County Case No. MM99-00588A-LD
Appeal No. BB-58
June 6, 2000

DAVID LONDON,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

_______________________________

This is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant argues that the trial court erred by failing to grant his motion to suppress certain evidence. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

On March 18, 1999, police officers observed a broken tail light and stopped Appellant’s vehicle. One of the officers asked Appellant to accompany him to the cruiser for the citation. Appellant’s passenger remained in the vehicle. When Appellant exited his vehicle, another officer observed a business-sized envelope containing cannabis in the center console of Appellant’s vehicle. The officer testified that he saw the envelope through the open window of the driver door. The envelope had a window which allowed him to see its contents, and he immediately determined that the substance was cannabis. Tests later affirmed that the substance was cannabis. A complete vehicle search produced no other contraband.

Appellant testified that the envelope was inside the closed center console under CDs and other papers. He argued that the only way the officer could have discovered the envelope was by searching the console. Nevertheless, Appellant later admitted that the envelope and its contents were his. On appeal, Appellant argues that the stop was pre-textual and the search was non-consensual, therefore the trial court erred by failing to suppress the evidence.

A trial judge’s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. Escobar v. State, 699 So. 2d 984, 987 (Fla. 1999); c.f., Ramirez v. State, 739 So. 2d 568 (Fla. 1999) (dissenting opinion arguing that record does not support majority finding). To succeed on appeal, Appellant must show that the ruling of the trial court is not supported by competent evidence. Id.

To make a traffic stop, an officer must have reasonable suspicion that criminal activity is happening or is about to happen. Doctor v. State, 596 So. 2d 442 (Fla. 1992); Terry v. Ohio, 392 U.S. 1 (1968). Generally, an officer must have a warrant or consent from the owner before searching a vehicle. Whren v. U.S., 517 U.S. 806, 810 (1996). Without a warrant or consent, an officer must have probable cause before conducting a search. Id. However, an exception applies when contraband is in plain view. Putnel v. State, 746 So. 2d 521 524 (Fla. 2d DCA 1999).

Appellant argues that the stop was pre-textual because the officer lacked probable cause, and the officer searched the vehicle without consent or a warrant. Appellant concedes that he was cited for a broken tail light; therefore, his pretext argument fails. The officer’s observation of a broken tail light on Appellant’s car, established sufficient legal basis for a traffic stop and the subsequent citation. Whren, 517 U.S. at 810. As to Appellant’s second argument, the trial judge heard conflicting testimony regarding the nature of the console and the location of the contraband. The trial judge concluded that the envelope was in plain view and properly seized. This court may not reweigh findings which resolve disputed factual issues. Id. The decision below is based upon competent substantial evidence.

Accordingly, it is ORDERED that the ruling of the county court is AFFIRMED.

ORDERED 6 June 2000.

Charles B. Curry

Chief Judge