MARSHAL: PLEASE RISE. HEAR YE.HEAR YE.HEAR YE. THE SUPREME COURT OF FLORIDAIS NOW IN SESSIO N. ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , G IVE ATTENTION AND YOU SHALL BE HEARD. GOD S AVE THESE UNITED STATES , THIS GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLE MEN , THE FLORIDA SUPREME COURT.PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING LADIES ANDGENTLEMEN. WELCOME TO THE FLORIDASUPREME COURT.WE HAVE ONE CASE ON THEDOCKET THIS MORNING , AND THAT IS THE CASE OF HILTON VERSUS STATE OF FLORIDA . BEFORE STA RTING O RAL ARGUMENT, I WANT TO WELCOMEOUR TEACHE RS AND FACULTY FROM THE JUSTICE TEACHING INSTITUTE, WHO H AVE BEEN HERE ALL WE EK , LEARNING ABOUT THE COURT SYSTEM , ANDNOT TO PUT ANY ADDITIONAL PRESSURE ON THE PARTIES HERE , BUT HAVE BEEN STUDYING THIS CASE AND DOING THEIR O WN ORAL ARGUMENT S , AND I, A L SO , WANT TO WELCOME A G ROUP , AND I DIDN'T GE T THE N AME O F THEGROUP THAT IS ALSO I N THE COURTROOM A SCHOOL GROUP ? AMERICORPS. WELCOME AND WE THANK YOU FOR YOU WHAT YOU DO , AS FAR AS THE VOLUNTEER WORK IN THESCHOOLS.IT IS GREAT T O SE E ALL OF YOU HERE, SO WITH THAT ANDWE, ALS O , APOLOGIZE FOR STARTING A LITTLE LATE. WE WE RE IN COURT CONFERENCE , AND HAD SE VERAL IMPORTANT MATTERS TO DISCUSS. SO WITH THAT , I CALL THECASE OF HI LTON VERSUS STATEOF FLORIDA. MR. MUST O.

MAY IT PLEASE THE CO URT.GOOD MORNING, YOUR HO NORS , ANTHONY MUSTO ON BEHALF OF TRISTAN HILTON. YOUR HONORS , I T IS PERFECTLY PROPER TO STOP A VEHICLE IF IT HAS G OT A CRACK LIKE THIS IN THE WINDSHIELD RIGH T IN FRONT OF THE DRIVER.

WHAT IF AN OFFICER SEES A VEHICLE DOWN THE ROAD AND SEES A CRACK BUT H E C A N'T TELL IF HE IS GOING 55 MILES AN HOUR ONE WAY AND 5 5 THE OTHER IN A MI LL I SECOND, WHETHER THAT CRACK IS THAT BIG OR SOMEWHAT SMALLER, WHETHER IT IS DANGEROUS TO THE PASSENGERS OR NOT . I S HE JUSTIF IED IN STOPPING THE VEHICLE, JUST TO CHECK TO SEE HOW LA RGE THE CRACK IS?

NOT MERELY UPON THEOBSERVATION OF A CRAC K. THE QUESTION IS DO ES HE H A VEA FOUNDED SUSPICION TO BELIEVE THAT A STATUTE IS BEING VIOLATED, AN ORDINANCE OR STATUTE IS BEING VIOLATED. I F YOU HAVE A CRACK LIKE THAT, IF AN OFF ICER SEES A CRACK LIKE THAT ONE , HE HAS A FOU NDED SUSPICION T O BELIEVE THAT THE STATUTE THAT PROHIBITS A VEHI CLE IN UNSAFE CONDITION A S TO ENDANGER A PERSON OR PROPERTY --

JUST ICE: TELL WAS THAT IS. IS THIS AN EXHIBIT --

A SPIDER WEB -- I AM SORRY .

JUSTICE: IS THIS AN EXHIBIT THAT WAS ENTERED INTO THE RECORD?

NO , YOUR HONOR, IT IS NOT.

JUSTICE: TELL US WHAT THAT IS.

THAT IS SIMPLY A PIECE OF G LASS WI TH A STICKER ON IT TO RESEMBLE A CRACK , SH OWING A SP IDER WEB OR STAR B URST TYPE OF CRACK THAT MANY C ASES TAL K B I BROUGHT THAT IN TO DRAW THE DISTINCTION TO THE FACT IN THIS CASE WE DON'T HAVE A STAR BU RS T OR S PIDER WEB. WE HAVE ONE SI NGLE CRACK.

JUSTICE: DOES THAT M ATTER WHE THER THE STAR B URST IS THE ON THE PASSENGER SIDE OR THE DR IVER 'S SIDE?

I THINK IT COU LD. A STAR BURST LIKE THAT IS GOING TO C OVER A GREATERAREA OF THE WINDSHIELD AND IN TERMS OF WHETHER IN FACT IT RENDERS THE VEHICLE UNSAFE, THE MORE OF THE DRIVER'S VISI ON THAT IS BLOCKED , MORTGAGE LIKELY IT WILL BE UNSAFE. CLEARLY IF IT IS RI GHT IN FRONT OF THE DRIVER, THAT IS GOING TO BE UN SAFE.

JUSTICE: ORDINARILY WE W OULD SAY TO YOU THAT WE ALREADY KNOW THE FACTS OF THE CASE. YOU ALL HAVE SKRAD DESCRIBED THEM AND WHAT I S IN YOUR BRIEFS, BU T HERE THE PHOTOGRAPH THAT IS IN THERECORD IS NOT VERY HELPFUL.

NO, IT IS NOT.

JUSTICE: AND ESPECIALLY REPRODUCTIONS OF THEPHOTOGRAPH BUT THEPHOTOGRAPH, ITSELF, SO WOULD YOU GIVE US YOUR BEST WO RD PICTURE OF THE WAY THAT THIS CRACK WAS DESCRIBED AND THE TESTIMONY B E LOW , AND S O I N ASENSE , SIN CE YOU AR E THE ONE APPEALING HERE, GIVE U S THE WORD PICT URE THAT MAY TEND TO PRESENT A PI CTURE OF IT MORE IN FAVOR OF THE STATE. SO WOULD YOU GIVE US THAT WORD PICTURE, THOUGH, THAT APPEARS IN THE RECORD.

I WILL GIVE YOU THAT WORD PICTURE.

JUSTICE: S I ZE.

THE SIZE. THE OFFI CER MERELY MADE A HAND GE STURE . THE TRIAL JUDGE DESCRIBED A HAND GESTURE AS BEING BETWEEN 7 AND 8 IN CHES, SO WE HAVE ONE SINGLE CRACK , NOT A STAR BURST , NOT A SPIDER WEB BUT ONE SINGLE CRACK OF 7 OR 8 INCHES L ONG L OCATED IN THE UPPER RIGHT HAND PORTION OF THE WINDSHIELD, THE PASSENGER'SSIDE OF THE WINDSHIELD , MOSTLY IN THE T INTED AREA.

JUSTICE: WAS IT L ENGTH WISE HORIZONTAL OR VERTICAL?

IT APPEARED T O BE HORIZONTAL, CO MING F ROM THE TOP TOWARDS THE MIDDLE , ANDI AM GETTING THAT MORE FROM WHAT I CAN TELL FROM --

JUSTICE: SEV EN OR E IGHT INCHES LO NG AND A GREATDISTANCE WAY FROM THE DRIVER'S WINDSHIELD .

THAT'S CORR ECT, AND AS I SAID, PRIM ARILY IN THE T INTED PO RTION OF THE WINDSHIELD AND IN AN AREA WHERE, IF THE SUN VISOR WAS PUT DOWN , MOST OF THE CRACK WOULD NOT BE VIS IBLE.

JUSTICE: MR. MUS TO, LETME DI RECT YOUR ATTENTION TO, REALLY, THE BOTTOM LINE OF ALL OF THIS IS THAT YOUR SEEKING TO HAVE THESUPPRESSION OF THE EVIDENCE REVERSED. RIGHT?

THAT'S CORRECT.

JUSTICE: AND THAT INVOLVES THE EXCLUSIONARY R ULE , CORR ECT?

THAT'S CORRECT.

JUSTICE: NOW , YOU WOULD AGREE THAT WE ARE BOUND BY THE UNITED STATES SUP REME COURT 'S DECISIONS ON THE EXCLUSIONARY R ULE.

THAT'S CORRECT.

JUSTICE: AND THE UN ITED STATES SUPREME COURT, IN ARIZONA VERSUS EV ANS AND THE U .S. VERSUS LEON AND A WH OLE SERIES OF CASES , HAS SAID THAT THE EXCLUSIONARY RULE IS AN ISSUE WHICH I S SEPARATE FROM WH ETHER THE FOURTH AM ENDMENT , WHETHER IT WAS UNREASONABLE SE ARCH AND SEIZURE , RIG HT?

WELL , I WOULD SAY THAT, IF THE RE IS AN ILLEGAL STOP PURSUANT TO THE FOU RTH AMENDMENT, THEN THE EXCLUSIONARY RULE IS GOING TO PREC LUDE THE ADMISSION O F EVIDENCE THAT IS SE IZED, BARRING ANY S P ECIAL CIRCUMSTANCES.

JUSTICE: THE U.S. SUPREME COURT SAID THE QUESTION WHETHER AN EXCLUSIONARY RULE IS RE MEDY IS LONG REGARDED AS AN ISSUE SEPARATE FROM THE QUESTI ON OF WHETHER THE FOURTH AMENDMENT RIGHTS OF THE PA RTY SEEKING TO INVOKE THE RULE WERE VI OLATED BY P OLICE COND UCT. THE EXCLUSIONARY RULE O PERATES AS A JUDICIAL LY REMEDY , DESIGNED TO SAFEGUARD AGAINST F UTURE VIOLATIONS , AND THE RULE'S APPLICATION HAS BEEN RESTRICTED TO TH OSE INSTANCES IN WH ICH ITS REMEDIAL OBJECTIVES ARE THOUGHT TO SE RVE THE ENDS OF DETERRE NCE.NOW , WHAT CAN BE THE END OF DETERRENCE IN K EEP ING POLICE OFFICERS FROM STOP PING AND MAKING JUDGMENTS ABOUT PEOPLE THAT ARE OPERATING THEIR VEHICLES ON THE R OAD WITH CRACKED WINDSHIELDS? ARE WE TRYING TO DETER THAT CONDUCT BY POLICE OFFICERS?

WE ARE TRYING TO DETER THEM FROM DOING THAT WHEN DOING SO INVO KES THE PERSON'S FOURTH AMENDMENTRIGHTS, AND IF YOU STOP SOMEBODY WITHOUT A FOUN DED SUSPICION THAT A STATUTE BEING VIOLATED , THAT VIOLATES THE FOURTH AMENDMENT RIGH TS.

JUSTICE: THAT IS MY POINT. MY POINT IS THAT THAT IS NOT WHAT THE UNITED STATES SUPREME COURT SAID AS I READ THESE CASES. THE U.S. SUPREME COURT HAS SAID THAT THER E HAS GOT TO BE A REASON TO SA NCTION THE CONDUCT OF THE POLICE OFFICER IN ORDER FOR THE EXCLUSIONARY RULE TO BE INV OKED, AND I WANT TO KNOW WHY ARE WE TRYING TO SANCTION POLICE OFFICERS FOR STOPPING P EOPLE THAT HAVE DEFECTIVE WINDSHIELDS?

BECAUSE IT IS AN IL LEGAL STOP. IT IS NOT AGAI NST THE LAW IN THE STATE OF FLOR IDA TO DRIVE WITH A CRACKED WINDSHIELD .

CHIEF JUSTICE: LET 'S GO BACK, MAYBE GET BACK TO THAT F IRST PRELIMINARY QUESTION. THE SE COND D I STRICT HELD THAT THERE WAS A VIOL ATION , CORRECT? THEY INTERPRETED THE STATUTE AS THAT A VISIBLE CRACK IN A WINDSHIELD PROVIDES A LEGAL BASIS FOR , FOR A TR AFFIC STOP, BECAUSE THE WINDSHIELD IS NOT IN PROPER RE PAIR , SO THE FIRST QUESTION THAT WEHAVE TO GET TO IS WHETHER A , ANY CRACK IN A WINDSHIELD MAKES , UN DER FLORIDA LAW , A WINDSHIELD NOT I N PROPER REPAIR. NOW, TELL US THE STATUTE THAT EITHER SAYS OR DOESN'T SAY THAT ANY CRACK IN THE WINDSHIELD IS A DEFECTIVE OR NONDEFECTIVE VEHICLE .

WELL , LET ME , FIRST OF ALL , T AKE ISSUE WITH ONE THING THAT YOU SAID IN YOUR QUESTION. YOU SAID THAT THE SECON D DISTRICT FOUND IT WAS AVIOLATION.I DON'T THINK THEY FOUND THAT. THEY FOUND THAT THE STATUTE AUTHORIZED A STOP , BUT THEY RECOGNIZED THAT A CRACKED WINDSHIELD, IN AND OF ITS ELF , DID NOT CONSTITUTE AVIOLATION OF LAW. RATHER, THEY RE LIED ON 316.610-1, KM TALKS A BOUT THE CIRCUMSTANCES UNDER WHICH AN OFFICER MAY STOP AVEHICLE AND SUBMIT I T TO INSPECTION. THAT IS WHAT THEY RELIED ON.NOW , TO GET TO THE MEAT OF YOUR QUESTION --

IT IS REQUIRED BY THE CHAPTER AS A VIOLATION O F THE SECTION TO STOP AWINDSHIELD THAT IS NOT IN THE PROPER POSITION OF ADJUSTMENT.

I THINK BY T HIS SECTION , THEY WERE REFE RRING T O SUBSECTION 1, WHICH IS THECRUX OF THEIR HOLDING AND THE CRUX OF THE STATE'S ARGUMENT THE PROBLEM WITH THAT , THERE IS REALLY TH REE ANSWERS TO THIS.FIRST OF ALL , WHAT EVER THE LEGISLATURE DID , THEY CAN'T IMPINGE ON THE FOURTH AMENDMENT. THE FOURTH AMENDMENT STILLREQUIRES THAT YOU HAVE TO HAVE A SH OWING OF A VIOLATION OR FOUNDED SUSPICION TO BELIEVE THAT THERE IS A V IOLATION OF LAW . THEY CAN'T C HANGE THAT.

CHIEF JUSTICE: YES , BUT THE LEGIS LATURE COULD DE CIDE THAT CRACKED WINDSHIELD S OF ANY SIZE , CREATES A SAFETY HAZARD. I ME AN, WE DON'T HAVE THE EVIDENCE HERE ABOUT WHETHE R, IF YOU HAVE GOT A 8 - INCHCRACK , THAT THAT MAY CAUSE , IN A MI NOR COLLISION , FOR THE WHOLE WINDSHIELD TO SHATTER?I DON'T KN OW.

CORRE CT.

CHIEF JUSTICE: THAT WOULD AND LEGISL ATIVE DETERMINATION.

ABSOLUTELY.

CHIEF JUSTICE: ALL RIGHT.SO NOW WE GO TO , DID THE LEGISLATURE INTEND FOR THERE TO BE STOPS , IF THERE WERE CRACKS IN WINDSHIELDS.

OKAY. THE ANSWER TO THAT IS NO. FIRST OF ALL THERE IS N O STATUTE THAT SAYS IT SHALL BE UNLAWFUL TO DRIVE WITH A CRACKED WINDSHIELD.NOW , LET'S ANALYZE SUBSECTION 1 UPON WHICH THE STATE RELIES AND UPON WHICH THE F IRST DISTRICT RELIED. FIRST OF ALL THAT POS ITION DOES NOT ESTABLISH OR DEFINE AN OFFENSE, IN AND OF ITSELF. THE OFFENS E IS ESTABLISHED AND DEFINED BY THE UNNUMBE RED PARAGRAPH THAT COMES BEFORE IT, AND THAT PARAGRAPH SAYS THAT IT SHALL BE UNLAWFUL TO OPERATE A VEHICLE WITH THE EQUIPMENTNOT IN PROPER CONDITION OR ADJUSTMENT, AS REQUIRED IN THIS CHAPTER. AND THOSE ARE THE KEY WORDS .

JUSTICE: WELL , COULD WE BOTH, I WOULD LIKE BOTH SIDES TO ADDRESS THIS. CERTAINLY THIS COURT HAS ADDRESSED THE ISSUE OF STOPS AND MO TOR VEHICLE CONDITIONS BEFORE, AND YOU ARE BOTH CERTAINLY A WARE OF THOSE , AND I GU ESS WE CAN ARGUEBACK AND FORTH OR DISCUSS WHETHER THAT IS STILL GOOD LAW, BUT I F THAT IS THECORRECT APPROACH OR AT LEASTIT THE IS STILL V ALID , WHERE DOES THE WINDSHIELD SIT IN THIS DISCUSSION IF WE DO AN OVERLAY OF THE TAILLIGHT IF THAT IS THE FUNDAMENTAL QUESTION, AND CERTAINLY WE CAN GET INTO OTHER ISSUES OF BROWN AND THOSE WITH REGARD TO THE EXCL USIONARY RULE , BUT JUST THAT ONE , F IRST OF ALL THIS COURT HAS ALREADYSPOKEN TO THAT ISSUE, BUTTHERE ARE DIFFERENCES , THERE ARE DIFFERENCES BETWEEN THESE TWO THAT APPEARS. COULD YOU AD DRESS THAT?

THERE ARE DIFFERENCES, IN THE SENSE THAT DO CTOR DEALSWITH THE TAILLIGHT AND THIS ONE DEALS WITH A WINDSHIELD. THE CRACK IN THE TAILLIGHT DID NOT EQ UAL A VIOLATION OF THE LAW .

JUSTICE: BUT IN DOCTOR , THEY FOUND THAT THERE WAS AN OPERATING TAIL LIGHT THAT SHINES FOR THE 4,000 F EET AS REQUIRED BY THE STATUTE.

THAT'S CORRECT.

JUSTICE: AND THAT , THE EQUIPMENT WAS THE TAILLIGHT NOT THE LENS .

CORRECT.

JUSTICE: BUT ISN'T THAT ADISTINCTION WITH DOC TOR?

IT IS A DISTINCTION BUT I SUGGEST TO YOU IT IS A DISTINCTION WITHOUT A DIFFERENCE, BECAUSE THE S ECOND DIST RICT'S OPINIONHOLDS THAT, IF ANY EQUIPMENTIS NOT IN PROPER WOR KING O RDER , THERE CAN BE A ST OP. THIS COURT REJECTED THAT IN DOCTOR. THIS COURT POINTED OUT THAT, BECAUSE THE CRACKED TAILLIGHT DIDN'T VIOLATE A LAW , THEY WERE NOT GOING TO ACCEPT THAT PRINCIPLE , AND YOU STATED SPECIFICALLY THAT YOU DID NOT AGREE WITH THE STATE'S CONTENTION THAT A STOP WOULD BE PROPER, EVEN IF THE MALFUNCTION POSES NO SAFETY HA ZARD OR OTHERWISE VIOLATES THE LAW, AND THAT IS WHAT THE STATE IS ARG UING H ERE.

JUSTICE: ARE YOU MAINTAINING THAT IN THIS ACTION THE POLICE OFFICER OPERATED IN BAD FAITH? THAT THIS WAS A --

THAT WAS NOT AN ISSUE THAT WAS RAISED HERE. I AM ARGUING THAT --

JUSTICE: THERE HAS BEEN NO DETERM INATION --

THERE HAS BEEN NO DETERMINATION AND IT IS NOT A PART OF MY ARGUMENT .

JUSTICE: GOING BACK TO WHERE YOU STARTED IN THE SITUATION CONTAINING DOCTOR, YOU WOULD AGREE THAT, IF THERE WAS A CRACK LIKE IN THE PA NE THAT YOU SHOWED US , THAT THE OFFICER WOULD EXERCISE JUDGMENT , GOOD JUDGMENT IN STOP PING THE PERSON. DO YOU AGREE?

CORRECT.

JUSTICE: BUT REA LLY WHAT IT BO ILS DO WN TO IS THAT YOU SAY THIS OFFICER EXERCISED BAD JUDGMENT, BECAUSE YOU STRING THESE STATUTES TOGETHER AND A 7-INCH CRACKIS NOT AS DANGEROUS AS THAT CRACK. THAT IS WHAT YOU ARE ARGUING , ISN'T IT?

THE QUESTION , TH OUGH , OF WHETHER THE OFFICER'SJUDGMENT WAS GOOD OR NOT IS NOT THE ISSUE. THE QUESTION IS WAS THERE OBJECTIVELY A FOUNDED SUSPICION THAT A STATUTE WAS BEING VIOLATED, AND THERE I S NOT BECAUSE THE CRACK AL ONE DOES NOT VIOLATE STATUTE , ONLY IF IT RISES TO THE LEVEL THAT IT IS S O UN SA FETHAT IT ENDANGERS A PERSON OR PROPER TY.

JUSTICE: YOU YOUR ANSWER ERRING THE QUESTION ON THE BACK END, A FTER THE STOP OF THE VEHICLE AND AFTER THE OFFICER DETERMINED THE EXTENT OF THE CRACK. IT SEEMS LIKE WE HAVE TO DETERMINE IT F ROM AN OBJECTIVE POINT OF VI EW , A N OFFICER WH O IS L O OKING A T A CAR PASSING BY, WITHOUT INSPECTING IT YET , AND DETERMINING THAT THERE IS A CRACKED WINDSHIELD , BUT DOESN'T KNOW THE EXTENT OF THE CRACK . A REASONABLE OFFICER , WHEN HE SEES A CRACKED WINDSHIELD , WHY DO ESN'T THE OFFICER AT LEAST HAVE A SUSPICION FOR A JUSTIFIABLE STOP THAT THE CRACKED WINDSHIELD POSES A SAFETY HAZARD AND THEN , LIKE THE ELEVENTH CIRCUIT SAID , U PON INSP ECTION HE MAY DETERMINE THAT HE WAS WRONGAND YOU ARE OKAY , BUT AT LEAST IT HAS MEANINGFUL SUSPICION EN OUGH TO JUSTIFY THE STOP?

A COUPLE OF ANS WERS TO THAT. FIRST OF ALL IF THE CRACK , IF THE OBSERVATION BY THE OFFICER IS OF A CRACK OF THAT SUFFICIENT N ATURE THAT IT COULD RISE TO THE LE VEL TO MAKE IT UNSAFE, THEN HE COULD MAKE THE STOP AND LATER ON DETERMINE IT. BUT THESE OFFICERS DIDN 'T SAY THAT AS PART OF THEIR THINKING. THEY SAID THERE IS A CRACK. WE HAVE A RIGHT TO STOP THEM. WE ARE STOPPING THEM AND THEPURPOSE IS NOT FOR A WARNING.

CHIEF JUSTICE: WHAT WASTHE OTHER FACT THAT TO ME R AISES SOME CONCERNS IS THAT THEY KNEW THIS WAS A DEFENDANT WHO WAS ON PROBATION.

WELL , I DIDN'T SAY THAT IT WASN'T PROTECTURAL. I SAID THAT THAT IS NOT PART OF MY ARGUMENT. I THINK, READING BETWEEN THE L INES HERE , THERE IS BASIS TO BE LIEVE THAT MAYBE IT WAS .

CHIEF JUSTICE: DID THEY SAY THEY KNEW HIM? WHAT WAS THE TESTIMONY ON IT?

THERE WAS EVIDENCE THAT THEY KNEW HI M.THERE WAS EVIDENCE THAT HE HAD BEEN STOPPED BEFORE FOR THIS. THERE IS EVIDENCE --

CHIEF JUSTICE: FOR WHAT?

FOR THE CRACKED WINDSHIELD.

CHIEF JUSTICE: THE SAME CRACK?

YE S. THE SAME CRACK, WHICH GETS TO PART OF MY ARGUME NT. IF YOU ALLOW STOPS LIKE THIS , THEY CAN K EEP STOPPING SOMEONE LIKE THIS AND KE EP ISSUING WARNIN GS , AND HE DOESN'T HAVE TO DO ANYTHING ABOUT IT .

JUSTICE: CAN HE GET IT FIXED ?

I AM NOT SURE IF THERE WAS A SPECIFIC FINDING BUT I AM NOT ARGUING --

JUSTICE: HE DID NOT FIND IT?

HE DID NOT FIND IT. THAT'S CORRECT.

JUSTICE: DID THE OFFICERS ENUNCIATE THAT , I N THEIR PERCEPTION, THAT THIS WAS AN UNSAFE CONDITION OR DA NGER , AND IS THAT IMPORTANT OR IS IT NOT IMPORTANT? DO THEY NEED TO BE ABLE TO AT LEAST SAY THAT AS A CONDITION PRECEDENT TO MAKING THE STOP ?

THE OFFICERS DID NOT SAYTHAT. THE OFFICER SAID THAT THEY SAW A CRACKED WINDSHIELD , AND THEY DECIDED TO STOP H IM. I THINK IT IS IMPORTANT. I WANT TO TAKE THAT ONE STEP FURTHER.THE CERTIFIED QUESTION TALKSABOUT WHETHER AN OFFICER S EES A CRACK BUT HAS NOT YET ASCERTAINED THE LENGTH OF IT. THERE IS NOT HING IN THIS RECORD TO SU PPORT THE CONTENTION THAT T HEY HAD NOT ASCERTAINED THE LENGTH OFIT. THEY BOTH SAID WE SAW THECRACK.WE MA DE THE STOP. THEY WEREN'T STOPING IT TO INVESTIGATE.THEY WERE STOPING IT BECA USE THERE WAS A CRACK THERE. THE OFFICER WAS AS KED SPECIFICALLY THIS DOESN'T OBSTRUCT THE DRIVER'S VIEW , DOES IT?

AND HE SAID -- DOES IT? AND HE SAID , NO , AS FAR AS I KNOW. AND THERE WAS NEVER ANY THINKING THAT THIS SH OULD BE ON A FOUNDED SUSPICION BASIS.

JUSTICE: BUT BASED UPON THE CURRENT STATUS OF THELAW THAT REAL LY IT IS A OBJECTIVE BASIS THAT YOU YOU ARE USING.

IT IS A O B JECTIVE BASIS , AND THE OBJECTIVE BASIS , THEDISCUSSION OF THAT SHOULD BE THAT, IF THERE IS A CRACK THAT IS OF SUFFIC IENT LENGTH OR LOCATION OR WHAT EVER OTHER FACTORS IT MAY BE, TO GIVE RISE TO A FOUNDED SUSPICION THAT THE VEHICLEIS SO UNSAFE AS TO END ANGER A PERSON OR PROPERTY , A STOP CAN BE MADE , BUT NOT E V ERY CRACK IS GOING TO DO THAT.

CHIEF JUSTICE: I WANT TO REMIND YOU YOU ARE IN REBUTTAL. YOU ONLY SA VED --

JUSTICE: YOUR LAST STATEMENT , YOU SAID THAT THERE IS A CRACK THAT IS SUSPICIOUS LY LENGTHY SO THAT THE PO LICE OFFICER DETERMINES MAYBE IT IS UNSAFE, ONE CAR GOING 55 ONE WAY AND THE OTHER GOING 5 5 THE OTHER WAY , H OW IS THAT OFFICER GOING TO DETERM INE IN THAT M ILLIE SE COND WHETHER IT I S SUFFICIENTLY LENGTHY TO B E UNSAFE , UNTIL HE STOPS THE CAR AND INSPECTS IT?

IT DEPENDS ON WHAT HE OBSERVES.

JUSTICE: BY VIRTUE OF A CRACKING WINDSHIELD AND STOP DUE TO A REASONABLE SUSPICION THAT IT IS UNSAFE TO JUSTIFY INS PECTION OF THE VEHICLE TO DETERMINE WHETHERIT IS UNSAFE.

I WOULD SUGGEST TO YOU YOU THAT IT IS NOT AND I WOULD POINT TO YOUR HONORTHAT, BETWEEN THE TWO OF US WE HAVE C ITED 19 OUT OF JURISDICTION CA SES AND NOTONE OF THOSE CASES HO LDS THAT A MERE CRACK ALONE PROVIDES A FOUNDED SUSPICION.IT HAS TO BE A NATURE THAT A F OUND SUSPICION IS G IVEN UNDER THE STATUTE.

JUSTICE: IF WE I N FACT SAY THAT IT IS SUFFICIENT IF YOU OBSE RVE ANY CRACK ON A WINDSHIELD, TO MAKE A STOP, WHA T WOULD YOU SU GGEST WOULD BE THE S COPE OF THAT STOP O R HAVE YOU GHACHB ANYCONSIDERATION?

WELL , A CTUALLY -- HAVE YOU GI VEN THAT ANYCONSIDERATION?

WELL, AC TUALLY THE PURPOSE THAT THE STATE IS RELYING ON TO DO THE STOP IS NOT TO G RANT THE STOP . IT IS NOT T O DEFINE THE OFFENSE.IT IS FOR THE P URPOSE OF REQUIRING INSPECTION AND T ESTING, AND I WOULD SUGGEST THAT THE EXTENT OF IT BE LIMIT TO DO THAT. I WOULD ALSO SUGGEST THAT, BECAUSE IN THIS CASE IT WAS NOT STOPPE D FOR THAT PURPOSE , TO WHATEVER EXTENT THERE IS S OME STATUTORY AUTHORIZATIONTHAT IS HE LD TO OVERRIDE THE CONSTITUTION, IT SHOULD B E LIMITED TO THAT P URPOSE , AND SINCE THE STOP WASN'T MADE FOR THAT PU RPOSE , THAT SHOULD CONSTITUTE A BASIS FOR SUPPRESSION. I WOULD LIKE TO RESERVE THE TIME THAT I HAVE LE FT.

CHIEF JUSTICE: THA NK YOU.

MAY IT PLEASE THE COURT. MY NAME IS MARILYN BEC CUE AND I REPRESENT THE STATE OF FLORIDA.THE PETITIONER WANTS THIS COURT TO HOLD THAT A LAW ENFORCEMENT OFFICER MUST WAIT UNTIL A CAR IS IN AN OBVIOUSLY UP SAVOR IMMEDIATELY DANGE ROUS CONDITION, BE FORE HE OR SHE STOPS THE CAR FOR THE CRACKED WINDSHIELD.

CHIEF JUSTICE: WOULD YOU GIVE THE FACTS , EXACTLY WHAT THE POLICE OFFICER SAID AND WHAT THE TESTIMONY, AND ALSO I WANT TO KNOW THE SEC OND DISTRICT'S OPINION ABOUT THEFACT THAT THEY HAD STOPPED THIS VEHICL E FOR THE SAME PROBLEM BEFORE.

SURE. OFFICER HARRISON AND CE NTO WERE DRIVING TOGETHER. OFFICER HAR RISON WAS A FI ELD TRAINING OFFICER, SO THEY WERE DRIVING TOGETHER. OFFICER SE NNA , I B E LIEVE THE DISTINCTION BETWEEN THE TWO OFFICERS' TESTIMONY WAS ONE SAID HE SAW THE CRACK AS THE C AR WAS DRIVING BY AND ONE SAID HE S AW THE CRACK WHILETHEY WERE BE HIND THE VEHICLE AND THAT WAS REALLY THEBASIS OF THE ARGUMENT BELOW. THE BASIS OF THE ARGUMENT BELOW WAS THE CONTRADICTION IN THE OFFICER 'S TESTIMONY.

CHIEF JUSTICE: HOW WASWERE THE VEHICLES DRIVESOMETHING.

I DON'T THINK THERE WASANY TESTIMONY AS TO HOW WAS THE VEHICLE WAS DRIVING, BUT IT SO UNDS LIKE IN A RESIDENTIAL NEIGHBORHOOD , S O THEY WERE N'T ON A HIGHWAY. THEY BOTH SAW THE CRACKEDAND THAT WAS THE REASON THAT THEY PULLED THE CAR OVER. THEY WOULD NOT HAVE PULLED THE CAR OV ER FOR ANY OTHERREASON, EXC EPT FOR THEY SAW THE CRACK.

JUSTICE: AND THERE IS A F AIR READING OF THE RECORD THAT THE CONCEPT OF DANGER OR SAFETY WAS NOT PART OF THAT DESCRIPTION ? THEY SAW A CRACK. THEY DIDN'T REALLY GET INTO WE THOU GHT IT WAS UNSAFE OR ANYTHING LIKE THAT.

NO. THAT NEVER CAME UP IN RELATIONSHIP TO THE CRACK. THE BASIS OF THE MOTION TO SUPPRESS IS REALLY THAT THE OFFICERS COULDN'T HAVE SEENWHAT THEY CLAIM THEY SAW F ROM WHERE THEY WERE.

CHIEF JUSTICE: AND THEN THE OFFICERS, HOW DID THE TESTIMONY COME OUT THAT THEY HAD STOPPED HIM FOR THIS SAME PROBLEM BEFORE?

I BELIEVE IT WAS ON CROSS-EXAMINATION THAT THEY WERE ASKED WHETHER OR NOT , I THINK IT WAS THE SAME OFFICERS STOPPED , I KNOW WHAT IT WAS. THE PETI TIONER STATED THATHE WAS A WARE THAT THE WINDSHIELD WAS CRACKED, BECAUSE HE HAD BEEN STOPPEDBEFORE.

CHIEF JUSTICE: WAS HE GAIN WARNING ? -- WAS HE GIVEN A WARNING?

THE RE CORD DOESN'T SHOW.

CHIEF JUSTICE: WHAT WAS THE FI RST THING THEY DIDAFTER THEY STOPPED HIM?

AFTER THEY STOPPED HIM , THEY APPROACHED THE CAR. THEY OBTAINED HIS INFORMATION, AS FAR AS HIS DRIVERS LICENS E AND WHAT NOT. IT IS IM PORTANT TO REMEMBER THAT OFFICER SEN NA WAS IN TRAINING, BECAUSE THAT IS WHY BOTH OFFICERS WENT BACK AND THEN HE STAYED WITH THE CAR WHILE THE OTHER OFFICER WENT BACK TO CH ECK .

CHIEF JUSTICE: DID HE KNOW THE DEFENDANT AND THAT HE HAD A PR IOR FELONY?

I THINK THEY KNEW THE DEFENDANT AND THAT HE HAD A PRIOR FE LONY .

CHIEF JUSTICE: WERE THEY CHECKING HIS LICENSE TO MAKE SURE IT WAS VALID?

THEY WERE CHECKING HIS LICENSE TO SEE IF IT WAS VALID. AND THE OFFICER EXPLAINED TO THE PETITIONER THAT HE WASG OING TO ISSUE HIM A WARNING REGARDING THE CRACK AND THE FACT THEY WEREN'T WE ARING THEIR SEAT BELTS, BUT BEFORE HE GET S THAT IN FORMATION OUT , OFFICER POINTS OUT THAT THERE WAS A R I FLE IN THE BACKSEAT, AND AT THAT POINT OFFICER SAFETY WAS THE MAIN CONCERN.

JUSTICE: WAS THAT THE POINT WHEN THEY TOOK HIM OUT OF THE VEHICLE, OR WAS HE IMMEDIATELY TA KEN OUTFIT VEHICLE WHEN THEY MADE THE STOP?

HE WAS TAKEN OUT OF THE VEHICLE WHEN THEY SAW THE GUN , WHEN THEY APPEARED - -

JUSTICE: YOU STARTED OUT YOUR ARGUMENT SAYING THIS WAS AN OBVIOU SLY UNSAFE WINDSHIELD. TELL ME WHAT WAS SO OBVIOUSABOUT THE UNSAFETY OF THE WINDSHIELD.

WELL , THE STATE'S POSITION IS N'T THAT THIS WAS AN OBVIOU SLY UNSAFE WINDSHIELD. WHAT THE STATE'S PO SITION IS,IS THAT THE PETI TIONER WANTSTHE COURT TO HOLD THAT HE HAS TO WAIT UNTIL IT IS OBVIOUSLY UNSAFE. THE STATE'S POSITION IS ACRACK IN A WINDSHIELD IS UNSAFE. THE QUESTION THEN BECOMES TO WHAT EXTENT IS IT UNSAFE , AND THAT IS WHY LAW ENFORCEMENT --

JUSTICE: YOU YOU SAY ANY CRACK IN A WINDSHIELD. OFTEN WE RIDE DOWN THE R OAD AND A ROCK WILL HI T A WINDSHIELD AND MAKE A SMALLCRACK IN THE WINDSHIELD. SO ANY CRACK, EVEN A CRACKLIKE THAT , IS AN OBVIOUSLY UNSAFE WINDSHIELD AND AN OFFICER HAS THE RIGHT TO STOP YOU.

ANY CRACK IS A POTENTIALALLY VERY UNSAFE WINDSHIELD. THAT IS WHY THE OFFICER --

JUSTICE: IS THAT THE CASE WITH ALL KINDS OF EQUIPMENT, BUT PO TENTIALLY , WHAT IS THE STATE'S VI EW AS WE PROBE THE PARAMETERS OF THIS BUMPER WITH A DE NT? I MEAN POTENTIALLY THAT BUMPER COULD FALL OFF AT SOME POINT , BUT HOW MANY BUMPERS ARE AR OUND THE STATEOF FLORIDA WITH SOMETHING WRONG WITH THEM, AND ARE WE GOING TO TURN LAW ENFORCEMENT , IS IT THE STATE'S POSITION THAT LAW ENFORCEMENT SHOULD HAVE THAT ENCOUNTER ? SHOULD STOP OR HAVE THE R IGHT TO STOP FOR WHATEVER E LSE OCCURS.

WELL , OBVIOUSLY EVERY CASE TURNS ON ITS OWN FACTS , BUT TO ADDRESS THE QUESTION THAT I THINK YOU ARE QUESTIONING AT IS THERE IS A DIFFERENCE BETWEEN A COSMETIC DEFE CT AND A STRUCTURAL DEFECT. A SMALL DENT IN YOUR BUMPER MIGHT BE A COSMETIC DEFECT THAT YOU MIGHT LIKE TO GET FIXED BUT THAT BUMPER IS GOING TO PERFORM THE FUNCTION FOR WHICH IT IS THERE.

CHIEF JUSTICE: THEPROBLEM I HAVE IS THIS ISSUE OF JUDGMENT. WE NEED TO BE GUIDED BY WHAT THE LEGISLATURE THINKS IS UNSAFE , AND WE HAVE SEEN OUT-OF-STATE STATUTES THAT T ALK A BOUT YOU CAN HAVE THIS MUCH OF A CRACK OR NOT . SHOULDN'T THE LEGISLATURE BE THE ONES TO DECIDE WHAT IS UNSAFE AND NOT , AND WHAT HAVE THEY SAID ABOUT SAFETY AND WINDSHIELDS IN THIS FLORIDA STATUTE?

WHAT THEY HAVE SAID,FIRST OF ALL IN 31 6, IS THAT YOU ARE REQUIRED TO HAVE A WINDSHIELD ON YOUR CAR. THE N THEY HAVE 316.610.

CHIEF JUSTICE: HE HAS WINDSHIELD.

AND YOU ARE REQUIRED TO HAVE A BUMPER.

YES. HE IS REQUIRED TO HAVE A BUMPER AS WE LL.

JUSTICE: COM PARE THE TWOAS YOU GO THROUGH THE STATUTE.

WITH THE WIND HE WOULD WITH THE WINDSHIELD IT IS A STRUCTURAL PROBLEM.

CHIEF JUSTICE: I AM ASKING WHAT DOES THE LEGISLATURE SAY SO I KNOW TOMORROW WHEN I GO OUT AND I HAVE A CRACK IN MY WINDSHIELD , IF I AM DRIVIN G, WHETHER MY DRIVING IS LEGAL IF I HAVE A CRACK IN A WINDSHIELD.

LEGISLATURE SAYS THAT YOU HAVE TO HAVE A PROPER WINDSHIELD AND EQUIPMENT NEEDS TO BE IN PROPER ADJUSTMENT AND REPAIR OR YOU WILL GET STOPPED .

CHIEF JUSTICE: THERE FOR GOING BACK TO WHAT JUSTICE, IF YOU HAVE A DENT IN THE BUMPER, THAT IS NOT IN PROPER REP AIR SO I CAN'T DRIVE WITH A DENT IN MY BUMPER?

PROPER REPA IR IS IN GO OD CONDITION FOR PERFORMING THE FUNCTION FOR WHIC H IT IS THERE.

JUSTICE: WHERE DOES THE STATUTE SAY THAT I S I T I N A STATUTE ? TELL HER STATUT ORY , THECHIEF, WHER E WE CAN LOOK SO WE KNOW.

THERE IS NO SPECIFIC DEFINITION FOR THE CONDITIONOF A WINDSHIELD, BUT I THINK IT IS IMPORT ANT THAT THE LEGISLATURE HAS ALSO STATED THAT THE DEDUCTIBLE OF YOUR INSURANCE IS NOT GOIN G TO BE APPLIED TO GET YOUR WINDSHIELD REPLACED AND IN THAT STATUTE THEY DO N'T SAY IT HAS TO BE A TEN-INCH CRACK OR 3-INCH CRACK. IT SAYS IF YOU NEED YOUR WINDSHIELD REPL ACED, IF YOU HAVE A CRACK IN YOUR WINDSHIELD, YOU CAN GET IT REPLACED AND IT IS NOT GOING TO COST YOU ANYTHING. YOUR INSURANCE IS GOING TOPAY FOR IT.

JUSTICE: ANY CRACK, I T DOESN'T MATTER, THEINSURANCE COMPANY WILL REPLACE YOUR WINDSHIELD .

THAT IS MY UNDERSTANDING.

JUSTICE: THAT IS WHAT YOU ARE TA LKING ABOUT 627.728-8.

CORRECT.

JUSTICE: SO THE POSITION OF THE STATE IS IT ISN'T AN ISSUE OF JUDGMENT THAT THEY SAW THE 7 OR 8-INCH CRACK AND THEY HAD TO SEE WHETHEROBVIOUSLY IT IS UNSAFE. THIS I S EASY THAT EVERYBODY DRIVING A VEHICLE NEEDS TO KNOW OR SHOULD KNOW FROM THE FLORIDA STATUTES THAT ANY CRACK, NO MAT TER WHERE IT IS , NO MATTER WHAT IT LOOKS LIKE , IS A T RAFFIC VIOLATION.

CORRECT. AND

CHIEF JUSTICE: BE CHARGED WITH WHAT SPECIFIC STATUTE?

316.610 SUBSECTION 1 OR 2 , BECAUSE SUBSECTION 2 SAYS IF , A FTER INS PECTION THE CAR IS FOUND TO BE UNSAFE, THE OFFICER CAN DO A NUMBER OF THINGS. IMPOUND THE VEHICLE IF IT IS IMMEDIATELY DANG EROUS , IF IT IS , A HAZARD FOR PEOPLE ONTHE ROAD , OR IF THE E QUIPMENT IS NOT IN PROPER ADJUSTMENT OR REPAIR , THEY CAN ISSUE A NOTICE TO REPAIR .

JUSTICE: SO IF THE OFFICER STOPS THE CAR AND DETERMINES THAT THIS CRACK CAUSED BY THE ROCK HI TTING THE WINDOW IS NOT, DOES NOT PRESENT A SAFETY HAZARD , THEN I CAN CONTINUE TO DRIVE WITH MY CAR I N THAT CONDITION.

IF IT DOESN'T PRESENT AN IMMEDIATELY DANGEROUS CONDITION. AND THEY WILL TELL YOU, THOUGH, YOU NEED TO GET IT FIXED AND THAT IS THE POINTOF THE STATUTE , I S IF THEY HAVE DEFINED EVERY CRACK WITH IMMINENT DANGER , THEY WOULD HAVE TO IMP OUND ARRIVE CAR , BUT THERE ARE CERTAINCRACKS THAT YOU CAN CONT INUE TO DRIVE BUT I AM ADVISING YOU THAT YOU NEED TO GET THIS FIXED BEFORE YOU DO PRESENT AN IMM EDIATE DANG TORY INDIVIDUALS ON THE RO AD.

JUSTICE: WE WANT A POLICE OFFICER DO ING THAT K IND OF ACTIVITY WITH ALL OF THECRIME THAT IS GOING ON , WE WANT POLICE OFFICE RS TO STOP PEOPLE WH O HAVE ANY KIND OF CRACK IN THEIR WINDOW ANDTELL THEM , THIS IS UNSAFE OR THIS IS NOT UNSAFE , BUT MAYBE YOU SHOULD GO GET A NEW WINDOW.

YES. THAT IS PART OF THEIR FUNCTION. YOU KNOW, THAT , INTERESTING THAT YOU POINT THAT OUT BECAUSE THIS WAS NOT A STATUTE THAT WAS ENACTED T O ASSIST LAW ENFORCEMENT OFFICERS INVESTIGATING CRIMES OR OB TAIN ING EVIDENCE OF CRIMES . IT IS A SAFETY --

JUSTICE: BUT THEY CAN USE IT THAT WA Y.

THEY DON'T HAVE TO TU RN A B LIND EYE TO EVIDENCE OF CRIME , IF AFTER THEY STOP SOMEONE THEY DETERMINE THERE IS A CRIME BEING COMMITTED.

JUSTICE: WHERE ARE LAW ENFORCEMENT OFFICERS GUIDED IN THIS. LET'S SAY YOU HAVE A SMALL PEBBLE HIT YOUR WINDSHIELD U PPER RI GHT CORNER AND A S THE OPP ONENT SAYS IT I S COVERED B Y THE ADVISE OR THAT IS PUT DO WN. ISN'T IT -- BY THE VICE OR THAT IS -- BY THE VI SOR THAT IS PUT DOWN . ISN'T IT TRUE THAT YOU NEED A WINDSHIELD TO ALLOW YOUFREE AND EFFECTIVE V UFT T RAFFIC AND THERE IS NO EVIDENCE THAT THIS WINDSHIELD IS INEFFECTIVE FOR THAT PURPOSE?

THE NEXT TIME IT GE TS HIT , IT IS GOING TO IMMEDIATELY POSE A DANGER TO THE INDIVIDUALS .

CHIEF JUSTICE: I SN'T THAT SOMETHING THAT THE LEGISLATURE WOULD HAVE INTENDED? WOULDN'T THE LEGISLATURE SAY THAT ANY VEHICLE WITH A CRACK OF ANY LENGTH IS NOT IN GOOD REPAIR? THAT IS A PRE TTY S IMPLE STATEMENT TO MAK E, BECAUSE IDON'T KNOW . I AM NOT THE EX PERT T O KNOW THAT, WELL, ONE LI TTLE CRACKLEADS TO A SH ATTER ING IF YOU GET BUMPED FROM BE HIND , AND BECOMES A SIGNIFICANT SAFETY HAZARD OR WHETHER THERE IS SHATTERPROOF GLASS ON THESE WINDSHIELDS , SO REALLY A CRACK DOESN'T REALLY CAUSE A PROBLEM, BECAUSE IT IS NOT EVER GOING T O SHATTER I N THEWAY , AND THAT TO ME GOES BACK TO BEING A LEGISLATIVE DETERMINATION , AND MY CONCERN IS THAT W E DON'T WANT TO TURN POLICE OFFICERS INTO SAFETY INSPECTORS , HAV ING TO MAKE JUDGMENTS THAT THIN GS IN WHICH THEREARE NO CRITERIA LI STED.

WELL , THE LEGISL ATURE HAS MADE A DETERMINATION. THEY HAVE ALLO WED LAW ENFORCEMENT OFFICERS TO USE THEIR DISCR ETION IF AN EQUIPMENT IS NOT IN PROPER REPAIR AND AD JUSTMENT , AND IUNDERSTAND YOUR CONCERN, CERTAINLY , BUT I DON'T THINK IT IS THIS KIND OF UNBRIDLED DISCRETION OR UN FETTER ED DISCRETION THAT WE DON'T WANT LAW ENFORCEMENTOFFICERS TO V THEY DO NEED TO HAVE GUIDANCE AND REASONABLE CAR THAT IT IS NOT IN PROPER ORDER AND REPAIR, AND WE HAVE T O REMEMBER THAT LAW ENFORCEMENT OFFICERS ARE OUT O N THE ROAD EVERYDAY. THEY ARE IN CON TACT WITH CARS. THEY --

JUSTICE: WHAT IS A POLICE OFFICER GOING TO USE , NOW THAT SOMEBODY HAS BEEN STOPPED AND THEY SEE A WHOLE VARIETY. THERE IS A COUPLE OF IN CHES OF A HAIRLINE CRACK. THERE IS THE BB GUN TYPE OF THING HE RE. NOW , WHERE DO THE POLICE OFFICERS GET THE EXPERTISETO KNOW IF THAT WINDSHIELD CONTINUES DOWN THE ROAD , THAT AT SOME POINT IT IS GOING TO IMP LODE OR EXP LODE , WHICH WAS THE POINT THAT YOU YOU ARE MAKING, THAT IS THAT , HOW IS THE POLICE OFFICER TO MAKE THAT EVALUATION?

WELL , I THINK THEY NEED TO USE REASONABLE DISCRETION WHEN THEY MAKE THAT EVALUATION .

JUSTICE: DO THEY KNOW ANYTHING ABOUT NONSHATTER OR SHATTER -PROOF GLASS AND THEFACT THAT YOU CAN GO FOR 100 YEARS WITH A HAIRLINE CRACK AND NOTHING WILL CAUSE THAT WINDSHIELD TO , WHERE DO THEY GET THE KNOW LEDGE, THEN , AND IN A CASE LIKE THIS , FOR INSTANCE, HOW DO THEY KNOW WITH THIS 7- INCH HAIRLINE CRACK IN THE U PPER RIGHT CORNER, WHETHER TO ISSUE A WARN ING OR TO FI ND THAT IS A VIOLATION OF THE STATUTE?

THAT IS A SI TUATION THAT OCCURS AFTER THE STOP HAS ALREADY OCCURRED.

JUSTICE: WHERE DO THEY GET THE KNOWLEDGE OF THAT?

FROM THEIR EXPERIENCE, AND I THINK THAT IS THEREASON WHY THE S E CTOR --

JUSTICE: WHAT EXPERIENCE DO THEY HAVE?

WE ALL HAVE EXPERIENCE WITH CRACKS IN GLASS AND WINDSHIELDS.WE KNOW THEY DON' T GET SMALLER , THAT THEY GETBIGGER AND THEY DON'T GO AWAY ON THEIR OWN.

JUSTICE: HOW DO WE KNOW THEY ALL GET BIGER?

WE ALL HAVE WINDSHIELDS AND WE ALL KNOW THAT , ON CEYOU HAVE A CRACK IN THE G LASS THE INTEGRITY OF THE GLASS IS COMPROMISED , AND I THINK IT IS IMPOR TANT TO NOTE THAT THE WAY THE STATUTE IS W RITTEN, ANYCRACK IS GOING TO AND VIOLATION THAT THE Y CAN STOP YOU FOR AND THEN MAKE A DETERMINATION LATER , SO WE DON'T HAVE TO HAVE THE GUESSING ABOUT WHETHER IT IS S AFE , UNSAFE OR WHAT EVER, BEFORE AN OPPORTUNITY TO ACT UALLY LOOK AT THE CAR. IF IT IS OBVIOUSLY UNSAFE , SUCH AS THAT PICTURE RIGHT IN FRO NT OF THE DRIV ER'S VIEW, THEN THEY CERTAINLY WOULD IMP OUND THE CAR .

CHIEF JUSTICE: DO YOU AGREE WITH MR. M USTO THAT ALL OF THE OUT-OF-STATE CASES, THAT IN ALL OF THE OUT-OF-STATE CASES, THERE IS NOT ONE THAT SAYS THAT S IMPLY A CRACK IN A WINDSHIELD IS A BASIS FOR A T RAFFIC VIO LATION ?

WELL , I DON'T NECESSARILY AGREE WITH THAT.

CHIEF JUSTICE: WHAT CASE SAYS WHAT YOU ARE AS KING US TO HO LD?

THE OUT-OF-STATE CASES, THE ONES THAT WERE CITED , PARTICULARLY THE KENTUCKY ONE THAT WAS M OST RECENTLY CRIED, THEY TALK ABOUT THEIR STATUTES, BUT THEY DON'T -- RECENTLY CITED, THEY TALK ABOUT THEIR STATUTE BUT DON'T HAVE A SA FETY INSPECTION, S O THEY HAVE TO RELY ENTIRELY ON THE OTHER PROVISIONS OF THE CHAPTER.

CHIEF JUSTICE: NOW WE GO BACK TO THE ISSUE OF STATUTORY CONSTR UCTION, SO IF WE DON'T AGREE WITH YOUR INTERPRETATION OF THE STATUTE THAT, REALLY , THEYCAN , THEY HAVE BECOME , TAKEN OVER FOR THE INSPECTION PEOPLE AND CAN STOP , EVEN IF , CAN THEY STOP IF THERE ARE BUMPERS THAT ARE I N DISREPAIR?CAN THEY STOP FOR THAT, TOO?

IF THE BUMPER IS F ALLING OFF.

CHIEF JUSTICE: BUT THEY CAN'T TELL BECAUSE IT IS GOING 40 MILES AN HOUR. THEY SEE A DENT AND GO O OPS IT IS A DENT , AND TO STOP THEM AND SEE IF IT IS IN GOOD REPAIR. CAN THEY DO THAT?

YOU HAVE TO CONSIDER THE REASONABLENESS OF THE CONDUCT AND ONCE IT TURNSOUT IT WAS UNREASONABLE FOR THE LAW ENFO RCEMENT OFFICERTO BELIEVE THAT THAT BUMPER WAS I N DISREPAIR , THAT IS A DIFFERENT ISSUE.

CHIEF JUSTICE: HER E 7 OR 8 INCHES , NOT A LO T OF INCHES, DO YOU AG REE ON THE PASSENGER SIDE UP NEAR WHERETHE VI SOR WOULD BE?

IT KI ND OF CAME DOWN DIE AGO NATURA LLY. CHIEF -- DIAGONALLY .

CHIEF JUSTICE: AND THEY HADN'T GO TTEN IT REP LACED ONCE THE LAST STOP --

NO TESTIMONY.

CHIEF JUSTICE: NO TESTIMONY THAT THE STATE E LICITED THAT THEY WERE CONCERNED ABOUT THE SAFETY OF THIS VEHICLE.

THAT IS BECAUSE THE MOTION TO SUPPRESS, WHEN IT WAS FILED AND WHEN IT WAS ARGUED IN THE T RIAL COURT, THAT WASN'T THE ISSUE THAT THEY WERE ARGUING. THE DEFENSE WASN'T S AYING YOU COULDN'T HAVE STOPPED ME BECAUSE IT WASN'T UNSAFE. WHAT THE DEFENSE'S ARGUMENT BASICALLY WAS , WAS THAT THE OFFICERS COULDN'T HAVE SEE N THE CRACK IN THE WINDSHIELD BEFORE THEY STOPPED THE CAR.

CHIEF JUSTICE: WELL, ISN'T THE STATE'S BURDEN SINCE THIS IS A WARRANTLESS SEARCH, TO PRO VE THAT THIS STOP WAS LAWFU L ? DO YOU AGREE WITH THAT?

YES.

CHIEF JUSTICE: SO THEREFORE IF THE STATE'S CONTENTION IS THAT THERE IS AUTHORITY UNDER THE STATUTE , IF THEY ARE CON CERNED ABOUT THE SAFETY OF T HE VEHICLE, SHOULDN'T THE STATE HAVE ELICITED THAT TESTIMONY?

WELL , IT IS THE STATE'S BURDEN TO SHOW THAT THE CONDUCT WAS REA SONABLE BECAUSE THAT IS WHAT THE FOURTH AMENDMENT OF THEUNITED STATES CONSTITUTION REQUIRES , REAS ONABLE CONDUCTON THE PART OF OUR LAW ENFORCEMENT OFFICERS. THE INTERPRETATION OF THESTATUTE THAT ALLOWS FOR AN OFFICER TO STOP A CAR IF THE EQUIPMENT IS NOT IN PROPER REPAIR, I S THE BASIS FOR THE STOP. IT IS NOT I N PROPER REPAIR. IT IS BROKEN. IT IS NOT IN THE CONDITIONTHAT IT IS SUPPOSED TO BE. THERE WOULD BE NO REASON TO HAVE A WINDSHIELD , IF WE WERE GOING TO ALLOW INDIVIDUALS TO HAVE WINDSHIELDS THAT ARE CRACKED.

CHIEF JUSTICE: IS D O CTOR STILL GOOD LAW?

WELL , WITH RESPECT TO THE EQUIPMENT DISCUSSION IN DOCTOR, OBVIOU SLY THE PRETEXT URAL ANALYSIS IS OBVIOUSLY NOT IN LAW , BUT THE REFLECT OR LI GHT ASSEMBLY, BECAUSE THE REFLECT OR WAS BROKEN , IT WAS NOT VIOL ATING THESTATUTE.NOBODY IS ARGUING THAT THE WINDSHIELD IS NOT REQUIRED EQUIPMENT, SO THAT IS ONE DISTINCTION IN DOCTOR. EVEN IF IT WAS AND THERE ARE CASES ABOUT THE LENS COVER OF THE LIG HT BEING CRACKED , AGAIN , WHE N YOU HAVE A CRACKIN A LENS COVER , THE TAILLIGHT , BRAKE LIGHT , WHATEVER IS STILL PERFORMING THE FUNCTION FOR WHICH IT IS THERE, STILL ABLE TO ADVISE PEOPLE THAT THE CAR IS STOPPING OR THAT YOU CAN SEE THE CAR IN THE DARK. THAT IS THE PURPOSE OF THE LIGHTS, SO EVEN IF THAT IS CRACKED , IT IS STILL F ULLY PERFORMING THE FU NCTION FORWHICH IT IS THERE.

JUSTICE: WAS THE WINDSHIELD PERFORMING ITSFUNCTION?

NO , IT IS NOT , IT IS INCAPABLE O F FULLY PER FORMING ITS FUN CTION ONCE IT IS CRACKED. THAT IS THE PROBLEM.

JUSTICE: CAN YOU ADDRESSBEFORE YOU SIT DOWN , THE STOP BEING ILLEGAL , WAS THERE SUFF ICIENT SI TUATION TO STATE V E RSUS PA RTY SO N?

NO. BECAUSE THEY DI DN'T PROLONGTHE STOP IN ANY WAY , TO OBTAIN EV IDENCE AFTER CRIME. IT WAS UNFOLDING MOMENTARILY BEFORE THEM , BEFORE HE WAS EVEN ABLE TO STOP HIS WARNING, THEY DISCOVERED THE GUN , SO I DON'T THINK THAT THERE IS ANY ISSUE WITH REGARD TO THE STOP BEING UNLAWFULLY PROLON GED.

CHIEF JUSTICE: THEY DISCOVERED AN OUTSTA NDING WARRANT?

NO.

JUSTICE: WH Y WAS THERE A BACKUP? IS IT NORMAL PO LICE PROCEDURE THAT YOU MAKE A TRAFFIC STOP, WAS THIS DAY OR NIGHT?

FIVE O'CLOCK.

FIVE O'CLOCK IN THE AFTERNOON, LIGHT OUTS IDE.

UM-HUM.

JUSTICE: SO IN A NORMAL TRAFFIC STOP D URING DAYLIGHT HOURS WHEN YOU SEE AN EQUIPMENT , ALLEGED E QUIPMENT MALFUNCTION, YOU YOU BRING BACK UPS TO THE SCENE?

PART OF THE REASON THERE WAS BACK UP IS OFFICERS HARRISON AND SE NN A WERE INFIELD TR AINING THAT IS WHY HE NEEDED THE BAC KUP , BECAUSE HE WAS TRAINING HI M TO DO V ARIOUS CHECKS.

JUSTICE: SO ANY TIME YOU ARE DOING TRAINING, NO MATTER HOW MINOR THE STOP I S, YOU YOU BRING BACK UP. IS THAT WHAT YOU ARE SAYSOMETHING.

I WO ULDN'T PRESUME T O TELL LAW ENF ORCEMENT OFFICERS HOW MUCH BACK UP IS AVAILABLE TO THEM DURING ANY TRAFFIC STOP, BEC AUSE ITHINK ANY TRAFFIC STOP IS A POTENTIALLY DANGEROUSCONDITION, BUT ONLY OFFICER MATTHEWS ARRIVE D WITH REGARD TO THE TRAFFIC STOP T WASN'T UNTIL AFTER THEY SA W THE GUN WHICH DID R AISE THEIR CON CERNS REGARDING SAFETY , THAT THE OTHER OFFICERS ARRIVED.

JUSTICE: WOUL D YOU H E LP M E A LITTLE BIT. IT APPE ARS WE NEED TO ADDRESS WHAT IS THE FUNDAMENTAL VA LUE THAT W E ARE LOOKING AT THAT IS IN QUESTION HERE , AND I THINKYOU WOULD AGREE THAT THE U.S. SUPREME COURT HA S TOLD US THAT THE RA NDOM STOPS CERTAINLY ARE NOT PERMISSIBLE. YOU AGREE WITH THAT.

I AGREE WITH THAT.

JUSTICE: AND PROBABLY THERE IS SOME FUNDAMENTAL V ALUE HERE THAT IT NOT B E STANDARDLESS WITH OUT CRITERIA . SHARE WITH U S YOUR VIEW FROMTHE STATE'S POSITION AS TO WHY, IF THERE IS NOT A STATUTORY DESCRIPTION SUFFICIENT TO CREATE A STANDARD THAT WE CAN ALL LOOK AT , THAT IT WOULD NOT FALL INTO BEC OMING A RAN DOM KIND OF JUST STOP PING WHOM EVER WITHOUT ANY, A STANDARDLESS, BASELESS , JUST I SAW THIS ON A CAR.

RIGHT. THE STATUTE DOES REQUIRE REASONABLE CAUSE, SO THERE IS A STANDARD THERE , AND WE DO HAVE A LE SSER EXPECTATIONOF PRIVACY IN OUR VEHICLES , AND ONE OF THE REASONS WE HAVE THAT LESSER EXPECTATION OF PRIVACY IS BECAUSE THEY ARE H I GHLY REGULATED BY BOTH STATE AND FEDERAL GOVERNMENT,SO IT ISN'T ANY INVASION OF ONE'S SENSE OF PRIVACY WHE N THEY ARE DRIVING DOWN THE ROAD, TO BE STOPPED FOR A M INOR , QUOTE UN QUOTE , CONSIDERED MI NOR EQUIPMENT DEFECT. WHEN YOU ACCEPT THE PRIVILEGE TO DRIVE IN THE STATE OF FLORIDA, WE ALSO HAVE TO AGREE TO A B IDE BY THE RULES, AND THE RULESREQUIRE THAT YOU HAVE A WINDSHIELD, AND THE RULES A LSO REQUIR E THAT , IF AN OFFICER HAS REASONABLE CA USE TO BE LIEVE THAT YOUR EQUIPMENT IS NOT IN PROPER REPAIR, HE OR SHE CAN