           Supreme Court of Florida
                                     ____________

                                     No. SC13-318
                                     ____________

                               STATE OF FLORIDA,
                                   Petitioner,

                                            vs.

                             KERRICK VAN TEAMER,
                                  Respondent.

                                     [July 3, 2014]

QUINCE, J.

       This case is before the Court for review of the decision of the First District

Court of Appeal in Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2013). 1 The

district court certified that its decision is in direct conflict with the decision of the

Fourth District Court of Appeal in Aders v. State, 67 So. 3d 368 (Fla. 4th DCA

2011). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As we explain, we

approve the First District’s decision and disapprove that of the Fourth District.

                     FACTS AND PROCEDURAL HISTORY


      1. The record presents some confusion regarding the Respondent’s surname.
Although his full name is “Kerrick Van Teamer,” his surname is “Teamer,” not
“Van Teamer.” This opinion refers to him and his case below accordingly.
       On June 22, 2010, an Escambia County Deputy Sheriff observed Kerrick

Teamer driving a bright green Chevrolet. Teamer, 108 So. 3d at 665. After

noticing the car, the deputy continued on his patrol, driving into one of the

neighborhoods in that area. Upon traveling back to where he had first seen

Teamer, the deputy again observed Teamer driving the same car. The deputy then

“ran” the number from Teamer’s license plate through the Florida Department of

Highway Safety and Motor Vehicles (DHSMV) database, as is customary for him

while on patrol, and learned that the vehicle was registered as a blue Chevrolet. Id.

The database did not return any information regarding the model of the vehicle.

Based only on the color inconsistency, the deputy pulled the car over to conduct a

traffic stop.

       “Upon interviewing the occupants, the deputy learned that the vehicle had

recently been painted, thus explaining the inconsistency.” Id. However, during the

stop, the deputy noticed a strong odor of marijuana emanating from the car and

decided to conduct a search of the vehicle, Teamer, and the other passenger. Id.

“Marijuana and crack cocaine were recovered from the vehicle, and about $1,100

in cash was recovered from [Teamer]. [He] was charged with trafficking in

cocaine (between 28–200 grams), possession of marijuana (less than 20 grams),

and possession of drug paraphernalia” (scales). Id.




                                         -2-
      On October 4, 2010, Teamer filed a motion to suppress the results of the

stop as products of an unlawful, warrantless search. At the hearing on the motion

to suppress, the deputy acknowledged that, in his training and experience, he had

encountered individuals who would switch license plates and he could not verify a

vehicle’s identification number without pulling over the vehicle. Id. On cross-

examination, the deputy acknowledged that the car was not reported stolen, he had

not observed any other traffic violations or suspicious or furtive behavior, he was

not “aware of any reports of stolen vehicles or swapped plates in the area,” and

“the only thing that was out of the ordinary was the inconsistency of the vehicle

color from the registration.” Id.

      The trial court denied the motion to suppress, explaining that the rationale

for the denial was that the deputy “had a legal right to conduct an investigatory

stop when a registration search of the automobile license tag reflected a different

color than the observed color of the vehicle.” The trial court found that the deputy

made the investigatory stop “because the registration was not consistent with the

color of the vehicle” and that since “the vehicle was legally stopped for

investigative purposes,” the odor of marijuana that the officer smelled during the

stop gave him probable cause to conduct a search. After a jury trial, Teamer was

convicted on all three counts as charged in the information. The trial judge

sentenced him to six years on count one and time served on the other two counts.


                                        -3-
      Teamer appealed, and the First District reversed the trial court’s denial of

Teamer’s motion to suppress, certifying conflict with the Fourth District in Aders.

Id. at 670. The First District acknowledged “that any discrepancy between a

vehicle’s plates and the registration may legitimately raise a concern that the

vehicle is stolen or the plates were swapped from another vehicle,” but found that

such concern must be weighed “against a citizen’s right under the Fourth

Amendment to travel on the roads free from governmental intrusions.” Id. at 667.

The district court cited several cases demonstrating that color discrepancy is

typically one of several factors constituting reasonable suspicion. Id. at 668. The

First District then cited two nonbinding cases2 for the principle that a color

discrepancy alone does not provide reasonable suspicion for a stop. Id. at 668-69.

Relying on those cases and other “somewhat analogous cases involving

investigations of ‘temporary tags,’ ” the district court ruled that a color discrepancy

alone did not warrant an investigatory stop. Id. at 669-70. The court found that

under the converse ruling, “every person who changes the color of [his or her]

vehicle is continually subject to an investigatory stop so long as the color

inconsistency persists.” Id. at 670. The First District stated that it was “hesitant to

license an investigatory stop” under such circumstances. Id.


       2. United States v. Uribe, No. 2:10-cr-17-JMS-CMM, 2011 WL 4538407
(S.D. Ind. Sept. 28, 2011); Commonwealth v. Mason, 78 Va. Cir. 474 (Cir. Ct.
2009), aff’d, No. 1956-09-2, 2010 WL 768721 (Va. Ct. App. Mar. 9, 2010).

                                         -4-
                                     ANALYSIS

      In reviewing a trial court’s ruling on a motion to suppress, the trial court’s

determinations of historical facts are reversed only if not supported by competent,

substantial evidence. Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). However,

the application of the law to those facts is subject to de novo review. Id. Further,

this Court is required to construe Florida’s constitutional right against

unreasonable searches and seizures “in conformity with the [Fourth] Amendment

to the United States Constitution, as interpreted by the United States Supreme

Court.” Art. I, § 12, Fla. Const.; Bernie v. State, 524 So. 2d 988, 990-91 (Fla.

1988) (“[W]e are bound to follow the interpretations of the United States Supreme

Court with relation to the [F]ourth [A]mendment . . . .”).

      The United States Supreme Court has “held that the police can stop and

briefly detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even

if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7

(1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); Popple v. State, 626 So. 2d

185, 186 (Fla. 1993) (“[A] police officer may reasonably detain a citizen

temporarily if the officer has a reasonable suspicion that a person has committed, is

committing, or is about to commit a crime.” (citing § 901.151, Fla. Stat. (1991))).

However, a “police officer must be able to point to specific and articulable facts


                                         -5-
which, taken together with rational inferences from those facts, reasonably

warrant” an investigatory stop. Terry, 392 U.S. at 21. The Supreme Court has

described reasonable suspicion as “a particularized and objective basis for

suspecting the particular person stopped of criminal activity.” United States v.

Cortez, 449 U.S. 411, 417 (1981). This standard requires “something more than an

‘inchoate and unparticularized suspicion or hunch.’ ” Sokolow, 490 U.S. at 7

(quoting Terry, 392 U.S. at 27) (internal quotation marks omitted).

      “Reasonableness, of course, depends ‘on a balance between the public

interest and the individual’s right to personal security free from arbitrary

interference by law officers.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)

(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)); State v.

Diaz, 850 So. 2d 435, 439 (Fla. 2003) (“The real test is one of reasonableness,

which involves balancing the interests of the State with those of the motorist.”).

“When a search or seizure is conducted without a warrant, the government bears

the burden of demonstrating that the search or seizure was reasonable.” Hilton v.

State, 961 So. 2d 284, 296 (Fla. 2007) (citing United States v. Johnson, 63 F.3d

242, 245 (3d Cir. 1995) (“As a general rule, the burden of proof is on the defendant

who seeks to suppress evidence. However, once the defendant has established a

basis for his motion, i.e., the search or seizure was conducted without a warrant,




                                         -6-
the burden shifts to the government to show that the search or seizure was

reasonable.” (citation omitted))).

      Reasonable suspicion must also be assessed based on “the totality of the

circumstances—the whole picture,” Cortez, 449 U.S. at 417; United States v.

Arvizu, 534 U.S. 266, 277 (2002), and “from the standpoint of an objectively

reasonable police officer,” Ornelas v. United States, 517 U.S. 690, 696 (1996);

Arvizu, 534 U.S. at 277. Thus, a police officer may draw inferences based on his

own experience. Ornelas, 517 U.S. at 700; Cortez, 449 U.S. at 418 (“[A] trained

officer draws inferences and makes deductions—inferences and deductions that

might well elude an untrained person.”). However, “the officer’s subjective

intentions are not involved in the determination of reasonableness.” Hilton, 961

So. 2d at 294; Whren v. United States, 517 U.S. 806, 813 (1996) (recognizing the

rejection of “any argument that the constitutional reasonableness of traffic stops

depends on the actual motivations of the individual officers involved”).

      “[I]nnocent behavior will frequently provide the basis” for reasonable

suspicion. Sokolow, 490 U.S. at 10; see also Illinois v. Wardlow, 528 U.S. 119,

125 (2000) (acknowledging this fact and recognizing that an officer can detain an

individual to resolve an ambiguity regarding suspicious yet lawful or innocent

conduct). “[T]he relevant inquiry is not whether particular conduct is innocent or

guilty, but the degree of suspicion that attaches to particular types of noncriminal


                                         -7-
acts.” Sokolow, 490 U.S. at 10 (internal quotation marks omitted). In the instant

case, the State concedes that “the failure to update a vehicle registration to reflect a

new color is not in specific violation of a Florida law.” Thus, what degree of

suspicion attaches to this noncriminal act?

      To warrant an investigatory stop, the law requires not just a mere suspicion

of criminal activity, but a reasonable, well-founded one. Popple, 626 So. 2d at 186

(“[A]n investigatory stop requires a well-founded, articulable suspicion of criminal

activity.”). In Terry, the stop was found appropriate because the officer “had

observed [three men] go [t]hrough a series of acts, each of them perhaps innocent

in itself, but which taken together warranted further investigation.” Terry, 392

U.S. at 22. The U.S. Supreme Court described the scenario as follows:

      There is nothing unusual in two men standing together on a street
      corner, perhaps waiting for someone. Nor is there anything suspicious
      about people in such circumstances strolling up and down the street,
      singly or in pairs. Store windows, moreover, are made to be looked
      in. But the story is quite different where, as here, two men hover
      about a street corner for an extended period of time, at the end of
      which it becomes apparent that they are not waiting for anyone or
      anything; where these men pace alternately along an identical route,
      pausing to stare in the same store window roughly 24 times; where
      each completion of this route is followed immediately by a conference
      between the two men on the corner; where they are joined in one of
      these conferences by a third man who leaves swiftly; and where the
      two men finally follow the third and rejoin him a couple of blocks
      away.

Id. at 22-23. The Supreme Court found that “[i]t would have been poor police

work indeed for an officer of 30 years’ experience in the detection of thievery from

                                          -8-
stores in this same neighborhood to have failed to investigate this behavior

further.” Id. at 23. Thus each seemingly innocent activity in Terry had a

cumulative effect of providing an officer with a reasonable suspicion.

      Conversely, in State v. Johnson, 561 So. 2d 1139, 1142 (Fla. 1990), this

Court rejected an officer’s use of a self-created drug courier profile because

“Florida law does not permit a profile based on factors that are little more than

mundane or unremarkable descriptions of everyday law-abiding activities.” We

noted that a drug courier profile in a Supreme Court case 3 was upheld “precisely

because it described unusual conduct that set the defendant apart from other

travelers and that strongly suggested concealed criminal conduct.” Id. We

invalidated the profile used in Johnson because “there was nothing at all unusual or

out of the ordinary about the conduct that” fit within the profile. Id. at 1142-43. In

so holding, we stated that individuals fitting within the officer’s profile “simply

cannot be described as an inherently ‘suspicious’ bunch.” Id. at 1143. The

innocent factors within the profile failed to create a reasonable suspicion.

      Turning to the instant case, the sole basis here for the investigatory stop is an

observation of one completely noncriminal factor, not several incidents of innocent

activity combining under a totality of the circumstances to arouse a reasonable

suspicion—as was the case in Terry. The discrepancy between the vehicle

      3. Sokolow, 490 U.S. 1.


                                         -9-
registration and the color the deputy observed does present an ambiguous situation,

and the Supreme Court has recognized that an officer can detain an individual to

resolve an ambiguity regarding suspicious yet lawful or innocent conduct.

Wardlow, 528 U.S. at 125. However, the suspicion still must be a reasonable one.

Popple, 626 So. 2d at 186 (“Mere suspicion is not enough to support a stop.”). In

this case, there simply are not enough facts to demonstrate reasonableness. Like

the factors in Johnson, the color discrepancy here is not “inherently suspicious” or

“unusual” enough or so “out of the ordinary” as to provide an officer with a

reasonable suspicion of criminal activity, especially given the fact that it is not

against the law in Florida to change the color of your vehicle without notifying the

DHSMV.

      The law allows officers to draw rational inferences, but to find reasonable

suspicion based on this single noncriminal factor would be to license investigatory

stops on nothing more than an officer’s hunch. Doing so would be akin to finding

reasonable suspicion for an officer to stop an individual for walking in a sparsely

occupied area after midnight simply because that officer testified that, in his

experience, people who walk in such areas after midnight tend to commit

robberies. Without more, this one fact may provide a “mere suspicion,” but it does




                                         - 10 -
not rise to the level of a reasonable suspicion. 4 Neither does the sole innocent

factor here—a color discrepancy—rise to such level. The deputy may have had a

suspicion, but it was not a reasonable or well-founded one, especially given the

fact that the driver of the vehicle was not engaged in any suspicious activity.

Moreover, “the government provided no evidence to tip the scales from a mere

hunch to something even approaching reasonable and articulable suspicion, despite

attempting to justify a detention based on one observed incident of completely

innocent behavior in a non-suspicious context.” United States v. Uribe, 709 F.3d

646, 652 (7th Cir. 2013).

      Reasonableness also “depends ‘on a balance between the public interest and

the individual’s right to personal security free from arbitrary interference by law

officers.’ ” Mimms, 434 U.S. at 109 (quoting Brignoni-Ponce, 422 U.S. at 878);

Diaz, 850 So. 2d at 439 (“The real test is one of reasonableness, which involves

balancing the interests of the State with those of the motorist.”). In order to

determine reasonableness, courts “must balance the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the importance of

the governmental interests alleged to justify the intrusion.” United States v. Place,

462 U.S. 696, 703 (1983); Delaware v. Prouse, 440 U.S. 648, 654 (1979) (“[T]he

      4. The State conceded as much during oral argument in this case. When
asked whether that scenario provided enough reasonable suspicion for a stop, the
prosecutor responded, “It would depend on what else they were doing . . . .”


                                        - 11 -
permissibility of a particular law enforcement practice is judged by balancing its

intrusion on the individual’s Fourth Amendment interests against its promotion of

legitimate governmental interests.”). Thus we must balance the nature and quality

of the intrusion required to stop an individual and investigate a color discrepancy

against the government’s interest in finding stolen vehicles or enforcing vehicle

registration laws. 5

       In Brignoni-Ponce, the Supreme Court invalidated a roving patrol stop by

Border Patrol agents near a closed checkpoint operation at the Mexican border.

422 U.S. at 886. In stopping the vehicle, the agents had relied on a single factor—

“the apparent Mexican ancestry of the occupants.” Id. at 885-86. As part of

balancing the public interest with the motorist’s rights, the Supreme Court outlined

as the governmental interest preventing illegal aliens from entering this country.

Id. at 878-80. However, despite the importance of that interest, the “modest”

intrusion of a brief stop, and the absence of practical alternatives for policing the

border, the Court found that the apparent Mexican heritage of the occupants did

not provide reasonable suspicion for a stop. Id. at 881, 886. The Court stated,

       5. See § 320.02(6), Fla. Stat. (2010) (“Any person who registers his or her
motor vehicle by means of false or fraudulent representations made in any
application for registration is guilty of a misdemeanor of the second degree . . . .”);
§ 320.261 (making it illegal to “knowingly attach[] to any motor vehicle” a license
plate that was not “lawfully transferred to such vehicle”); § 320.0609(2)(a)
(making it unlawful to transfer license plates to a different vehicle without
notifying DHSMV).


                                         - 12 -
“The likelihood that any given person of Mexican ancestry is an alien is high

enough to make Mexican appearance a relevant factor, but standing alone it does

not justify stopping all Mexican-Americans to ask if they are aliens.” Id. at 886-

87; cf. United States v. Martinez-Fuerte, 428 U.S. 543, 545, 557-59 (1976)

(upholding stops for brief questioning at fixed checkpoints even with no reasonable

suspicion of illegal aliens because although the need for such stops is as great as

that in Brignoni-Ponce, a checkpoint stop is much less intrusive since “the

generating of concern or even fright on the part of lawful travelers is appreciably

less”).

          Similarly, in Prouse, the Supreme Court invalidated a random vehicle stop

by roving patrol officers solely to confirm a driver’s compliance with licensure and

registration requirements. 440 U.S. at 659. The Court described the intrusion on

the motorist’s interests as follows:

          We cannot assume that the physical and psychological intrusion
          visited upon the occupants of a vehicle by a random stop to check
          documents is of any less moment than that occasioned by a stop by
          border agents on roving patrol. Both of these stops generally entail
          law enforcement officers signaling a moving automobile to pull over
          to the side of the roadway, by means of a possibly unsettling show of
          authority. Both interfere with freedom of movement, are
          inconvenient, and consume time. Both may create substantial anxiety.
          For Fourth Amendment purposes, we also see insufficient
          resemblance between sporadic and random stops of individual
          vehicles making their way through city traffic and those stops
          occasioned by roadblocks where all vehicles are brought to a halt or to
          a near halt, and all are subjected to a show of the police power of the
          community. At traffic checkpoints the motorist can see that other

                                          - 13 -
      vehicles are being stopped, he can see visible signs of the officers’
      authority, and he is much less likely to be frightened or annoyed by
      the intrusion.

Id. at 657 (internal quotation marks omitted). The Court balanced that intrusion

with the state’s interests in apprehending stolen vehicles—which the Court

characterized as indistinguishable from a “general interest in crime control”—and

promoting roadway safety. Id. at 658-59 & n.18. The Supreme Court held that

given the alternative mechanisms available for enforcing traffic and vehicle safety

regulations—the foremost of which being to act only upon observed violations—

the incremental contribution to highway safety of the random stops in that case did

not justify their intrusion on Fourth Amendment rights. Id. at 659.

      The intrusion involved in the instant case is similar to that described in

Prouse, especially considering that anyone who chooses to paint his or her vehicle

a different color could be pulled over by law enforcement every time he or she

drives it. Prouse, 440 U.S. at 662-63 (“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.”).

Furthermore, the governmental interest here is not nearly as strong as that in

Brignoni-Ponce of developing “effective measures to prevent the illegal entry of

aliens at the Mexican border,” 422 U.S. at 878-79, but is more like that in Prouse—

“ensuring that . . . licensing, registration, and vehicle inspection requirements are


                                        - 14 -
being observed,” 440 U.S. at 658. In fact, the Supreme Court described part of the

interest at stake here—the apprehension of stolen vehicles—as indistinguishable

“from the general interest in crime control.” Id. at 659 n.18.

      Even more relevant is the Supreme Court’s finding in Brignoni-Ponce that a

single factor—the apparent Mexican ancestry of the vehicle’s occupants—was not

enough to furnish a reasonable suspicion that the occupants were illegal aliens.

422 U.S. at 885-86. Likewise, the likelihood that a color discrepancy such as that

at issue here indicates a stolen vehicle may be high enough to make it a relevant

factor, but standing alone, it does not justify initiating a stop to determine if the law

has been violated. The deputy here needed more indicia of a violation to

distinguish between an illegal transfer of license plates, for example, and a legal

decision to paint one’s vehicle. Conducting an investigatory stop based on a color

discrepancy only when that discrepancy exists in conjunction with additional

factors indicating potential criminal activity still protects the government’s

interests, while also preserving a motorist’s right of freedom from arbitrary

interference by law enforcement. We find that the governmental interest in this

case is outweighed by Teamer’s constitutional rights, and the investigatory stop

was not warranted.

      “Under the exclusionary rule announced by the United States Supreme

Court, ‘the Fourth Amendment bar[s] the use of evidence secured through an


                                         - 15 -
illegal search and seizure.’ ” Hilton, 961 So. 2d at 293 (alteration in original)

(quoting Mapp v. Ohio, 367 U.S. 643, 648 (1961) (holding that the federal

exclusionary rule applies to the states as well)). “Whether the exclusionary

sanction is appropriately imposed in a particular case . . . is ‘an issue separate from

the question whether the Fourth Amendment rights of the party seeking to invoke

the rule were violated by police conduct.’ ” United States v. Leon, 468 U.S. 897,

906 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).

      The primary rationale behind the exclusionary rule is to deter law

enforcement from violating constitutional rights. Terry, 392 U.S. at 12; see also

United States v. Calandra, 414 U.S. 338, 348 (1974) (“[T]he rule is a judicially

created remedy designed to safeguard Fourth Amendment rights generally through

its deterrent effect.”). The instant case is not one in which the exclusionary rule “is

powerless to deter invasions of constitutionally guaranteed rights [because] the

police either have no interest in prosecuting or are willing to forgo successful

prosecution in the interest of serving some other goal.” Terry, 392 U.S. at 14.

Applying the exclusionary rule here would have the required deterrent effect. See,

e.g., Prouse, 440 U.S. at 651, 663 (affirming the trial court’s judgment granting the

defendant’s motion to suppress).

      Further, the State has not demonstrated that any exceptions apply. Brown v.

Illinois, 422 U.S. 590, 604 (1975) (discussing whether to apply an exception to the


                                         - 16 -
exclusionary rule and stating that “the burden of showing admissibility rests, of

course, on the prosecution”). The State argues a variation of the good faith

exception to the exclusionary rule. This exception was first found to apply

whenever a law enforcement officer conducts a search while relying, in good faith,

upon a defective search warrant. Leon, 468 U.S. at 922; Massachusetts v.

Sheppard, 468 U.S. 981, 987-89 (1984). Over time, however, the Supreme Court

extended this exception to other factual scenarios, including searches where police

acted in objectively reasonable reliance on binding judicial precedent. Davis v.

United States, 131 S. Ct. 2419, 2428 (2011). However, the rule of Davis has no

application to the present case because the Aders decision was issued on July 27,

2011—more than one year after the stop of Teamer’s vehicle. Thus Aders was not

binding precedent on which the deputy could have relied.

      Despite this fact, the State argues that the good faith exception should still

apply because the deputy here “arrived at a conclusion shared by non-binding

courts in other jurisdictions,6 and later shared by the Fourth District” in Aders.

However, there are also nonbinding courts in other jurisdictions that have arrived

at the exact opposite conclusion. United States v. Uribe, No. 2:10-cr-17-JMS-

CMM, 2011 WL 4538407 (S.D. Ind. Sept. 28, 2011); Commonwealth v. Mason,



       6. Smith v. State, 713 N.E.2d 338, 341 (Ind. Ct. App. 1999); Andrews v.
State, 658 S.E.2d 126, 127-28 (Ga. Ct. App. 2008).


                                        - 17 -
78 Va. Cir. 474 (Cir. Ct. 2009), aff’d, No. 1956-09-2, 2010 WL 768721 (Va. Ct.

App. Mar. 9, 2010). We are satisfied that the exclusionary rule will have an

appropriate deterrent effect in this case and that none of the exceptions to the rule

apply.

                                   CONCLUSION

         Based on the foregoing, we disapprove the decision of the Fourth District in

Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011), and approve the First District’s

decision in Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2013), reversing the

trial court’s judgment and sentence and ordering that Teamer be discharged.

         It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.


CANADY, J., dissenting.

         Because I conclude that the traffic stop of Kerrick Van Teamer’s vehicle

was based on a reasonable suspicion of criminal activity and that the trial court

therefore correctly denied the motion to suppress, I dissent from the majority’s

approval of the First District Court of Appeal’s decision reversing Teamer’s

judgment and sentence and ordering that he be discharged. I would quash the




                                         - 18 -
decision of the First District on review and approve the decision of the Fourth

District in Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011).

                                          I.

      “The Fourth Amendment permits brief investigative stops—such as the

traffic stop in this case—when a law enforcement officer has ‘a particularized and

objective basis for suspecting the particular person stopped of criminal activity.’ ”

Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (quoting United States v.

Cortez, 449 U.S. 411, 417-18 (1981)). This rule is rooted in Terry v. Ohio, 392

U.S. 1 (1968), where “the [Supreme] Court implicitly acknowledged the authority

of the police to make a forcible stop of a person when the officer has reasonable,

articulable suspicion that the person has been, is, or is about to be engaged in

criminal activity.” United States v. Place, 462 U.S. 696, 702 (1983).

      The Terry rule recognizes that “[t]he Fourth Amendment requires ‘some

minimal level of objective justification’ for making the stop.” United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quoting Immigration & Naturalization Serv. v.

Delgado, 466 U.S. 210, 217 (1984)). Reasonable suspicion thus requires

“something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ”

Sokolow, 490 U.S. at 7 (quoting Terry, 392 U.S. at 27). “A determination that

reasonable suspicion exists, however, need not rule out the possibility of innocent

conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002). In permitting


                                        - 19 -
detentions based on reasonable suspicion, “Terry accepts the risk that officers may

stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 126 (2000). But when a

stop lacks an objective basis, “the risk of arbitrary and abusive police practices

exceeds tolerable limits.” Brown v. Texas, 443 U.S. 47, 52 (1979). Courts making

“reasonable-suspicion determinations . . . must look at the ‘totality of the

circumstances’ of each case.” Arvizu, 534 U.S. at 273.

      The rule authorizing stops based on reasonable suspicion—which embodies

an “exception to the probable-cause requirement”—rests on the Supreme Court’s

“balancing of the competing interests to determine the reasonableness of the type

of seizure involved within the meaning of ‘the Fourth Amendment’s general

proscription against unreasonable searches and seizures.’ ” Place, 462 U.S. at 703

(quoting Terry, 392 U.S. at 20). This balancing process involves weighing “the

nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged to justify the

intrusion.” Id. “A central concern in balancing these competing considerations in

a variety of settings has been to assure that an individual’s reasonable expectation

of privacy is not subject to arbitrary invasions solely at the unfettered discretion of

officers in the field.” Brown, 443 U.S. at 51. The Supreme Court’s categorical

authorization of brief investigative detentions based on a reasonable suspicion of

criminal activity flows from the conclusion that “[w]hen the nature and extent of


                                         - 20 -
the detention are minimally intrusive of the individual’s Fourth Amendment

interests, the opposing law enforcement interests can support a seizure based on

less than probable cause.” Place, 462 U.S. at 703.

                                          II.

      Here, the officer’s suspicion was aroused by the discrepancy between the

color of the vehicle driven by Teamer and the color that was indicated in the

registration information for the vehicle associated with the license tag on Teamer’s

vehicle. Because of this discrepancy, a reasonable officer could suspect that the

license tag may have been illegally transferred from the vehicle to which it was

assigned. Although the color discrepancy was not necessarily indicative of

illegality, it constituted “a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Navarette, 134 S. Ct. at 1687

(quoting Cortez, 449 U.S. at 417-18). The color discrepancy was “something more

than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” Sokolow, 490

U.S. at 7 (quoting Terry, 392 U.S. at 27). I would therefore conclude that the

officer had the “minimal level of objective justification” necessary to conduct a

stop for the purpose of further investigating the discrepancy. Sokolow, 490 U.S. at

7 (quoting Delgado, 466 U.S. at 217).

      “It is not uncommon for members of the same court to disagree as to

whether the proper threshold for reasonable suspicion has been reached.” William


                                         - 21 -
E. Ringel, Searches & Seizures Arrests & Confessions § 11:12 (Westlaw database

updated March 2014). On the issue presented by this case, different courts have

disagreed regarding whether the color discrepancy was sufficient to establish

reasonable suspicion. Compare Aders, 67 So. 3d at 371 (holding that “[a] color

discrepancy is enough to create a reasonable suspicion in the mind of a law

enforcement officer of the violation of . . . criminal law”); United States v. Uribe,

709 F.3d 646 (7th Cir. 2013) (same); Andrews v. State, 658 S.E. 2d 126 (Ga. Ct.

App. 2008) (same); Smith v. State, 713 N.E. 2d 338 (Ind. Ct. App. 1999) (same);

with Van Teamer, 108 So. 3d 664 (Fla. 1st DCA 2013) (holding that color

discrepancy alone does not warrant an investigatory stop); United States v. Uribe,

2:10-cr-17-JMS-CMM, 2011 WL 4538407 (S.D. Ind. Sept. 28, 2011) (same);

Commonwealth v. Mason, No. 1956-09-2, 2010 WL 768721 (Va. Ct. App. Mar. 9,

2010) (same). Different views on this question are no doubt influenced by

divergent judgments regarding the likelihood that the color discrepancy had an

innocent explanation—namely, the repainting of the vehicle after it was

registered—and was not indicative of illegality. The courts in fact have no

empirical basis for reaching a conclusion about that likelihood. But a stop

predicated on such a color discrepancy unquestionably falls outside the category of

“arbitrary invasions solely at the unfettered discretion of officers in the field.”




                                         - 22 -
Brown, 443 U.S. at 51. A stop in such circumstances cannot fairly be called an

“arbitrary and abusive” police practice. Id. at 52.

      The crux of the majority’s decision in this case is its conclusion that finding

“reasonable suspicion based on this single noncriminal factor would be to license

investigatory stops on nothing more than an officer’s hunch.” Majority op. at 10.

This conclusion suggests a categorical rule that is not consistent with the

framework established in the Supreme Court’s Fourth Amendment jurisprudence.

Although the totality of the circumstances must be taken into account in every

case, that does not mean that an officer’s reliance on a “single noncriminal factor”

—such as the vehicle color discrepancy here—is the equivalent of a “hunch.” The

majority is wholly unjustified in categorizing an undeniably objective factor as a

hunch. The majority’s “effort to refine and elaborate the requirements of

‘reasonable suspicion’ in this case creates unnecessary difficulty in dealing with

one of the relatively simple concepts embodied in the Fourth Amendment.”

Sokolow, 490 U.S. at 7-8.

      The two cases on which the majority places primary reliance do not support

the majority’s line of analysis. In United States v. Brignoni-Ponce, 422 U.S. 873,

876 (1975), the Supreme Court considered “whether a roving patrol may stop a

vehicle in an area near the border and question its occupants when the only ground

for suspicion is that the occupants appear to be of Mexican ancestry.” The


                                        - 23 -
Supreme Court concluded that “Mexican appearance” “standing alone . . . does not

justify stopping all Mexican-Americans to ask if they are aliens.” Id. at 887. The

Supreme Court’s rejection of stops based purely on ethnic classification does not

support the conclusion that all stops where the officer relies on “a single

noncriminal factor” are unconstitutional. Nor does Delaware v. Prouse, 440 U.S.

648, 655 (1979), where the Supreme Court rejected Delaware’s argument “that

patrol officers be subject to no constraints in deciding which automobiles shall be

stopped for a license and registration check because the State’s interest in

discretionary spot checks as a means of ensuring the safety of its roadways

outweighs the resulting intrusion on the privacy and security of the persons

detained.” Prouse thus does not address the issue of reasonable suspicion, and it

sheds no light on whether reasonable suspicion existed in the case on review here.

                                         III.

      The officer’s stop of Teamer did not transgress the requirements of the

Fourth Amendment. The decision of the First District should be quashed, and

Teamer’s conviction and sentence should remain undisturbed.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District – Case No. 1D11-3491

      (Escambia County)

                                        - 24 -
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief,
Criminal Appeals, and Jay Kubica, Assistant Attorney General, Tallahassee,
Florida,

      for Petitioner

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public
Defender, Tallahassee, Florida,

      for Respondent




                                     - 25 -
