holding “an officer who realizes that his stop of a vehicle was mistaken—and who has no other cause for reasonable suspicion of the driver—has no authority to further detain the driver or his vehicle”
How later courts described this case
- holding “an officer who realizes that his stop of a vehicle was mistaken—and who has no other cause for reasonable suspicion of the driver—has no authority to further detain the driver or his vehicle”
- where the vehicle was stopped for having no operational taillights, but as the officer approached the vehicle he could see louvers over the taillights and that they were working
- noting the entire investigation of the basis for the stop was completed before the trooper ever interacted with the driver
- the fact that only a few minutes had passed between the illegal detention and the request for consent to search "weigh[ed] heavily against finding the taint cleansed"
Written by the judges who cited it.
The opinion
LUMPKIN, Presiding Judge:
Concur in Part/Dissent in Part.
11 I concur in the Court's decision to affirm the judgments and sentences in case No. CF-96-311. However, I am forced to dissent to the decision to reverse the judgments and sentences in Case No. CF-96-19.
T2 The only error in this case has been committed at the appellate level by refashioning a legal issue for this Court to adjudicate which is not supported by the evidence in this record. That appellate error is set out on page twelve of the Court's opinion, wherein it states,
*145 the issue presented is whether an officer who stops a vehicle based upon a reasonable but mistaken belief that the vehicle or its driver has violated or is violating a traffic law (or other law) can continue the traffic stop after the officer realizes his mistake, where no other justification for continuing the stop has yet emerged.
First, the Court disregards all of the operative language of the provisions of 47 O.S. 1991 , § 12-204, which provides in pertinent part as follows:
(a) Every motor vehicle, trailer, semitrailer and pole trailer, and any other vehicle which is being drawn at the end of a train of vehicles, shall be equipped with at least one tail lamp mounted on the rear, which, when lighted as hereinbefore required, shall emit a red light plainly visible from a distance of five hundred (500) feet to the rear, provided that in the case of a train of vehicles only the tail lamp on the rearmost vehicle need actually be seen from the distance specified. And further, every such above-mentioned vehicle, other than a truck tractor, registered in this state and manufactured or assembled after the effective date of this code, shall be equipped with at least two tail lamps mounted on the rear, on the same level and as widely spaced laterally as practicable, which, when lighted as herein required, shall comply with the provisions of this section. (emphasis added)
18 This statute has two specific requirements. First, the vehicle shall be equipped with tail lights and second, those tail lights shall emit a red light plainly visible from a distance of five hundred (500) feet to the rear. The Court wants to stop its reading of the statute with the requirement of having tail lights and disregard the requirement of being able to see the tail lights from a distance of five hundred feet. Granted, the evidence presented in this case was conflicting, however, it is up to the trier of fact to determine the weight and credit to be given to the testimony in adjudicating the issue presented. In this case, the trial judge did exactly that and there is evidence to support his decision. In this particular case, the basis for the stop was the belief that Appellant's vehicle had no tail lights. When the vehicle was stopped, the trooper saw the Tommy Lift on the back of Appellant's pickup. He also noted the fact that the Tommy Lift had louvers which covered the tail lights and blocked the amount of light that was actually coming from the tail lights. Under these facts, Appellant did have operational tail lights. However, they were not "plainly visible from a distance of five hundred (500) feet" as the louvers reduced the amount of light (thus making them visible only from close up). As a result, the initial stop was valid.
T4 Further, the detention after the stop was valid. Contrary to the statement near the top of page 16 of the opinion, the officer's reasonable suspicion had not been dispelled. The tail lights were not visible from a distance of 500 feet. Therefore, under Florida v. Royer, the officer could legally request Appellant step from his vehicle and produce his drivers license. Also, shining the flashlight into the vehicle did not render the officer's observations illegal. Gray v. State, 561 P.2d 83, 87 (Okl.Cr.1977) citing Elmore v. State, 511 P.2d 595 (Okl.Cr.1973).
[ 5 This case is distinguishable from United States v. McSwain, 29 F.3d 558 (10th Cir.1994), relied upon in the opinion. In McSwain, the trooper stopped the vehicle in order to determine the validity of the temporary registration sticker, The trooper observed that the temporary sticker was valid and had not expired. Yet the officer continued to detain and question the driver. The 10th Cireuit Court of Appeals found that once the temporary sticker was found valid, the purpose of the stop was satisfied. In the present case, the tail lights, while operational, did not comply with the statutory requirement of visibility from a distance of 500 feet. Therefore, there was an ongoing traffic violation and the purpose of the stop had not been satisfied. I reach this conclusion based upon the officer's testimony. That testimony was disputed by the defense through a private investigator who attempted to recreate the scene. The investigator testified he traveled northbound at the seene, while Appellant traveled southbound, and attempted to view the tail lights using his rear view mirror. *146 Whether he was actually able to have the same observation as the officer is a question of fact. Additionally, he contacted a recon-structionist and former Oklahoma Highway Patrol trooper to obtain a formula for determining how many feet per second a vehicle travels. Using this data, he concluded: 1) the officer would have been beyond 500 feet of Appellant's vehicle by the time he looked in his rear view mirror to check the tail lights; and 2) the officer should have been able to see the tail lights as he came within 500 feet while approaching the pickup to effect the traffic stop.
T6 The issue for our review is the validity of the trial court's ruling on a motion to suppress. The suppression of evidence is a judicial question and "we will not reverse the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the judge's findings." Battiest v. State, 755 P.2d 688, 690 (Okl.Cr.1988). Officer Kimrey's testimony supported the trial court's denial of the motion to suppress. Therefore, I would find the motion was properly denied and there is no reason to reverse the convictions in Case No. CF-96-19.
T7 As for the impoundment of the Corvette in Case No. CF-96-311, I would agree with the conclusion reached in the opinion that the impoundment was improper. Under Skelly, the impound was not legal as the car was on private property and the owner of the property had not requested the impoundment. I also agree with the opinion that the subsequent search of the car was not tainted by the improper impoundment, therefore the evidence seized as a result of that search was legally admitted.
T8 This Court should not refashion issues before it into a preferred format in order to reach a desired result. In this case, the Court has made that mistake. The Court's mistake should not be attributed to the officer who, on the night in question, did not make a mistake in his stop under the plain language of the statute. While there may have been operational lights on the vehicle, those lights were obstructed and pursuant to the testimony which the trial judge deemed more credible, the obstruction prevented the officer from seeing the lights from within 500 feet. It should be noted, the officer was acting in a very professional manner and stated that he only intended to issue a warning citation. The fact he did not issue that warning, based upon the discovery of other criminal acts, does not taint the validity of this initial stop. Based on the evidence actually present in the record and an application of the statute as written, I would affirm the judgments and sentences in both cases.
LILE, Judge: Concurs in Part / Dissents in Part.
{1 The Court today selectively ignores facts which appear in the record in order to reach its desired result. The officer was properly issuing a warning citation for ob-secured tail lights (a fact not disputed by any evidence in the case) when he observed the gun. His actions to that point and thereafter were entirely proper. Judge Winchester's evaluation of the factual situation at this non-jury trial was correct and his judgment should be affirmed. It is not the place of an appellate court to retry factual issues and it is not enough to say that with three votes or more the Court can do anything it wishes. There are limits to our authority which are however enforceable only by our own sense of duty and restraint.