KERICK VAN TEAMER, v. STATE OF FLORIDA
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KERICK VAN TEAMER,
Appellant,
v.
CASE NO. 1D11-3491
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed February 12, 2013.
An appeal from the Circuit Court for Escambia County.
Michael G. Allen, Judge.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney
General, Tallahassee, for Appellee.
ON MOTION FOR REHEARING
WOLF, J.
Appellee's motion for rehearing filed on January 9, 2013, is denied. The
court’s opinion filed December 21, 2012, is withdrawn, and the following opinion
is substituted for clarification.
Appellant, Kerick Van Teamer, seeks review of the trial court’s denial of his
motion to suppress and his subsequent judgment and sentence for felony drug
trafficking. We reverse the trial court’s denial of appellant’s motion to suppress
and certify conflict with the Fourth District’s opinion Aders v. State, 67 So. 3d 368
(Fla. 4th DCA 2011). Because we reverse, it is unnecessary to reach appellant’s
other issues raised on appeal.
On June 22, 2010, at about 3:00 p.m., an Escambia County Deputy Sheriff
observed appellant driving a bright green Chevy. The deputy “ran” the license
plate tag number through the Department of Highway Safety and Motor Vehicles
(DHSMV). Upon learning that the plate number was registered to a blue Chevy,
the deputy pulled the vehicle over based only on the color inconsistency. Upon
interviewing the occupants, the deputy learned that the vehicle had recently been
painted, thus explaining the inconsistency. During the stop, however, the deputy
smelled marijuana emanating from the car and conducted a search of appellant, his
passenger, and the vehicle. Marijuana and crack cocaine were recovered from the
vehicle, and about $1,100 in cash was recovered from appellant. Appellant was
charged with trafficking in cocaine (between 28-200 grams), possession of
marijuana (less than 20 grams), and possession of drug paraphernalia, scales.
Appellant filed a dispositive motion to suppress the results of the stop as an
unconstitutional search, arguing that the color inconsistency alone was an
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insufficient basis to justify an investigatory stop.
During the hearing on the
motion, the deputy explained that the color inconsistency piqued his interest. He
acknowledged that, in his training and experience, he encountered individuals who
would switch vehicle plates, and he could not confirm whether the vehicle
identification number matched the plates without pulling over the vehicle.
On cross examination, the deputy agreed that the only thing that was out of
the ordinary was the inconsistency of the vehicle color from the registration. He
acknowledged he observed no other traffic violation, suspicious or furtive
behavior, nor was he aware of any reports of stolen vehicles or swapped plates in
the area.
The trial court denied the motion and in a later statement of proceedings
explained that “because the registration was not consistent with the color of the
vehicle,” the officer made an investigatory stop. The court determined that the
officer “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.”
Appellant was subsequently tried before a jury, convicted of the three
counts, and sentenced to six years’ imprisonment for the trafficking count and time
served for the other misdemeanor counts.
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On appeal, appellant argues the mere fact that the color of a vehicle does not
match the color indicated on motor vehicle registration records does not establish a
reasonable, articulable suspicion of criminal activity to support an investigatory
stop of a vehicle. He further argues this is particularly true in Florida where there is
no legal requirement that a vehicle owner inform the DHSMV of a change in the
color of the vehicle. The State argues the color inconsistency, despite being the
result of innocent activity, represents the potential illegal activity of making a false
application on vehicle registration, a violation of sections 320.06 and 320.061,
Florida Statutes.
Thus, the State argues this is a sufficient basis for an
investigatory stop, as determined by the Fourth District in Aders v. State, 67 So. 3d
368 (Fla. 4th DCA 2011).
The appropriate standard of review is summarized in State v. Gandy, 766 So.
2d 1234, 1235-36 (Fla. 1st DCA 2000):
A trial court's ruling on a motion to suppress comes to us clothed with
a presumption of correctness, and we must interpret the evidence and
reasonable inferences and deductions in a manner most favorable to
sustaining that ruling. Johnson v. State, 608 So.2d 4, 9 (Fla.1992),
cert. denied, 508 U.S. 919, 113 S.Ct. 2366, 124 L.Ed.2d 273 (1993).
In this case, the facts are undisputed and supported by competent
substantial evidence. See Caso v. State, 524 So.2d 422 (Fla.), cert.
denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988).
Accordingly, our review of the trial court's application of the law to
the facts is de novo. See United States v. Harris, 928 F.2d 1113, 1115–
16 (11th Cir.1991). In addition, we are constitutionally required to
interpret search and seizure issues in conformity with the Fourth
Amendment of the United States as interpreted by the United States
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Supreme Court. See Fla. Const. art. I, § 12; Perez v. State, 620 So.2d
1256 (Fla.1993); Bernie v. State, 524 So.2d 988 (Fla.1988).
The Fourth DCA summarized the law on traffic stops as follows:
The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
“Temporary detention of individuals during the stop of an automobile
by the police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons' within the meaning of this
provision.” Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996) (citations omitted). Accordingly, the
stop must be reasonable for it to comport with the Fourth Amendment.
Id. at 810.
“[T]he decision to stop an automobile is reasonable where the
police have probable cause to believe that a traffic violation has
occurred.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct.
1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106,
109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). “Probable cause exists
where the totality of the facts known to the officer at the time would
cause a reasonable person to believe that an offense has been
committed.” State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009)
(citing State v. Walker, 991 So.2d 928, 931 (Fla. 2d DCA 2008)). At
the very least, an officer must have an articulable and reasonable
suspicion that the driver violated, is violating, or is about to violate a
traffic law. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.
744, 151 L.Ed.2d 740 (2002); Prouse, 440 U.S. at 654 & n. 11, 661,
663, 99 S.Ct. 1391.
Aders, 67 So. 3d at 370 (Fla. 4th DCA 2011). In making a reasonable suspicion
inquiry, “‘the relevant inquiry is not whether particular conduct is ‘innocent’ or
‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal
acts.’” U.S. v. Sokolow, 490 U.S. 1, 10 (1989) (quoting Illinois v. Gates, 462 U.S.
213, at 243–244, n.13 (1983)). However, an investigatory stop must be predicated
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on something more than an “inchoate and unparticularized suspicion or ‘hunch.’”
Terry v. Ohio, 392 U.S. 1, 27 (1968).
As a preliminary matter, we acknowledge 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. We must,
however, weigh that level of concern against a citizen’s right under the Fourth
Amendment to travel on the roads free from governmental intrusions. See 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.”).
The question before this court, therefore, is whether an inconsistency in color alone
is a sufficient basis to support an officer’s articulable and reasonable suspicion that
a particular person is committing a crime in the absence of any other suspicious
behavior or circumstances to allow a temporary seizure of a person for an
investigatory stop.
Changing the color of a vehicle is not illegal, and the State does not require
an owner to report the change in color to the DHSMV. See Aders, 67 So. 3d at
371. The question then is what degree of suspicion attaches to this particular
noncriminal act? In Aders and the cases cited therein, a few courts have concluded
that the color inconsistency alone created enough suspicion to justify an
investigatory stop.
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In Aders, the officer testified that after running the tags and discovering a
color discrepancy, he decided to stop the vehicle. The circuit court concluded that
the officer was justified in the stop because:
[i]t is reasonable for a law enforcement officer to conclude that a
registration plate affixed to a vehicle which differs in color from the
vehicle described on the registration information from the Florida
Department of Highway Safety, Motor Vehicles Division, even if the
make and Model are the same or similar, warrants further
investigation.
Id. at 371. The Fourth District affirmed the circuit court on the basis of Smith v.
State, 713 N.E.2d 338, 341 (Ind. Ct. App. 1999) and Andrews v. State, 658 S.E.2d
126, 127-28 (Ga. Ct. App. 2008), both cases which found that a color discrepancy
in the registration was enough to create an articulable reasonable suspicion that the
license plate may have been switched from another vehicle. In Smith, however,
the vehicle matched the description of another vehicle known to be involved in
gang activity. Smith, 713 N.E.2d at 341 n.3. The Smith court also failed to
acknowledge that Indiana law also does not require an owner to report a change in
vehicle color. See U.S. v. Uribe, No. 2:10-cr-17-JMS-CMM, 2011 WL 5088646, at
*3 n.4 (S.D. Ind. Oct. 25, 2011) (declining to follow Smith based on this point). It
also appears that no other court besides Aders has relied on either Smith or
Andrews for the cited proposition.
In one unpublished opinion from Iowa, a court found that a registration color
discrepancy was sufficient to stop a motorcycle because Iowa vehicle registration
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law does require an accurate description of the vehicle. State v. Thiel, Nos. 010029, 1-486, 2001 WL 1448490 (Ct. App. Iowa Nov. 16, 2001).
Typically, where registration color discrepancy is at issue, it is one of
several factors that support a reasonable suspicion. See U.S. v. Clarke, 881 F.Supp
115 (D. Del. 1995) (color discrepancy, out-of-state plates, presence in a high crime
area, and inconsistency of driver gender combined with the officer’s knowledge
that the model was commonly stolen were enough to support an articulable and
reasonable suspicion that the driver was in violation of the law); U.S. v. Cooper,
431 Fed.Appx. 399, 402 (6th Cir. 2011) (officers had a reasonable suspicion that a
vehicle may have been stolen based on registration color discrepancy, the vehicle’s
location in an area known for car theft, and officer’s testimony that thieves will
purposely put a plate of the same make and model on a stolen vehicle); State v.
Paggett, 684 So. 2d 1072 (La. Ct. App. 1996) (speeding and color discrepancy
sufficient for reasonable suspicion of traffic regulation violation); State v.
Gonzalez, No. A05-2151, 2007 WL 46029 (Minn. Ct. App. Jan. 9, 2007) (in light
of officer’s training and experience, color discrepancy, condition of truck’s
interior, deceptive responses, and absence of owner together gave officer
reasonable suspicion of drug transportation). In U.S. v. Caro, the court disapproved
of the extent of the officer’s VIN search into the passenger compartment after
stopping the vehicle for a window tint violation, but acknowledged that the
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registration color discrepancy in addition to the driver’s inability to recall the
owner’s last name was sufficient for the officer to take appropriate steps to
ascertain the legal status of the vehicle. 248 F.3d 1240, 1246 (10th Cir. 2001). In
U.S. v. Rodgers, while reversing the district court’s denial of a suppression motion
on other grounds, the court noted that a color discrepancy coupled with a highcrime location provided a “thin basis” for a reasonable suspicion that the car was
stolen, in light of the fact that local laws did not require registration to be updated
with color changes. 656 F.3d 1023, 1027 (9th Cir. 2011).
Other than Aders, Thiel, and Andrews, our review of state and federal
caselaw reveals few other cases where the courts considered color discrepancy as
the sole factor to support a reasonable suspicion. In Uribe, a federal district court
granted a motion to suppress when the evidence on record revealed that the officer
had stopped the vehicle solely for a color discrepancy. Given the “totality of the
circumstances,” i.e., just one circumstance, there was nothing that would
reasonably lead an officer to suspect the particular vehicle may be stolen, and state
law did not require an owner to update the registration with a color change. 2011
WL 4538407 at *4. The Uribe court noted a decision from New Hampshire that
found it could “not sanction traffic stops for those citizens who simply decide to
paint their cars without some particularized suspicion of criminal wrongdoing such
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as, for example, the theft and subsequent repainting of a vehicle.” Id., quoting State
v. O’Neill, 2007 WL 5271849 (N.H. Super. Ct. 2007).
In Commonwealth v. Mason, a Virginia circuit court determined that
because color disparity alone was not unlawful, “‘without some additional indicia
of legal wrongdoing’” the facts did not provide a reasonable articulable suspicion
that the vehicle or plate may be stolen. 78 Va. Cir. 474, *2 (Cir. Ct. 2009) (quoting
Moore v. Commonwealth, 640 S.E.2d 531, 537 (Va. Ct. App. 2007) (Reinstated by
668 S.E.2d 150 (Va. 2008))). That court concluded that “[u]pholding a stop on
these facts would permit law enforcement to make a random, suspicionless stop of
any car with a color disparity on its registration. The Fourth Amendment does not
afford the police such unbridled discretion.” Id. The Virginia Court of Appeals
agreed with the circuit court that the officer’s belief that color discrepancies
sometimes indicate a stolen vehicle was no more than a hunch in the absence of
other circumstances. Commonwealth v. Mason, No. 1956-09-2, 2010 WL 768721
(Va. Ct. App. Mar. 9, 2010).
The somewhat analogous cases involving investigations of “temporary tags”
provide us some guidance as to the reasonableness of this particular stop. Several
cases have reviewed instances where officers stopped vehicles solely because the
vehicle had a temporary license plate tag. While an officer may be aware that
people driving with an apparently legal temporary tag may be violating the law by
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driving on an expired permit or even driving a stolen vehicle, the officer is required
to have a “particularized and objective basis for suspecting the particular person
stopped of criminal activity.”
U.S. v. Cortez, 449 U.S. 411, 417-18 (1981).
Otherwise the officer has only a mere inclination or hunch that a tag may be
expired or a car stolen. See Bius v. State, 563 S.E.2d 527 (Ga. Ct. App. 2002)
(stopping a car with a temporary tag solely to ascertain whether the driver is
complying with vehicle registration laws is not authorized); Berry v. State, 547
S.E.2d 664 (Ga. Ct. App. 2001) (officer had a mere inclination or hunch that any
car with a temporary tag might be stolen); People v. Hernandez, 86 Cal.Rptr.3d
105 (Cal. 2008) (An officer who sees a vehicle displaying a temporary tag may not
stop the vehicle simply because he believes that such permits are often forged or
otherwise invalid; to support a stop the officer must have a reasonable suspicion
that the particular permit is invalid) (citing U.S. v. Wilson, 205 F.3d 720 (4th Cir.
2000); State v. Childs, 495 N.W.2d 475 (Neb. 1993); State v. Aguilar, 155 P.3d
769 (N.M. Ct. App. 2007); State v. Chatton, 463 N.E.2d 1237 (Ohio 1984); State v.
Butler, 539 S.E.2d 414 (S.C. Ct. App. 2000); and State v. Lord, 723 N.W.2d 425
(Wis. 2006)).
We acknowledge there is a lack of guidance for police officers in this state’s
caselaw concerning the stopping of a vehicle for innocent behavior on the part of
the driver. In State v. Diaz, a case involving a vehicle stop based on an officer’s
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inability to read the state-issued handwritten expiration date of a temporary tag
although the tag appeared to be legally displayed, three justices would have ruled
the initial stop illegal and the author of the majority opinion expressed doubt as to
the legitimacy of the stop. 850 So. 2d 435, 437, 440 (Fla. 2003) (“[D]espite the
fact that the driver had no control over the legibility of the expiration date, we
assume for the purposes of this case that the initial stop by the deputy sheriff was
legitimate, albeit based upon a barely justifiable purpose.”).
In Florida, it is legal to repaint a vehicle without reporting the change,
creating an inconsistency between the vehicle registration and the vehicle. 1 See
Aders, 67 So. 3d at 371. While an officer may suspect that people driving a vehicle
of an inconsistent color may be violating the law by driving with a swapped tag or
even driving a stolen vehicle, the officer is still required to have a “particularized
and objective basis for suspecting the particular person stopped of criminal
activity.” Cortez, 449 U.S. at 417-18. If we accept the State’s argument, every
person who changes the color of their vehicle is continually subject to an
investigatory stop so long as the color inconsistency persists, regardless of any
other circumstances.2 The record does not contain any data regarding the
1
It is for the Legislature to determine whether inconsistent vehicle colors are
sufficiently problematic so as to require owners to report a change in vehicle color.
2
We also reject the State’s post hoc rationalization that color inconsistency
may indicate the owner made a false application on the vehicle registration in
violation of sections 320.06 and 320.061, Florida Statutes. There is nothing in the
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prevalence of repainted vehicles registered in the State, but we are hesitant to
license an investigatory stop of every person driving a vehicle with an inconsistent
color. In the absence of other suspicious behaviors or circumstances, the decision
of which inconsistent vehicles to stop would be left wholly to the discretion of the
officer. Persons driving on public roads have a right to not have “their travel and
privacy interfered with at the unbridled discretion of police officers.” Delaware v.
Prouse, 440 U.S. 648, 663 (1979).
We cannot agree with the Aders court that a color discrepancy alone
warrants an investigatory stop and, therefore, certify conflict with the Fourth
District’s opinion in Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011). The final
judgment and sentence are reversed, and we remand to the trial court for appellant
to be discharged.
REVERSED and REMANDED.
THOMAS and CLARK, JJ., CONCUR.
record to explain why an owner would make such a false application, particularly
given the more probable innocent explanation.
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