IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

MICHAEL SELTZER,

            Petitioner,

vs.                                                                                                        Appeal No. 00-1552-CI-88A

STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY & MOTOR VEHICLES,

            Respondent.

____________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

            This cause came before the Court on the Petition For Writ Of Certiorari and the Response.  Upon consideration of the same, the Court finds that the Petitioner has raised one issue in his Petition.

            1.  The issue raised is whether the investigative stop conducted by the Clearwater Police Department as a result of a “be on the lookout” (BOLO), and which led to the Petitioner’s arrest for DUI, was lawful.  Following a formal review hearing, the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), concluded that the Petitioner was lawfully arrested for and charged with a violation of section 316.193, Florida Statutes.

            2.  After a review of the record, the Court finds that the Department’s Order, entered February 2, 2000, does not conform to the essential requirements of law and is not supported by competent substantial evidence.  Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).  The Petitioner was not lawfully stopped and, therefore, was not lawfully arrested for DUI.  Department of Highway Safety and Motoring Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992)(stating that issues relating to the lawfulness of the traffic stop will be resolved under the lawfulness of the arrest).

3.      The record shows that Officer Bara, of the Clearwater Police Department, conducted

a traffic stop of the Petitioner’s vehicle immediately following his receipt of a BOLO report that stated someone had dropped off a possibly drug overdosed female at the Clearwater Beach Fire Department and then left in a 1999 Blue Jeep Cherokee.  During, the DUI investigation, the Petitioner admitted going to the fire department with the female in question because she was not feeling well.  The BOLO report is not a part of the record nor is the report of Officer Bara, but the report of Officer Griffiths, who later conducted the DUI investigation, states that the Petitioner was stopped “incident to drug related activity.”  Upon failing the field sobriety and breath tests, the Petitioner was arrested for DUI.

            4.  In order to justify an investigative stop, a police officer must have a well-founded suspicion that the subject of the stop is, or is about to become, involved in criminal activityDanielewicz v. State of Florida, 730 So.2d 363, 364 (Fla. 2d DCA 1999).  In reaching a well-founded suspicion to stop a vehicle pursuant to a BOLO report, a police officer could consider several factors, including:  the length of time since the offense, the distance from the offense, the route of flight, the specificity of the vehicle description and its occupants, and the source of the BOLO information.  State of Florida v. Vance, 692 So.2d 270 (Fla. 5th DCA 1997)(emphasis added).  

            5.  Officer Bara’s report is not a part of the record and Officer Bara did not testify at the formal review hearing, so it is not possible to ascertain whether he had a well-founded suspicion of criminal activity or that an offense had been committed.  Moreover, in reviewing the record, the Court could not find adequate facts or evidence that would support a well-founded suspicion that the Petitioner was committing or about to commit “drug related activity” or any other offense.  The record indicates that the BOLO report was issued solely because witnesses saw the Petitioner dropping off a possibly overdosed female at the fire department and then leaving in his vehicle.  Although one may speculate that this act could have been drug related or criminal in some way, competent substantial evidence requires more than speculative evidence or hypothetical possibilities.  Rahyns v. State of Florida, 752 So.2d 617, 620 (Fla. 4th DCA 1999); see also De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)(defining competent substantial evidence as such relevant evidence as a reasonable mind would accept as adequate to support a conclusion).

.           6.  Further, there is nothing in the record to suggest that the Petitioner was driving erratically or unusually which may have provided a basis to conduct a lawful traffic stop. DeShong, 603 So.2d at 1352.  In DeShong, the Second District Court of Appeal recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.  See id; see also Danielewicz, 730 So.2d at 364 (finding that the officer did not testify that he was concerned for the driver’s personal health and concluding that the officer did not have a well-founded suspicion of criminal activity).  However, there is no indication that the Petitioner was stopped for any of these reasons.

            7.  Therefore, since the record does not contain evidence of a well-founded suspicion of criminal activity or other behavior by the Petitioner that would warrant an investigative stop, the Court finds that the Department’s conclusion that the Petitioner was lawfully arrested is not supported by competent substantial evidence.  

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is GRANTED and the Department’s Order, entered February 2, 2000, is QUASHED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 6th day of September 2000.

           

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

Robert D. Tetreault, Esquire

2010 Fifth Avenue North

St. Petersburg, FL 33713

Attorney for Petitioner

Rafael A. Centurion, Esquire

Assistant General Counsel

Florida Dept. of Highway Safety & Motor Vehicles

2515 W. Flagler Street

Miami, FL 33135

Attorney for Respondent

Florida Dept. of Highway Safety & Motor Vehicles

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610

Staff Attorney, Appellate Division