FL2: Driving slower than others, but not too slow, isn’t cause for a stop

Driving slower than others, but not too slow, isn’t cause for a stop. The use of community caretaking function as an excuse here doesn’t work because there are no objective facts to support it. Agreda v. State, 2014 Fla. App. LEXIS 19703 (Fla. 2d DCA December 3, 2014):

The detective’s subjective intentions aside, the circumstances of this case simply did not present an objective basis for a stop pursuant to law enforcement’s so-called community caretaking function. See Holland v. State, 696 So. 2d 757 (Fla. 1997) (adopting test of objective reasonableness for traffic stops as enunciated in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)). “Even a stop pursuant to an officer’s community caretaking responsibilities … must be based on specific articulable facts showing that the stop was necessary for the protection of the public.” Majors v. State, 70 So. 3d 655, 661 (Fla. 1st DCA 2011). Although the car was traveling below the speed limit, its speed was within the legally permissible range. The detective’s concern about the driving speed was based in part on his observation that people generally drove over the speed limit, not under it. On appeal, the State points to this testimony and asserts that the car was actually traveling 30 miles per hour less than the normal practice. But it would be a strange world indeed if under the Fourth Amendment a search and seizure could be justified by the subject’s failure to engage in typical law-breaking behavior.

Here, the detective observed nothing to objectively suggest that there was a problem with the car or driver. In the absence of something more than simply driving more slowly than most motorists, the stop here was not justified. See Faunce v. State, 884 So. 2d 504 (Fla. 1st DCA 2004) (invalidating stop when car, on dirt road at night, was traveling twenty miles below speed limit but was not swerving or giving indication of mechanical trouble); cf. Bailey v. State, 319 So. 2d 22 (Fla. 1975) (upholding stop, although suppressing evidence for other reasons, when car was weaving and traveling below posted speed on Florida Turnpike); State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999) (concluding that stop was justified when car was traveling below speed limit and continually correcting after drifting over the line).