Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – BOLO – investigatory stop – while deputy was responding to a BOLO, the initial contact with the driver was a consensual citizen/police encounter – driver was parked at a convenience store and officer did not activate his emergency lights or restrict driver’s movement – deputy had reasonable suspicion that the driver had committed or was about to commit a crime at the point driver was asked to exit the vehicle - Petition denied.  Cook v. Dept. of Highway Safety and Motor Vehicles, No. 04-0067AP-88A (Fla. 6th Cir. App. Ct. March 3, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DANA RAYMOND COOK,

                        Petitioner,

vs.                                                                                               Appeal No. 04-0067AP-88B

                                                                                                   UCN522004AP000067XXXXCV

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Dana Raymond Cook (Cook), seeks review of the Final Order of License Suspension, entered August 11, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Cook’s driving privilege was properly suspended for a period of one year for driving under the influence (DUI).  In reviewing the Order and the administrative action taken by the Department, this Court must determine whether Cook was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s findings and judgment were supported by competent substantial evidence.  See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            The record shows that on June 27, 2004, cab driver, Jeremy Babb, was dispatched to pick up a fare at Diamond Dolls.  As set forth in his witness statement, upon arriving at Diamond Dolls, the manager pointed out Babb’s fare.  Babb called out to the fare, who waved off Babb and staggered to his truck.  Babb followed the truck out of the parking lot onto U.S. 19.  Babb observed the truck “swerving wildly,” at one point nearly hitting a guardrail, and contacted Deputy McKnight of the Pinellas County Sheriff’s Office.  Deputy McKnight issued a BOLO to which Deputy Anderson, also of the Pinellas County Sheriff’s Office, responded.  Babb remained on the phone with Deputy McKnight updating the location of the vehicle, described as a white pickup truck, until the vehicle pulled into a 7-11 at the location of Seville Boulevard and U.S. 19. 

            Deputy Anderson pulled up to the pickup truck without activating his emergency lights and made contact with the driver, later identified as Cook.  The pickup truck was still running.  Deputy Anderson immediately noticed a strong odor of alcohol, that Cook’s eyes were bloodshot and watery, and that his speech sounded slurred.  Cook had difficulty keeping his eyes open and his movements were slow and deliberate.  Deputy Anderson asked Cook whether he was sick or injured to which he replied he was not.  Deputy Anderson requested Cook to exit his vehicle and to perform field sobriety tests.  Cook refused to perform the field sobriety tests and was arrested for DUI.  Cook later refused to take the requested breath tests.

            Before this Court, Cook argues that the Department improperly failed to invalidate Cook’s suspension as the BOLO was insufficient to justify an investigatory stop and that there was not probable cause to initiate a traffic stop nor make an arrest.  The Department responds that Deputy Anderson’s initial contact with Cook was a consensual encounter which was elevated to a lawful investigatory stop after Deputy Anderson observed several signs of impairment.  The Court finds that Cook was parked when Deputy Anderson arrived at the 7-11 and that it was unnecessary for Deputy Anderson to initiate a traffic stop.  Deputy Anderson did not activate his emergency lights.  Further, it does not appear from the record that Deputy Anderson hindered or restricted Cook’s freedom to leave or answer questions. 

            Hence, while Deputy Anderson was responding to a BOLO, the initial contact with Cook was a consensual citizen/police encounter.  See Popple v. State, 626 So.2d 185, 187 (Fla. 1993)(stating that a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries); Siplin v. State, 730 So.2d 1010, 1011 (Fla. 2d DCA 2001)(explaining that once an officer activates his emergency lights, the encounter is not consensual, but an investigatory stop); Bailey v. State, 717 So.2d 1096, 1097 (Fla. 5th DCA 1998)(finding that deputies initial approach to four men following issuance of a BOLO was a citizen/police encounter).  The fact that the initial contact was consensual is an important distinction from the cases cited by Cook in support of his argument that the BOLO was insufficient to justify a traffic stop.  See Pantin v. State, 872 So.2d 1000 (Fla. 4th DCA 2004)(holding that BOLO for late-model two-door Mitsubishi with one occupant was not sufficient to create a reasonable suspicion to warrant investigatory traffic stop); Sapp v. State, 763 So.2d 1257 (Fla. 4th DCA 2000)(concluding that radio bulletin asking police to be on the lookout for white four-door vehicle containing two black males was not sufficient basis for traffic stop).

            The consensual encounter was elevated to an investigative stop at the point Deputy Anderson requested Cook to exit his vehicle.  See Danielewicz v. State, 730 So.2d 363, 364 (Fla. 2d DCA 1999)(stating that encounter becomes an investigative stop when citizen is asked to exit vehicle).  The Court finds that from the totality of the circumstances, including that Cook smelled of alcohol, his eyes were bloodshot and watery, his speech was slurred, his movements were slow and deliberate, in addition to the information contained in the BOLO, Deputy

Anderson had at least reasonable suspicion that Cook had committed or was about to commit a crime at the time Cook was asked to exit his vehicle, if not, probable cause.  See Pantin, 872 So.2d at 1002 (stating that the totality of the circumstances determines whether reasonable suspicion exits); see also Parsons v. State, 825 So.2d 406, 409 (Fla. 2d DCA 2002)(stating that a court should consider all facts known to police at the time of the investigatory stop such as time, location, suspect’s physical behavior or anything unusual the suggests criminal activity).

            The Court also finds that while the BOLO, standing alone, would be insufficient to establish reasonable suspicion, the BOLO could be a factor considered by Deputy Anderson in deciding whether to conduct a DUI investigation.  See id.; see also Finzio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001)(stating that even when none of the facts standing alone would give rise to a reasonable suspicion, when taken together as viewed by an experienced deputy they can provide clear justification for a brief detention).  Without the need to go into an in-depth analysis of the sufficiency of the BOLO, the Court notes that the BOLO came from a reliable source.  The cab driver, Babb, was not motivated by pecuniary gain, his identity was readily ascertainable, and Babb followed Cook, his intended fare, after initially observing Cook’s behavior at Diamond Dolls.  See State v. Maynard, 783 So.2d 226 (Fla. 2001)(explaining the difference between an “anonymous informant” and a “citizen informant”).  The record also indicates that while Babb did not give a detailed description of the driver or pickup truck, Babb followed the pickup truck until it came to be parked at the 7-11.[1] 

            The Department’s hearing officer, as the trier of fact, considered the documents generated at the time of Cook’s arrest and determined that there was probable cause to believe Cook was driving under the influence and that Cook was lawfully arrested for DUI.  See Department of  Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 2d DCA 1994)(stating that determination of lawful arrest can be made based upon written documents generated at the time of driver’s arrest).  The Court finds that the Final Order is supported by competent substantial evidence and conforms to the essential requirements of law.  The Court will not reweigh the evidence nor substitute its judgment for that of the Department.  See id.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2005.

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

                                                                        ___________________________________

                                                                        PETER RAMSBERGER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

                                                                        ___________________________________

                                                                        ANTHONY RONDOLINO

                                                                        Circuit Judge, Appellate Division

 

 

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 N. Belcher Road, Suite 102

Clearwater, FL  34625

 

Carlos J. Raurell, Assistant General Counsel

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762



 

[1] The Court notes that several documents considered by the hearing officer, including the 5-page incident report, were not included in either party’s appendix and may have provided additional information regarding the BOLO.  However, the Court will not request either party to supplement the record with these documents since this Court’s decision does not hinge on the accuracy of the BOLO.  See Fla. R. App. P. Rule 9.200(f)(2)(stating “[i]f the Court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record”).