IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SHAHEIM HASSAN LOMAX, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-4271
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 10, 2014.
An appeal from the Circuit Court for Duval County.
Mallory D. Cooper, Judge.
Nancy A. Daniels, Public Defender, and W. C. McLain, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, for Appellee.
WOLF, J.
Appellant challenges his convictions for second-degree murder and
possession of a firearm by a juvenile delinquent found to have committed a felony
act. He argues the trial court erred in denying his motion to suppress evidence
found during a traffic stop because an officer’s observation of his car swerving
over solid double yellow lines was not probable cause that he committed a traffic
violation. We affirm.
An officer testified that appellant was traveling down a two-lane road
separated by solid double yellow lines. The officer observed the car swerve, with
both the driver’s side front and back tires traveling over the double yellow lines, so
that the vehicle was partially in the oncoming lane of traffic. The officer then
conducted a traffic stop and wrote appellant a ticket for violating a traffic control
device as prohibited by section 316.047, Florida Statutes. The officer testified that
when appellant crossed the double yellow lines, he was not attempting to pass
another car. He testified there were no oncoming cars or cars in front of appellant,
and that appellant did not interfere with the safe operation of any vehicle.
In his motion to suppress, appellant argued that his briefly swerving two
tires over the double yellow lines did not constitute violating a traffic control
device. Specifically, he argued the purpose of the double yellow lines was to
prohibit passing, not brief swerving. He relied on a federal driving manual
pertaining to traffic control devices that was incorporated by reference in Florida
Administrative Code Rule 14-15.010. The manual states that double yellow lines
delineate “where crossing the centerline markings for passing is prohibited.” See
Federal Highway Administration Manual on Uniform Traffic Control Devices,
2009, at Section 3B.01-3B.02. Appellant argues that because there was no
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evidence that he was passing or attempting to pass another vehicle, his briefly
swerving two tires over the double yellow lines did not constitute the traffic
offense of violating a traffic control device. Thus, he argued there was no probable
cause for the traffic stop. The trial court denied the motion to suppress.
“‘The ruling of the trial court on a motion to suppress comes to us clothed
with a presumption of correctness and we must interpret the evidence and
deductions in a manner most favorable to sustaining the trial court’s ruling.’”
Johnson v. State, 608 So. 2d 4, 9 (Fla. 1992) (quoting Owen v. State, 560 So. 2d
207, 211 (Fla. 1990), receded from on other grounds by State v. Owen, 696 So. 2d
715 (Fla. 1997)). In reviewing a motion to suppress, a trial court’s findings of fact
are reviewed for whether there is competent, substantial evidence to support the
findings, whereas a trial court’s findings of law are reviewed de novo. See Calabro
v. State, 995 So. 2d 307, 311 (Fla. 2008).
The State notes that section 316.0875, Florida Statutes, prohibits both
passing and driving to the left of the pavement striping in no-passing zones:
(1) The Department of Transportation and local authorities are
authorized to determine those portions of any highway under their
respective jurisdiction where overtaking and passing or driving to the
left of the roadway would be especially hazardous and may, by
appropriate signs or markings on the roadway, indicate the beginning
and end of such zones, and when such signs or markings are in place
and clearly visible to an ordinarily observant person, every driver of a
vehicle shall obey the directions thereof.
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(2) Where signs or markings are in place to define a no-passing zone
as set forth in subsection (1), no driver shall at any time drive on the
left side of the roadway with such no-passing zone or on the left side
of any pavement striping designed to mark such no-passing zone
throughout its length.
(3) This section does not apply when an obstruction exists making it
necessary to drive to the left of the center of the highway, nor to the
driver of a vehicle turning left into or from an alley, private road or
driveway.
(4) A violation of this section is a noncriminal traffic infraction,
punishable as a moving violation as provided in chapter 318.
§ 316.0875, Fla. Stat. (2010) (emphasis added).
We find the officer’s testimony that he observed appellant’s front and back
driver’s side tires travel over the solid double yellow lines, so that the vehicle was
partially in the oncoming lane of traffic, was competent, substantial evidence that
appellant violated the traffic control device of double yellow lines. Thus, there was
competent, substantial evidence that appellant violated section 316.0875 by
“driv[ing] . . . on the left side of any pavement striping designed to mark such no-
passing zone.”
We note that in a similar context, courts have found that a driver’s failure to
maintain a single lane as required by section 316.089, Florida Statutes, does not by
itself establish probable cause for a traffic stop unless the driver’s behavior placed
other vehicles in danger. See, e.g., Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA
2007). Because section 316.089 prohibits leaving a lane unless it can be done “with
safety,” courts have reasoned that “the failure to maintain a single lane alone
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cannot establish probable cause when the action is done safely.” Hurd, 958 So. 2d
at 603. *
In contrast, section 316.0875 does not permit crossing solid double yellow
lines even if it can be done safely, unless one of the exceptions in subsection (3)
applies. Instead, it states “no driver shall at any time drive . . . on the left side of
any pavement striping designed to mark such no-passing zone.” § 316.0875(2),
Fla. Stat. (emphasis added). Thus, the officer’s observation of appellant crossing
the solid double yellow lines here constituted probable cause, regardless of the fact
the officer testified that appellant did not create a safety hazard. We AFFIRM.
LEWIS, C.J., and WETHERELL, J., CONCUR.
*
We note that, as discussed in Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007),
erratic driving can give rise to reasonable suspicion of impairment in certain
circumstances. However, that was not an issue in this case.
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