Tyrone Jenkins v. State Of Florida
37 Fla. L. Weekly D2846a
Here is an example of fine lawyering in Florida. The Defendant was arrested for altering a license tag and his car was subsequently searched incident to arrest on two separate occasions. The result of the search resulted in additional drug charges and possession of counterfeit labels. Defense counsel filed and argued a Motion to Suppress stating that the misdemeanor crime of altering a tag did not occur in the police officers’ presence therefore the arrest was illegal. The argument was creative and highly effective. The Trial Court denied the motion but on appeal the argument was granted. The issue revolves around Search and Seizure incident to arrest and whether the arrest was lawful. I enjoyed reading the case and thought others may enjoy it as well. The facts are summarized below and the appellate opinion is copied and pasted for your convenience.
Facts: In mid-September 2009, police officers stopped Mr. Jenkin’s car because he was playing loud music, had a tinted plastic cover over his license tag, and failed to make a complete stop at a red light. Mr. Jenkins was arrested for altering a license tag, a misdemeanor. Incident to his arrest (when your legally arrested the police are allowed to search your vehicle), police officers searched his car and found cocaine in Mr. Jenkin’s wallet along with baggies with cocaine residue and a scale in the trunk. Additionally, Mr. Jenkins gave a confession stating that he was selling drugs because he was broke and laid off from his job.
A few weeks later, police officers again stopped Mr. Jenkins’ car; it still had the tinted plastic license tag cover. They arrested him again for obscuring a license tag. An inventory search of the car uncovered seven hundred counterfeit music and video CDs and DVDs. Mr. Jenkins again confessed by saying he knew having the counterfeit CDs and DVDs was wrong, but he was just trying to make ends meet.
Since the Defendant was already on probation for Possession of Cocaine and Battery, the State filed an affidavit of violation of probation in case 08-CF-3171 based on the alleged new law violations in cases 09-CF-13383 and 09-CF-14318.
Mr. Jenkin’s lawyer filed motions to suppress in all three cases. He argued that his arrests were unlawful because altering a license tag was a misdemeanor that must be committed within the presence of a law enforcement officer for an arrest to be lawful. See § 901.15(1), Fla. Stat. (2009); Baymon, 933 So. 2d at 1270 (holding officers cannot arrest for misdemeanor unless defendant commits it in their presence). It is undisputed that Mr. Jenkins did not alter the tag in the presence of the police officers.
The trial court was not persuaded by the argument and denied the motions “based on [its] review of the case law on obscured tag.” RP Foley Translation, the majority of judges hearing these motions are undercover police officers in black robes. Anyway, Mr. Jenkins then entered an open no-contest pleas in his cases. (an open plea is when Defense and Prosecutor have no agreement as to a sentence and the Defendant asks the judge to give him a sentence- its dangerous if your attorney does not know the personality of the judge and his sentencing trends. The judge has discretion so sometimes its a better sentence then what your attorney could negotiate with the prosecutor but sometimes its worse). Defense counsel reserved the Defendant’s right to appeal the denial of the dispositive motions (motions that if granted would cause the case to be dismissed) to suppress. The trial court convicted him on all charges, revoked his probation, and sentenced him to thirty-six months in prison.
Mr. Jenkins argues on appeal that the trial court erred in denying his motions to suppress because the searches were incident to his arrests, and the arrests were unlawful because the altering-a-license-plate violations were misdemeanors not committed in the presence of the police officers. See § 901.15(1); Baymon, 933 So. 2d at 1270. The appellate court agreed. In the two new cases involving the illegal tag, the officers arrested Mr. Jenkins for violating section 320.061, which provides as follows:
No person shall alter the original appearance of any registration license plate, mobile home sticker, validation sticker, or vehicle registration certificate issued for and assigned to any motor vehicle or mobile home, whether by mutilation, alteration, defacement, or change of color or in any other manner. No person shall apply or attach any substance, reflective matter, illuminated device, spray, coating, covering, or other material onto or around any license plate that interferes with the legibility, angular visibility, or detectability of any feature or detail on the license plate or interferes with the ability to record any feature or detail on the license plate. Any person who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
The officers were not present when the clear tinted plastic cover was placed over the license plate. The appellate court noted that the officers could have instead charged Mr. Jenkins with violating section 316.605, Florida Statutes (2009), requiring display of license plates in a manner that 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 . . . .
However, the arrest still would not have been lawful, even though Mr. Jenkins displayed the license plate — in the officers’ presence — in a manner that allegedly was not plainly visible and legible, because violating section 316.605 is not a misdemeanor or municipal or county ordinance, but a noncriminal traffic infraction. See § 316.605(1) (“A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.”).
The proper procedure to handle the tag alteration charges was for the officers to issue a traffic citation containing a notice to appear, see § 316.650, Fla. Stat. (2009)2, which “invokes the subject matter jurisdiction of the court and commences prosecution of the criminal traffic case.” See Fla. R. Traffic Court 6.165.3 4
Because the arrests were unlawful, “the law mandated suppression of the evidence seized in any search performed incident to that arrest.” See Baymon, 933 So. 2d at 1270 (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Accordingly, we reverse Mr. Jenkins’ convictions for possession of cocaine with intent to sell and possession of drug paraphernalia in case 2D10-5322 (case 09-CF-13383). We reverse his conviction for possession of counterfeit private labels in case 2D10-5364 (case 09-CF-14318). We remand those cases for resentencing on his convictions5 for altering a license tag. We reverse the revocation of probation in case 2D10-5365 (case 08-CF-3171) and remand for consideration of whether to revoke, modify, or continue probation based only on altering a license tag. See Paterson v. State, 612 So. 2d 692, 694 (Fla. 1st DCA1993).
Reversed and remanded. (NORTHCUTT and CRENSHAW, JJ., Concur.)
For those without a legal background, the trial court will be handed down this opinion by the higher court and be forced to change the sentencing. The two cases that resulted in drug charges and possession of counterfeit labels will be dismissed, however the trial court will decide the faith of the Defendant on his original charge for which he was placed on probation; Possession of Cocaine and Battery. Although the new cases were deemed illegal arrests and the motion was dispositive, the defendant had contact with the police and is alleged to have committed a second degree misdemeanor wherein the trial court must determine whether by a preponderance of the evidence he committed this crime. Note that the standard of proof that the Prosecutor must prove in a Violation of Probation is preponderance of evidence and not beyond and to the exclusion of a reasonable doubt. The prosecutor must demonstrate that there is a 50.01 percent likelihood that Mr. Jenkins was up to no good. When the evidence is presented to the judge, the same judge that just got lectured to by his appellate boss, the result may be the same and the Defendant may end up incarcerated for 36 months or more. Why? Because if the judge determines that there was a violation of probation then he has discretion to revoke, modify, or continue probation. Depends on the judge but don’t be surprised if this Defendant ends up winning the battle but losing the war.