# Third District Court of Appeal

State of Florida

Opinion filed May 9, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-564

Lower Tribunal No. 15-18797

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### The State of Florida,

Appellant,

vs.



### Marcelo Pena,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Diane Ward,

Judge.

Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant

Attorney General, for appellant.

Gonzalez & Herrera, P.A., and Manuel F. Herrera, Jr. and Dennis Gonzalez,

Jr., for appellee.

Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

LUCK, J.

For license plates in Florida in 2015, “all letters, numerals, printing, writing,

and other identification marks upon the plates regarding the word ‘Florida,’ theregistration decal, and the alphanumeric designation shall be clear and distinct and

free from defacement, mutilation, grease, and other obscuring matter, so that they

will be plainly visible and legible at all times 100 feet from the rear or front.” §

316.605(1), Fla. Stat. (2015). The trial court found that the stop of defendant

Marcelo Pena’s car based on the tag-obstruction statute was illegal, and suppressed

his confession and the search of his car following the stop. We disagree that the

stop was illegal, and reverse, because the undisputed evidence was that Pena’s tag

had a frame that obscured the word “Florida” at the top of this plate, violating the

clear language of section 316.605(1).

Factual Background and Procedural History

The facts, found by the trial court, are not in dispute:

The State presented testimony from Officer Carl Sanabria of the

Miami-Dade Police Department. The officer testified that he was

working crime suppression in the Hammocks area in plain clothes in

an unmarked police vehicle when he observed the Defendant’s vehicle

in traffic. The Defendant was not the subject of an investigation at

that time. The officer observed that the rear license plate on the

Defendant’s car had a metal frame which obscured the words

“MyFlorida.com” from the top portion of the license plate and

“Sunshine State” from the bottom portion. A photograph of the

license plate was introduced into evidence by the State which showed

a frame that is not unlike many frames used by Florida drivers and

provided by auto dealers. Officer Sanabria acknowledged that this

frame did not obscure the identification number or decal number on

the license plate and was clearly visible at 100 feet. Believing that

this frame constituted a violation of Florida law, he stopped the

Defendant and issued him a citation. He further testified that he

smelled the order of marijuana from the car as he approached it,

however no marijuana was ever found. Upon learning that the

2Defendant’s license was suspended, he arrested the Defendant for

driving while license suspended, in violation of § 322.34(2), Florida

Statutes. Officer Sanabria testified that he searched the Defendant’s

car incident to his arrest and because he smelled marijuana. He

discovered a plastic bag containing alprazolam pills. The Defendant

was charged with Possession with Intent to Sell, Manufacture or

Deliver a Controlled Substance, in violation of § 893.13(1)(A)(1),

Florida Statutes.

Pena moved to suppress the statements he made, and the evidence found in his car,

following the traffic stop because the stop based on the tag-obstruction statute was

illegal.

The trial court agreed that the traffic stop was illegal, and granted Pena’s

suppression motion. The trial court concluded it was bound by the holding of State

v. St. Jean

, 697 So. 2d 956 (Fla. 5th DCA 1997), which the trial court described

this way: “where a county name on a license plate was obscured by a license plate

frame, this was not sufficient to show that the defendant had committed a traffic

violation, and thus the police did not have a reasonable suspicion to stop the

defendant’s car and evidence seized pursuant to that stop was suppressed.” The

trial court analogized the obscured county name in St. Jean to the obscured

“MyFlorida.com” and “Sunshine State” in this case, and found that “ St. Jean

specifically held that under circumstances presented in this case the police did not

have a reasonable suspicion to stop the vehicle.” Because St. Jean had not been

overruled by the Florida Supreme Court, “and in the absence of interdistrict

3conflict,” the trial court concluded it was bound by the district court’s decision in

St. Jean

.

The state appeals the trial court’s order granting Pena’s suppression motion.

See Fla. R. App. P. 9.140(c)(1)(B) (“The state may appeal an order

. . . suppressing

before trial confessions, admissions, or evidence obtained by search and seizure

. .

. .”)

Standard of Review

“We apply a mixed standard of review to an appeal of an order on a motion

to suppress. We must ‘defer to the trial court’s factual findings so long as the

findings are supported by competent, substantial evidence, and review de novo the

legal question

. . . .’” Cole v. State

, 190 So. 3d 185, 188 (Fla. 3d DCA 2016)

(omission in original) (quoting State v. Hankerson

, 65 So. 3d 502, 506 (Fla.

2011)).

Discussion

The state contends that St. Jean did not compel that Pena’s suppression

motion be granted. We agree that St. Jean is inapplicable here because the

decision was based on an older version of the statute that did not include critical

language about the word “Florida” on state license plates.

In St. Jean

, the law enforcement officer “stopped the defendant’s car because

he had observed the tag on the vehicle was obscured by a[n] ornament around the

4perimeter of the tag making the county name not visible.” St. Jean

, 697 So. 2d at

956 (quotation omitted). “A subsequent search of the trunk of the vehicle

uncovered a quantity of cocaine.” Id. The defendant moved to suppress the

cocaine, “arguing that the stop of his vehicle was illegal because it [was] not a

traffic violation to obscure the name of the county on the tag.” Id. The trial court

granted the suppression motion, “concluding that the stop was illegal because there

was no reasonable suspicion that a traffic violation had occurred.” Id.

The fifth district affirmed, quoting the 1995 version of the tag-obstruction

statute:

every vehicle on the state roadways shall at all times display the

license plate assigned to it by the state:

with all letters, numerals, printing, writing, and other

identification marks upon the plates clear and distinct and

free from defacement, mutilation, grease, and other

obscuring matter, so that they will be plainly visible and

legible at all times 100 feet from the rear or front.

Id. at 957 (quoting § 316.605(1), Fla. Stat. (1995)). “In construing the statute,” the

appellate court said, “the trial court concluded that section 316.605(1) does not

require the county name be ‘plainly visible’ because it is not an essential

‘identification mark’ on the state’s license plate.” Id. The fifth district “agree[d]

that in using the term, ‘identification mark’ as applied to state license plates in

section 316.605(1), the legislature did not intend to include the name of the state

5and county at the top and bottom of the plate that identify the name of the state or

county .” Id. (emphasis added).

While we are less sure than St. Jean about the legislature’s intent in 1995, it

doesn’t matter here because in 2005 the legislature made its intent clear when it

amended section 316.605(1) to define what it meant by “other identification

marks.” The 2005 amendment clarified that the “other identification marks” in

section 316.605(1) were those on the license plate “regarding the word ‘Florida,’

the registration decal, and the alphanumeric designation,” Ch. 05-164, § 39, at

1638-39, Laws of Fla., so that by the time Pena was arrested, the tag-obstruction

statute read:

Every vehicle, at all times while driven, stopped, or parked upon any

highways, roads, or streets of this state, shall

. . . display the license

plate

. . . assigned to it by the state

. . ., and all letters, numerals,

printing, writing, and other identification marks upon the plates

regarding the word “Florida,” the registration decal, and the

alphanumeric designation shall be clear and distinct and free from

defacement, mutilation, grease, and other obscuring matter, so that

they will be plainly visible and legible at all times 100 feet from the

rear or front.

§ 316.605(1), Fla. Stat. (2015) (emphasis added). 1

1 The legislature, effective January 1, 2016, amended section 316.605(1) again to

remove “other identification marks upon the plates regarding the word ‘Florida’”

from the statute. Ch. 14-216, § 14, at 2787, Laws of Fla. Of course, the probable

cause determination is made based on the facts and law at the time of the arrest, see

Hutton v. Strickland

, 919 F.2d 1531, 1539 (11th Cir. 1990) (“Probable cause exists

when the facts and circumstances at the time of arrest would cause a prudent or

reasonably cautious person to believe that the accused committed the offense.”);

Miami-Dade Cty. v. Asad

, 78 So. 3d 660, 668 (Fla. 3d DCA 2012) (“Probable

6Here, the suppression hearing evidence was undisputed that the word

“Florida” was obscured by the frame on Pena’s tag. The word “Florida” on Pena’s

tag was not clear and distinct and free from obscuring matter. In 2015, unlike the

1997 version of section 316.605(1) in St. Jean

, obscuring of the word “Florida”

violated the tag-obstruction statute.

Conclusion

We share the fifth district and the trial court’s concern that license plate rims

and frames are “a common practice of long-standing among the citizens of our

state”; “are frequently supplied by car dealers”; and “many otherwise law abiding

citizens install them specifically to show allegiance to a club, fraternity, college or

sports team or, as a means of other self-expression.” St. Jean

, 697 So. 2d at 957.

But the legislature gets to make the laws that govern our public roads and

highways, see Green v. Pederson

, 99 So. 2d 292, 296 (Fla. 1957) (“The

Legislature, under its police power to protect the public from dangerous

instrumentalities using the highways, has imposed rigid restraints, regulations, and

restrictions upon the use of motor vehicles.” (quotation omitted)), and it has done

so clearly and unambiguously by prohibiting the obscuring of the word “Florida”

on state license plates. See English v. State

, 191 So. 3d 448, 449 (Fla. 2016) (“We

cause is evaluated from the viewpoint of a prudent cautious police officer on the

scene at the time of the arrest.” (quotation omitted)), so we only look to the 2015

version of section 316.605(1) for purposes of determining whether Detective

Sanabria’s stop of Pena’s car was lawful.

7conclude that the plain language of section 316.605(1) is clear and unambiguous

. .

. .”).

Because Pena’s tag frame obscured the word “Florida” at the top of the

plate, he violated the 2015 version of section 316.605(1) and Detective Sanabria

had probable cause to stop Pena’s car. Pena’s confession and the search of his car

that followed were not tainted by an illegal stop. We, therefore, reverse the trial

court’s order granting Pena’s motion to suppress, and remand for further

proceedings.

Reversed and remanded for further proceedings.

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