County Case No.MM99-031361-XX
Appeal No. BB-53
April 14, 2000

DAVID WAYNE FUSSELL,

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.

Polk County Sheriff’s Deputy Todd Bailey observed Appellant toss a meat tray under his vehicle before leaving the parking lot of a Circle K store. Bailey followed Appellant’s vehicle a short distance. As Bailey followed Appellant out of the lot, he observed that Appellant had a cracked tail light, and a shattered rear wind shield. Bailey made a traffic stop based upon his observations. He advised Appellant that he did not intend to issue any citations despite his observations, and that he was in the area searching vehicles for illicit drugs. Bailey testified that he asked Appellant for consent to search his person and his vehicle. Appellant consented, and Bailey retrieved two marijuana cigarets from a cigaret package in Appellant’s shirt pocket.

Appellant disputed Bailey’s testimony stating that he did not litter, his reverse light was cracked, but the brake light still shown red as required by statute, and that he had no rear wind shield at all. Appellant also testified that his reason for going to the Circle K store was to buy fried chicken to eat on his way home from work. In closing, the state conceded the tail light argument, but maintained that the testimony of both Bailey and Appellant tended to establish that Bailey had in fact littered by discarding the fried chicken container in the parking lot. The state noted that Circle K sells fried chicken in Styrofoam trays and shrink wrap. The trial judge concluded that even if Appellant says he did not litter, he accepted the officer’s version of events, and denied the motion.

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). This court may not reweigh findings which resolve disputed factual issues. Id. 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). An officer may not make a stop based on bare suspension, or a hunch. Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983). Having resolved disputed facts in the state’s favor, the trial judge concluded that the officer had a reasonable basis in fact to make a traffic stop. Because the defense did not dispute the voluntariness of the consent, the trial judge concluded that the evidence was admissible. This court finds that the record contains competent substantial evidence supporting the trial judge’s findings.

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

ORDERED 14 April 2000.

Charles B. Curry

Chief Judge