesses.”
On this appeal, although we review legal conclusions de novo, we “defer to
the trial court’s factual findings and interpret the evidence, reasonable
inferences, and deductions derived from the evidence in a manner most
favorable to sustaining the trial court’s ruling.” Poliar v. State, 898 So. 2d
1013, 1014 (Fla. 4th DCA 2005). Deferring to the trial judge’s evaluation
of credibility, we affirm the order granting the motion to suppress.

CIKLIN, C.J., and GROSS, J., concur.
FORST, J., dissents with opinion.

FORST, J., dissenting.
   I respectfully dissent. The salient testimony from the first officer to
make contact with appellee (“the Officer”) is that he was dispatched to
respond to a robbery in the vicinity where he first spotted appellee’s
vehicle. As he followed the vehicle, he saw that the driver turned off the
vehicle’s headlights while the vehicle was still in motion on the roadway.
The vehicle then pulled into a driveway. Appellee exited the vehicle and
began to walk away. The Officer identified himself as a police officer and
told him to stop. Appellee continued to walk away, and subsequently
began to run. He was ultimately apprehended by one of the three
additional officers who had responded to a call for assistance by the
Officer. At the hearing on appellee’s motion to suppress, the Officer
testified that he personally observed the traffic offense of driving with no
headlights while the vehicle was in motion and it was dark out. Appellee
was charged with several offenses, including a traffic citation for
“headlights.”

   There was no evidence offered in contradiction to the Officer’s testimony
that appellee was driving without headlights. Nonetheless, as noted in the
majority opinion, the trial court granted appellee’s motion to suppress
physical evidence obtained after a search. The sole explanation for this
ruling was set forth orally as follows:

      Notwithstanding the doctrines and holding of Proctor
      [apparently referencing State v. Proctor, 161 So. 3d 409 (Fla.
      5th DCA 2014)], the Court having heard the evidence of the
      four involved officers and the argument of respective counsel
      for both the State of Florida and the defense, and after
      carefully considering and weighing the testimony and
      credibility of the four officers involved, I find as a matter of
      fact and law, that the State of Florida has not met it’s [sic]
      required burden of establishing the requisite probable cause
      in the arrest and search of the defendant, the initial stop as
      well and/or the search and seizure in connection therewith.

   It is possible that the trial court believed the stop was a “pretextual
stop.” In Kehoe v. State, 521 So. 2d 1094 (Fla. 1988), abrogated by Dobrin
v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla.
2004), cert. denied, 543 U.S. 957 (2004), and in State v. Daniel, 665 So. 2d
1040 (Fla. 1995), receded from by Holland v. State, 696 So. 2d 757 (Fla.
1997), the Florida Supreme Court responded to situations “[w]hen the
police realize that they lack a founded suspicion [and therefore] sometimes
attempt to justify a stop on some obscure traffic violation.” Kehoe, 521 So.
2d at 1096. The Court held in Kehoe that in such cases, “[t]he state must
show that . . . a reasonable officer would have stopped the vehicle absent

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an additional invalid purpose.” Id. at 1097. In Daniel, the Court narrowed
its holding in Kehoe, stating that “the reasonable officer test applies
exclusively where a stop is justified solely by a minor infraction, generally
those that are purely regulatory in nature and that do not address conduct
potentially harmful to other persons or property.” Daniel, 665 So. 2d at
1043.

   There would be a problem with this Kehoe/Daniel approach if that is
what the trial court relied upon. It is no longer good law. Pursuant to the
decision of the United States Supreme Court in Whren v. United States,
517 U.S. 806 (1996), even if the Officer planned on stopping appellee’s
vehicle for another reason (the Officer was responding to a BOLO in
conjunction with a robbery), “[t]he actual subjective motivation of the
individual officer involved is irrelevant and should not factor into an
ordinary probable-cause Fourth Amendment analysis.” Proctor, 161 So.
3d at 411 (citing Whren, 517 U.S. at 813). The Florida Supreme Court has
accepted that the Whren objective test overrules the Kehoe/Daniel
approach. Holland v. State, 696 So. 2d 757, 759 (Fla. 1997) (holding that
the subjective intent of the officer is no longer determinative; “[w]hen
applying the objective test, generally the only determination to be made is
whether probable cause existed for the stop in question” and that, per
Whren, “a violation of traffic law provided sufficient probable cause to
make the subsequent search and seizure reasonable”); see also 11 Fla.
Prac., DUI Handbook § 4:19 (2015-2016 ed.) (“The current test for
determining whether a stop for a traffic violation is valid simply requires a
determination of whether there is probable cause. This is the ‘could stop’
test.”).

   An observation by the Officer that the appellee’s headlights had been
turned off while the car was still moving on the road, at night, is sufficient
to satisfy the “could stop”/objective test. Granted, “‘[j]udges . . . are not
wallflowers or potted plants,’ and a trial court is not required to accept
testimony that is clearly incredible or unreliable.” O.I.C.L. v. Dep't of
Children & Families, 169 So. 3d 1244, 1251 (Fla. 4th DCA 2015) (quoting
Tagatz v. Marquette Univ., 861 F.2d 1040, 1045 (7th Cir.1988)), review
granted sub nom. O.I.C.L. v. Fla. Dep’t of Children & Families, SC15-1570,
2015 WL 6854614 (Fla. Oct. 30, 2015). In the instant case, there is
nothing in the record, in the brief decision of the trial court, or in the
similarly brief opinion of the majority, that indicates why the Officer’s
unrebutted testimony that he observed a traffic violation prior to the stop
should be deemed untrustworthy, let alone “clearly incredible or
unreliable.” Thus, I am unable to join the majority; I would instead reverse
the trial court’s grant of the appellee’s motion to suppress.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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