Gordon v. State

901 So. 2d 399, 2005 WL 1125032
CourtDistrict Court of Appeal of Florida
DecidedMay 13, 2005
Docket2D04-1547
StatusPublished
Cited by6 cases

This text of 901 So. 2d 399 (Gordon v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. State, 901 So. 2d 399, 2005 WL 1125032 (Fla. Ct. App. 2005).

Opinion

901 So.2d 399 (2005)

Dwight Juan GORDON, Appellant,
v.
STATE of Florida, Appellee.

No. 2D04-1547.

District Court of Appeal of Florida, Second District.

May 13, 2005.

Kendra D. Presswood of Presswood Law Firm, P.A., Holmes Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnes and Diana K. Bock, Assistant Attorneys General, Tampa, for Appellee.

WALLACE, Judge.

Dwight Juan Gordon appeals the judgment and sentence imposed on him for trafficking in cocaine following the denial of his dispositive motion to suppress. The *400 cocaine was discovered during a search of Gordon's vehicle that ensued after Gordon was stopped for driving with two air fresheners hanging from the vehicle's rearview mirror. We reverse because driving with an air freshener or other object suspended from the vehicle's rearview mirror does not constitute a traffic infraction under Florida law. Thus the arresting officer had no objective basis to stop Gordon's vehicle.

THE FACTS

On July 2, 2003, Deputy Neil Gershin and Deputy Clifford J. Deutsch of the Collier County Sheriff's Office were engaged in drug interdiction on Alligator Alley. The deputies were in separate vehicles near the toll plaza at the western terminus of the east-west highway. Deputy Deutsch, a canine officer, was accompanied by his narcotics detection dog, "Drago." The deputies saw Gordon drive by in a 1988 Cadillac at approximately 3:30 p.m. Deputy Gershin decided to stop the Cadillac because Gordon was driving with two air fresheners hanging from the vehicle's rearview mirror.

Deputy Gershin pursued and stopped Gordon's vehicle. Deputy Deutsch followed to assist Deputy Gershin. Gordon provided his driver's license, registration, and proof of insurance to Deputy Gershin, who returned to his vehicle to run a records check on his computer. The records check — which was completed within a matter of a few minutes — was negative. Meanwhile, Deputy Deutsch approached Gordon and looked inside the Cadillac. In addition to the two air fresheners hanging from the rearview mirror, the deputy saw four more air fresheners in an open storage compartment near the passenger seat. Deputy Deutsch asked Gordon about the presence of weapons, terrorist-related items, or controlled substances in the vehicle. Gordon denied having any such items but Deputy Deutsch believed that Gordon appeared nervous and exhibited other suspicious behavior when answering questions about controlled substances. Deputy Deutsch asked for and obtained Gordon's consent to search the vehicle.

Gordon got out of the vehicle at Deputy Deutsch's request and stood behind the vehicle near Deputy Gershin. After finding no contraband in the vehicle's passenger compartment, Deputy Deutsch removed the keys from the ignition and opened the trunk. Inside the trunk he found a box of laundry detergent, but no laundry. Deputy Deutsch then retrieved Drago and walked him around the Cadillac. According to Deputy Deutsch, Drago "alerted" at the vehicle's trunk. After securing Drago, Deputy Deutsch opened the box of laundry detergent and found inside it a clear plastic bag containing 250 grams of cocaine. Gordon was arrested and taken to the Collier County Jail. When Gordon bonded out of jail, he found among the personal property returned to him a warning ticket for a violation of section 316.2004(2)(b), Florida Statutes (2003).

PROCEDURAL HISTORY

The State charged Gordon with one count of trafficking in cocaine in excess of 200 grams, a first-degree felony. Gordon filed a motion to suppress the evidence obtained as a result of the stop. After an evidentiary hearing, the trial court denied Gordon's motion. Thereafter, Gordon entered a no contest plea, reserving the right to appeal the denial of his motion to suppress, which the State agreed was dispositive. The trial court sentenced Gordon to prison for a seven-year minimum mandatory term to be followed by three years' probation and a fine of $100,000.

*401 THE HEARING ON THE MOTION TO SUPPRESS

At the hearing on the motion to suppress, the deputies testified that the air fresheners that drew their attention to Gordon's Cadillac were approximately five inches in length. Photographs of the air fresheners in our record reveal that they were shaped like miniature evergreen trees. The deputies agreed that the air fresheners were similar to air fresheners that are generally available for sale in automotive supply stores and in car washes. A string was attached to the top portion of each air freshener. The string was looped over the post supporting the vehicle's rearview mirror. Thus the air fresheners were not affixed to the vehicle's windshield. Instead, they were suspended loosely in the vehicle by the string that hung from the rearview mirror. Deputy Deutsch testified that air fresheners may be used to mask the odor of controlled substances.

Deputy Gershin and Deputy Deutsch testified at the hearing that the air fresheners in Gordon's Cadillac obstructed the driver's view of the roadway in violation of section 316.2952(2), Florida Statutes (2003).[1] However, the deputies did not explain how the air fresheners would have obstructed Gordon's view of the roadway through the front windshield or the extent to which his vision would have been obstructed. Gordon admitted that he was driving with the two air fresheners hanging from his rearview mirror, but he denied that they obstructed his view of the road. Neither the State nor the defense offered any expert witness testimony on the factual issue of the extent to which relatively small objects suspended from a vehicle's rearview mirror would obstruct the driver's view of the roadway.[2] Deputy Gershin testified at the hearing that he had stopped "hundreds" of motorists for similar violations. He had also written thirty-seven citations for this offense since January 2001.[3] At the conclusion of the hearing, the trial court ruled that the State's evidence concerning Gordon's operation of the Cadillac with two air fresheners suspended from the rearview mirror was sufficient to support the traffic stop. The trial court also rejected Gordon's other challenges to the validity of the vehicle search.

ANALYSIS

A. The Standard of Review

We employ a mixed standard of review in considering the trial court's ruling on Gordon's motion to suppress. The trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

*402 B. The Issue to Be Decided

Gordon raises three issues challenging the validity of the vehicle search that resulted in the discovery of the cocaine hidden in the box of laundry detergent located in the trunk. We need discuss only one: the lawfulness of the initial traffic stop. In determining the lawfulness of the traffic stop at issue in this case, we must examine whether the arresting officer had an objective basis to stop Gordon's vehicle.

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Bluebook (online)
901 So. 2d 399, 2005 WL 1125032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-state-fladistctapp-2005.