Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause –BOLO – officer responding to anonymous BOLO tip failed to independently corroborate that driver was committing a crime before lawful traffic stop was conducted – officer failed to do any independent police work, rather stopped vehicle immediately upon seeing it matched the vehicle description - Petition granted. Daingerfield v. Dept. of Highway Safety and Motor Vehicles, No. 06-0086AP-88B (Fla. 6th Cir. App. Ct. April 12, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

NEIL R. DAINGERFIELD,

                        Petitioner,

 

vs.                                                                                                Appeal No. 06-0086AP-88B

                                                                                                    UCN522006AP000086XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

ORDER GRANTING 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 granted as set forth below.

            The Petitioner, Neil R. Daingerfield (Daingerfield), seeks review of the Final Order of License Suspension, entered October 25, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained Daingerfield’s license revocation for a period of one year for driving under the influence.  In reviewing the administrative action taken by the Department, this Court must determine whether Daingerfield 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 September 8, 2006, at approximately 10:26 p.m., Deputy McDowell of the Pinellas County Sheriff’s Office was enroute to an unrelated call when he observed a green Geo Tracker that was the subject of a citizen complaint.  The complainant witnessed two male subjects with open containers of alcohol in their vehicle and they were driving.  The complainant, identified as Marie Callahan, stated that she was at the Mini Mart on Walsingham Road when she observed the green Geo Tracker that was occupied by two older white males.  Ms. Callahan stated that she observed the males drinking beer and could smell a distinct odor of an alcoholic beverage coming from the vehicle.  Ms. Callahan suspected the men were intoxicated and decided to call the police.  Deputy McDowell observed the vehicle in closed proximity to the Mini Mart, and having reasonable suspicion that a crime was occurring, he initiated a traffic stop.  When he approached the vehicle, Deputy McDowell observed a male identified as Neil R. Daingerfield sitting in the driver’s seat.  As he spoke with Mr. Daingerfield, Deputy McDowell smelled a distinct odor of an alcoholic beverage on his breath, his eyes were bloodshot, watery, and glassy, his speech was slurred, he was unsteady on his feet, he staggered as he walked, and he swayed as he stood.  Deputy McDowell asked Mr. Daingerfield if he would perform some Field Sobriety Exercises, but he refused.  Based on the circumstances, Deputy McDowell arrested Mr. Daingerfield for DUI.  Mr. Daingerfield was read Implied Consent Warnings and asked to take a lawful breath test.  Mr. Daingerfield refused to take the breath test and his driving privilege was suspended for the refusal.

 

            Counsel for Daingerfield moved to have the license suspension invalidated due to a lack of probable cause to conduct the traffic stop.  The hearing officer denied the motion and upheld Daingerfield’s license suspension for a period of one year for Daingerfield’s first refusal to submit to a breath test.

            Before this Court, Daingerfield argues that the Department erred in not setting aside his license suspension as there was a lack of probable cause to conduct a traffic stop.  In reviewing this issue, the Court initially finds that the hearing officer was charged with determining by a preponderance of the evidence that: (1) there was probable cause to believe Daingerfield was in actual physical control of a motor vehicle while under the influence; (2) Daingerfield was lawfully arrested; (3) Daingerfield refused to submit to a breath, blood, or urine test, and; (4)  Daingerfield was informed that his driving privilege would be suspended for a period of 12 months for a first refusal.  See Fla. Stat. 322.2615(7)(b)1-4.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Daingerfield’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            Daingerfield only takes issue with whether there was probable cause for Deputy McDowell to conduct a lawful traffic stop based on the “be on the lookout,” or BOLO.  As set forth in State v. Goebel, 804 So.2d 1276, 1277 (Fla. 5th DCA 2002): 

…[t]he Florida Supreme Court noted that factors relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO included:  (1) the length of time and distance from the offense; (2) the route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.”

 

            Deputy McDowell conducted the traffic stop in close proximity to the Mini Mart shortly after the BOLO was issued.  The BOLO description of a green Chevrolet Geo Tracker was specific, including the tag number, and matched the vehicle stopped by Deputy McDowell.  The general and vague description of the occupants as two white males matched the BOLO, but would support the traffic stop only if all the remaining factors were met.   

            The resolution of the issue presented revolves around the fourth factor, whether the source of the BOLO information was an “anonymous informant” or a “citizen informant.”  As set forth in his Arrest Narrative, Deputy McDowell had the following information at the time he initiated the stop:

While en route to an unrelated call, I observed a green Chevrolet Geo Tracker bearing Florida tag D773CH occupied by two subjects traveling eastbound on Walsingham Road approaching 113th Street North.  The vehicle matched the description of the vehicle of the vehicle reference PCSO case #06-256915.  According to the call notes, the complainant witnessed two white male subjects with open containers of alcohol in their vehicle, and they were driving.  Further call notes indicated the vehicle was parked outside the Mini Mart at 11540 Walsingham Road.

 

            The Court finds that Deputy McDowell was relying on information from an anonymous informant at the time he initiated the traffic stop because the record doesn’t reflect that Deputy McDowell knew who the complainant was or that the deputy had any other identifying information.  See State v. Maynard, 783 So.2d 226, 228-30 (Fla. 2001)(explaining the difference between an “anonymous informant” and a “citizen informant”).  It wasn’t until after the traffic stop that Deputy McDowell identified the complainant as Marie Callahan, identified her location, and verified what she witnessed.  The record doesn’t show that Ms. Callahan identified herself to the dispatcher, who initially received the BOLO, or any law enforcement officer prior to Deputy McDowell conducting the traffic stop.  See Maynard, 783 So.2d at 229 (explaining that information in the hands of a dispatcher regarding the informant’s identity is constructively imputed to the officer relying on the BOLO to detain an individual). 

            An anonymous tip is at the low-end of the reliability scale and, without more, is generally insufficient to establish reasonable suspicion to support a traffic stop.  See Maynard, 783 So.2d at 229; see also Marsdin v. State, 813 So.2d 260, 261 (Fla. 4th DCA 2002).  Therefore, Deputy McDowell needed to independently corroborate that Daingerfield was committing a crime before he could conduct a traffic stop.  See id.  Deputy McDowell failed to do any independent police work; rather the deputy immediately stopped Daingerfield upon seeing that the vehicle matched the BOLO description and that the vehicle was being driven by two white males.  Deputy McDowell did not observe Dangerfield driving in an erratic or unsafe manner, nor observe any criminal behavior that would support a temporary detention.  It appears that the traffic stop was unlawful.  See id.; see also Sawyer v. State, 905 So.2d 232, 234 (Fla. 2d DCA 2005)(setting forth the circumstances in which an officer can make a lawful arrest for misdemeanor DUI). 

            Further, the Court finds that the information available to Deputy McDowell at the time he initiated the traffic stop was insufficient to create reasonable suspicion as a matter of law.  There is nothing in the record to show that the driver still had an open container of alcohol and, assuming Deputy McDowell had this information prior to the traffic stop, the odor of alcohol noted by Ms. Callahan, standing alone, does not provide reasonable suspicion to detain a driver.  See State v. Kliphouse, 771 So.2d 16, 24 (Fla. 4th DCA 2000).  Accordingly, the Court finds that the Department departed from the essential requirements of law in failing to invalidate Dangerfield’s license suspension. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order of License Suspension is quashed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of April 2007.

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                      AMY M. WILLIAMS

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

Copies furnished to:

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, 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