Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause - actual physical control – accident privilege report – officer responding to two separate anonymous calls developed suspicion of criminal activity after observing driver try to put vehicle in reverse several times with two flat tires - officer’s observation of driver behind running automobile established actual physical control  - accident report privilege does not exclude officer’s observations - Petition denied. Smith v. Dept. of Highway Safety and Motor Vehicles, No. 06-0069AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

STERLING SMITH,

                                    Petitioner,

 

 

vs.                                                                                               Appeal No. 06-0069AP-88A

                                                                                                   UCN522006AP000069XXXXCV

 

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, Sterling Smith (Smith), seeks review of the Final Order of License Suspension, entered September 28, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained Smith’s license revocation for a period of eighteen months.  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Smith was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s findings and judgment are 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).

After a formal review hearing, the hearing officer made the following findings of fact:

 

On August 3, 2006, at approximately 8:02 p.m., Officer Richardson of the Clearwater Police Department responded to a traffic crash.  When he arrived at the scene, Officer Richardson spoke with Sergeant Harris.  Sergeant Harris related that an anonymous caller had reported that a silver BMW had struck the curb and blown out two tires.  The caller did not give a name or phone number.  As [sic] second caller contacted the Communication Center and related that an intoxicated individual was changing the tires to a vehicle at 1840 Drew Street.  When Sergeant Harris arrived at the scene, he observed a silver BMW with both left tires flattened.  As he was waiting for traffic to clear, Sergeant Harris observed an individual, identified as Sterling Smith, get into he driver’s side of the vehicle and close the door.  Sergeant Harris observed the brake lights come on, and as he pulled into the parking lot, the reverse lights came on and then went out.  As Sergeant Harris got out of his cruiser, he observed the backup lights come on and go out again.  As he spoke with Mr. Smith, Sergeant Harris detected clues of impairment and requested a DUI traffic unit to respond.  When he met Mr. Smith, Officer Richardson detected a strong odor of an alcoholic beverage on his breath, his speech was mumbled, his eyes were watery and bloodshot, and he was unsteady on his feet.  Officer Richardson asked Mr. Smith if he would perform some Field Sobriety Exercises and he agreed.  His performance on the Field Sobriety Exercises indicated further clues of impairment and he was arrested for DUI.  Mr. Smith was read Implied Consent Warnings and asked to take a lawful breath test.  Mr. Smith refused to take the breath test and his driving privilege was suspended for the refusal.

 

The record further shows that the hearing officer considered the testimony of one witness,

Allen Arana, who testified that he was one of the individuals that called the police because it appeared the driver, Sterling, was having trouble changing two tires.  The hearing officer also admitted several documents into evidence, including the arrest narratives of Sergeant Harris and Officer Richardson.  The hearing officer denied two motions to invalidate the license suspension based on lack of probable cause for the traffic stop and that there was no evidence that Mr. Smith was in actual physical control of the vehicle.  The hearing officer then concluded that Mr. Smith’s driving privilege was properly revoked for a period of eighteen months for a second refusal. 

Before this Court, Smith argues that the Department should have invalidated his

license suspension because there was not probable cause to conduct a traffic stop, there was no evidence that Smith was in actual physical control, and the hearing officer improperly considered statements that were subject to the accident report privilege.  Initially, the Court finds that the hearing officer was charged with determining, by a preponderance of the evidence, that there was probable cause to believe that Smith was in actual physical control of a motor vehicle while under the influence, that Smith refused to submit to a breath, blood, or urine test, and that Smith was informed that his driving privilege would be suspended for a period of eighteen months for a second refusal.  See Fla. Stat. 322.2615(7)(b)1-3.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Smith’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            The record shows that Sergeant Harris responded to the location of Smith’s vehicle as a result of two separate, anonymous phone calls.  Because neither caller identified himself/herself, nor provided his/her location or occupation, they were anonymous informants.  See State v. Maynard, 783 So.2d 226, 228-30 (Fla. 2001)(explaining the difference between an “anonymous informant” and a “citizen informant”).  The first caller reported that he had observed a silver BMW strike a curb and blow out two tires.  The second caller, later identified as Allen Arana, a waiter at Carambas Mexican Restaurant where the vehicle was parked, called to report that he was observing someone intoxicated attempt to change his tires.  Since the tips were anonymous, they were at the low-end of the reliability scale and insufficient, by themselves, to justify a traffic stop.  See id. 

            However, Sergeant Harris’ narrative states that as he was arriving on the scene, he observed a silver BMW with both left tires flattened which matched the information provided by the anonymous tips.  Sergeant Harris then observed the driver, later identified as Smith, enter the vehicle, and observed the brake lights come on, followed by the reverse lights going on and off twice, before the vehicle was returned to park.  When Sergeant Harris approached the vehicle, the engine was running.  Sergeant Harris then asked Sterling to turn the vehicle off and step out of the vehicle, at which point Sergeant Harris was conducting an investigative stop.  See Danielewicz v. State, 730 So.2d 363, 364 (Fla. 2d DCA 1999)(stating the general rule that an encounter becomes an investigative stop when citizen is asked to exit vehicle); see also See Woods v. State, 890 So.2d 559, 561 (Fla. 5th DCA 2005)(stating that “[a] person is detained within the meaning of the Fourth Amendment if a reasonable person would not feel free to terminate the encounter, given the totality of the circumstances”).

            The Court finds that under the totality of the circumstances, including the two anonymous tips, a brief detention of Smith was warranted as Sergeant Harris had a reasonable suspicion that criminal activity had occurred or was about to occur.  In Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992), the Second District Court of Appeal explained:  “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether the driver is ill, tired, or driving under the influence in situations less suspicious than that occurred for other types of criminal behavior.”  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); 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).  In determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop, “the totality of the circumstances—the whole picture—must be taken into account.”  See Tamer v. State, 484 So.2d 583, 584 (Fla. 1986); State v. Pye, 551 So.2d 1237, 1238 (Fla. 1st DCA 1989); State v. Kibbee, 513 So.2d 256, 258 (Fla. 2d DCA 1987). 

            Thereafter, pursuant to the fellow-officer rule, Sergeant Harris’ observations could be considered by Officer Richardson in developing probable cause to arrest Smith for DUI.  See Maynard, 783 So.2d at 229; see also State, Department of Highway Safety and Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001)(holding that under the fellow officer rule, one law enforcement officer may develop probable cause to arrest based in part on facts know to another officer).  The information provided by Sergeant Harris, coupled with Officer Richardson’s observations provided probable cause to arrest Smith for DUI.  See  DeShong, 603 So.2d at 1352.  Officer Richardson detected a strong odor of an alcohol coming from Smith and observed that Smith’s speech was mumbled, his eyes were watery and bloodshot, and that he was unsteady on his feet.    

            The Court finds that there is no merit to the second issue.  Sergeant Harris observed Smith behind the wheel of the running automobile and observed the reverse and brake lights come on several times indicating that Smith had put the vehicle into drive.  These observations demonstrate actual physical control.  See Hughes v. State, 943 So.2d 176 (Fla. 3d DCA 2006)(providing an in-depth analysis of actual physical control). 

            In addressing the third issue, the recent case of State v. Cino, 931 So.2d 164, 167 (Fla. 5th DCA 2006), explains that the accident report privilege does not operate to exclude an officer’s observations.  Hence, the Court finds that the hearing officer lawfully considered the observations of Sergeant Harris and Officer Richardson.  The Court is prohibited from reweighing the evidence or substituting its judgment for that of the hearing officer.  See Dept. of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997); Satter, 643 So.2d at 695.  Accordingly, certiorari relief must be denied.

            Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2007.

 

 

 

                                                         ________________________________

                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Michael L. Mastrogiovanni, Esquire

250 North Belcher Road, Suite 102

Tampa, FL  34625

 

Thomas C. Mielke, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762