Some people believe that a seasoned police officer can develop a “sixth sense” for picking out individuals who have outstanding warrants or who might otherwise be violating the law. The trouble is, stopping a motor vehicle on a simple “hunch” violates the 4th Amendment to the United States Constitution against unreasonable searches and seizures. Police officers find that stopping a motor vehicle can often lead to making a bust on a host of different offenses. For example, the stop of a motor vehicle could yield:
- The odor of burnt marijuana emanating from the vehicle, thus leading to drug possession charges;
- Observation of a pipe, rolling papers, or scale in plain view leading to charges for possession of paraphernalia;
- Discovery that the person’s driver’s license is suspended or expired, or that the vehicle is uninsured or improperly tagged;
- Learning that the driver or a passenger has an outstanding warrant for a new offense or a violation of probation; and
- Observing signs of impairment by alcohol or drugs that ultimately lead to an arrest for Driving Under the Influence (DUI).
However, stops based on mere speculation or intuition will typically result in the Court suppressing any evidence that was discovered by law enforcement. For the stop of a motor vehicle to be constitutional, a police officer must either:
- Possess reasonable, articulable, suspicion that a criminal act is taking place, about to take place, or has just occurred; or
- Observe a traffic violation occur in his presence.
Law enforcement has recently been given a tool by the Florida Legislature to make it easier to pull over your vehicle, despite the constitutional protections against unreasonable searches and seizures. In the past, a police officer could not pull you over for simply failing to wear a seatbelt (even if he observed it first hand). This was because the law defined the failure to wear a seatbelt as a “secondary offense.” In other words, an officer could ticket you for not wearing a seatbelt, only if you had already been pulled over on another lawful basis.
With the passage of Senate Bill 344, the failure to wear a seatbelt becomes a “primary offense” effective June 30, 2009. This means that, pursuant to Florida Statute ss. 316.614, a law enforcement officer may stop a vehicle based solely on the failure of the driver or front seat passenger to wear a seatbelt. (Note that it is also a primary offense for any person under the age of 18 not to wear a safety belt regardless of where they are seated in the vehicle.)
Although the new law will undoubtedly save lives, it is also certain that law enforcement will use it as legal justification to pull over a vehicle merely based on “instincts” or “a bad feeling.” This concept is referred to in criminal law as “pre-text” for a stop. Courts used to wisely recognize that an officer could give one reason for a traffic stop that may have a lawful basis, even though the real reason for the stop lacked reasonable suspicion. Such “pre-textual stops” were not allowed by Florida Courts and resulted in the evidence flowing from the stop being thrown out. However, the U.S. Supreme Court has ruled that regardless of the real reason for the traffic stop, there is no “pre-text” as long as there is an “objectively legal basis” why an officer could have pulled the car over.
The failure to use a seatbelt in Florida is now a primary offense and therefore an objectively legal basis to lawfully stop a motor vehicle.
Whereas in the past, the following scenarios would have been recognized as an unlawful stop, the new law will give law enforcement the unbridled power to stop the vehicle. For example:
- A white person driving through a predominately black neighborhood without a seatbelt;
- A black person driving through a predominately white neighborhood without a seatbelt;
- An individual leaving a bar at 2:00 AM, whose passenger is not wearing a seatbelt, even though the vehicle is operated in a perfectly lawful manner;
- A person leaving a suspected crack house who is not wearing a seatbelt; or
- A young person with long hair who is not wearing a seatbelt or a person operating a vehicle with Deadhead stickers or pro-drug decals (i.e., a marijuana leaf or Bob Marley) on the back of their vehicle who is not wearing their seatbelt.
It is not unreasonable to conclude that a stop under these circumstances will lead to more than just a citation for “No Seatbelt.” Whenever possible, law enforcement will use the opportunity to carefully check the identity and warrant status of all occupants, examine the legality of the driver’s license, registration, and insurance, make careful observations of the driver’s sobriety, investigate any immigration and naturalization issues, scan for any contraband in “plain view” and ultimately, conduct a search of the vehicle.
In the second half of 2009, look for simple seatbelt violations to result in an increased number of arrests for a variety of criminal charges.
If you find yourself charged with a criminal offense that arose from a questionable traffic stop in St. Petersburg or Clearwater, we are Pinellas County defense attorneys who can help. We can examine the legality of the stop, as well as other defenses and strategies that may better your situation. Call our office for a free consultation to discuss all of your possible options.
The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702
Visit our extensive Criminal Defense Website at: www.defensehelp.com
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