FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Chet A.
Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa, for Appellant.
L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant
Public Defender, Bartow, for Appellee.
circuit court granted James Battle's dispositive pretrial
motion to suppress in two related cases. Because the vehicle
Mr. Battle was driving had indeed been parked illegally, the
stop and search of his vehicle was valid, and we are
compelled to reverse the circuit court's ruling.
facts underlying the State's appeal come to us following
a fairly succinct suppression hearing. Hillsborough County
Sheriff's Deputy Frederick Mezzatesta was looking for a
suspect in an unrelated criminal investigation when he
observed Mr. Battle lounging around a parked vehicle near an
apartment building in Tampa. The car was, as Mr. Battle
acknowledged in his motion to suppress, "parked facing
east on the westbound side of the street"; in other
words, it was parked on the wrong side of the
road. Deputy Mezzatesta testified that he
observed Mr. Battle handling a shotgun in the presence of
individuals whom the deputy happened to know were convicted
felons (none of these felons actually handled the shotgun,
apparently). Deputy Mezzatesta did not know who Mr. Battle
was or anything else about him, but he saw Mr. Battle place
the shotgun into the car's trunk and get into the
driver's seat of the illegally parked car. The deputy
then called in marked units.
Sarah Ernstes was one of the law enforcement officers who
responded to Deputy Mezzatesta's call. She testified that
Deputy Mezzatesta informed her that an individual of Mr.
Battle's description had displayed a weapon to two known,
convicted felons. When Deputy Ernstes arrived at the scene,
she said that Mr. Battle's car was still parked on the
wrong side of the road. After observing Mr. Battle pull out
and perform a U-turn to get into the correct flow of traffic,
Deputy Ernstes proceeded to conduct a stop of Mr.
Battle's car at gunpoint. When asked why she conducted
such a stop, she replied that it was because of the parking
infraction. Through a computer check, it was discovered that
Mr. Battle was, himself, a convicted felon. The car was
searched and the shotgun was recovered, as was a clear baggie
of white powder that tested positive for the presence of
Battle was charged in these cases with possession of a
firearm by a convicted felon and possession of cocaine. He
moved to suppress the physical evidence obtained as a result
of the search, arguing that the stop of the vehicle he was
driving was unlawful. As Mr. Battle argued, there is no crime
against peacefully showing other people-even felons-a shotgun
in the manner cursorily described by Officer Mezzatesta:
"he walked back to the trunk, opened it, pulled out a
shotgun, turned toward the three [felons]. [I]t looked like .
. . he was showing it to them. He was kind of tilting it,
doing that type of stuff. He had it maybe less than a minute.
He then put it back in the trunk." Cf. Wright v.
State, 19 So.3d 277, 294 (Fla. 2009) ("[M]ere
possession of a firearm by a non-felon is not a
crime."). Thus, he contended, Deputy Mezzatesta's
observations of his nonthreatening display of the firearm
could not have constituted a lawful basis for the traffic
stop that led to the subsequent discovery of his being a
felon in possession of the firearm.
circuit court agreed. In its amended order granting Mr.
Battle's motion to suppress, the court concluded that Mr.
Battle's mere handling of a shotgun in the presence of
others was not, in itself, probable cause to justify the
subsequent traffic stop. The circuit court was apparently
troubled by what it described as "conflicting"
testimony on the part of Deputy Ernstes, who conducted the
stop. As we read the court's ruling on this point, the
circuit court judge appeared to either: (1) disbelieve the
deputy's testimony that the car had been illegally
parked, or (2) accept the testimony that the car was parked
on the wrong side of the road but reject the deputy's
stated basis-the parking violation-as the motivating reason
for why she initiated the traffic stop. As we will explain,
the ruling was erroneous under either reading.
reviewing a trial court's ruling on a motion to suppress,
the trial court's factual findings must be affirmed if
supported by competent, substantial evidence, while the trial
court's application of the law to those facts is reviewed
de novo." Hicks v. State, 929 So.2d 13, 15
(Fla. 2d DCA 2006) (quoting State v. D.D.D., 908
So.2d 1180, 1181 (Fla. 2d DCA 2005)). On appeal, such a
ruling will be upheld if there is any theory or principle of
law in the record which would support the ruling, State
v. Adderly, 809 So.2d 75, 77 n.2 (Fla. 4th DCA 2002)
(Taylor, J., dissenting) (citing Applegate v. Barnett
Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)),
but only "so long as [the theory] is consistent with the
facts on which the decision was based, " Hicks,
929 So.2d at 16 n.2 (citing Aberdeen Golf & Country
Club v. Bliss Constr., Inc., 932 So.2d 235, 239 n.6
(Fla. 4th DCA 2005))). So we must address both legal theories
that the circuit court's ruling may have employed.
first theory under which this order might be upheld is that
no parking infraction in fact occurred to support the stop.
Without the justification of a parking violation, there would
have been no lawful basis for the deputies to have stopped
and detained Mr. Battle, and the shotgun and white powder
would have to be suppressed as the product of an illegal
search. See Musallam v. State, 133 So.3d 568, 569
(Fla. 2d DCA 2014) (citing Wong Sun v. United
States, 371 U.S. 471, 488 (1963)). But the occurrence
and observation of the parked vehicle in the wrong direction
of traffic was never a disputed fact in the suppression
hearing. Both deputies testified, without contradiction, that
the car was parked on the wrong side of the road. And Mr.
Battle specifically conceded within his motion's
"general statement of the facts on which the motion is
based, " that the car had been illegally
parked. See Cartwright v. State, 920
So.2d 71, 74 (Fla. 3d DCA 2006) (holding that where defendant
conceded in his motion to suppress that an individual owned
an apartment building, the State did not have to then prove
that individual's authority to grant permission to enter
the building's common area). To be sure, in the hierarchy
of public offenses, parking a car on the wrong side of a
public road could be characterized as a relatively minor
infraction. It was still an illegal act, however; and since
it occurred in the presence of the sheriff's deputies, it
served as probable cause which authorized their intervention
to stop the vehicle and issue a citation. See State v.
Nelson, 183 So.3d 1074, 1076 (Fla. 5th DCA 2015)
("Traffic violations that may justify a stop include
non-criminal traffic violations." (citing State v.
Arevalo, 112 So.3d 529, 531 (Fla. 4th DCA 2013))). To
the extent the circuit court's decision rested upon a
finding that no such infraction occurred, that finding
conflicts with the unrefuted testimony at the hearing and Mr.
Battle's concession in his motion, and so we must reject
such a finding as a basis to support the court's
ruling.See State v. Ross, 209 So.3d 606, 610 (Fla.
2d DCA 2016) (noting that a circuit court's findings must
be accepted by the appellate court only when the evidence
supports those findings (citing State v. Navarro,
464 So.2d 137, 140 (Fla. 3d DCA 1985) (en banc))).
the second theory upon which the circuit court may have based
its ruling-that Deputy Ernstes' stop and search of the
vehicle had nothing to do with the parking infraction but was
motivated by the report that Mr. Battle had been handling a
firearm in the presence of known felons-that subjective
determination, even if it were accurate, would not support
the suppression of this evidence as a matter of law. Simply
put, a pretextual stop (such as the one that may very well
have occurred here) can still serve as a valid basis to stop
and detain an individual so long as there is an objective
basis for the law enforcement officer's intervention
(such as there was here). See Whren v. United
States, 517 U.S. 806, 813 (1996) ("Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis."); Holland v. State, 696
So.2d 757, 759 (Fla. 1997) ("In determining whether the
suppression order in the instant case should be reversed, we
are constrained to review the record under the objective test
of ___ Whren. When applying the objective test,
generally the only determination to be made is whether
probable cause existed for the stop in question.");
State v. Thomas, 714 So.2d 1176, 1177 (Fla. 2d DCA
1998) ("The United States Supreme Court in
Whren eliminated the reasonableness inquiry
regarding an officer's stop of a vehicle and substituted
a strict objective test which asks only whether any probable
cause for the stop exists."). The circuit court's
finding that Deputy Ernstes was not credible ...