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.
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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.