County Criminal Court: CRIMINAL LAW --- Evidence --- Exclusionary rule --- Organic law --- Separation of Powers --- Enactment of § 322.202, Fla. Stat. prohibiting application of the exclusionary rule to records of DMV, DDL, and DHSMV, did not violate organic law and did not violate doctrine of separation of powers.  Order affirmed.  Small v.  State, No. CRC 07-00071APANO (Fla. 6th Cir. App. Ct. August 21, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

GERMAINE SMALL

 

            Appellant,

 

Appeal No. CRC 07-00071APANO UCN 522006CTI69964XXXXXX

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Denying

Motion to Declare Statue Unconstitutional and

Motion to Suppress and Dismiss

entered by the Pinellas County Court

County Judge William H. Overton

 

Robert M. Tager, Esquire

Attorney for Appellant

 

Carolyne Moomaw, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Germaine Small’s appeal from a decision of the Pinellas County Court to deny Appellant’s Motion to Declare Statue Unconstitutional and Motion to Suppress. The Appellant pleaded no contest but reserved the right to appeal the denial of the motions. After reviewing the briefs and record, this Court affirms the judgment.

Factual Background and Trial Court Proceedings

            The parties stipulated to the facts as stated in the Appellant’s Motion to Suppress and to Dismiss.  Deputy David Swanson of the Pinellas County Sheriff’s Office conducted a traffic stop of the Appellant, Germaine Small, on November 11, 2006 because a computer check of the license plate attached to the vehicle he was driving showed the plate belonged to an unknown make, model and color vehicle.  Notwithstanding the information received from the computer check, the license plate had been properly transferred to the vehicle on November 5, 2006.  After making contact with the Appellant, the deputy discovered that Appellant was driving while his driver’s license was suspended.  Appellant was issued a traffic citation for driving while license suspended and was arrested.

            Appellant filed a Motion to Suppress seeking to suppress all information obtained as the result of the traffic stop.  Appellant argued that, pursuant to Shadler v. State, 761 So. 2d 279 (Fla. 2000), errors made by the Department of Motor Vehicles are imputed to law enforcement officers, and therefore, any information gained from the traffic stop of Appellant should be suppressed.  Appellant also filed a motion seeking to have Florida Statute §322.202 declared unconstitutional as a violation of Article II, Section 3 of the Florida Constitution, the Separation of Powers Clause.  The trial court, relying on Florida Statute §322.202, denied Appellant’s Motion to Suppress and his Motion to Declare Statue Unconstitutional.  This appeal was timely filed.

 

Standard of Review

Our review of a trial court's ruling on a judicial interpretation of a statute and a determination concerning the constitutionality of a statute are pure questions of law subject to the de novo standard of review.  State v. Sigler, 967 So2d 835 (Fla. 2007).

The Issue

The Appellant argues that Florida Statute 322.202 is an unconstitutional attempt by the Florida legislature to reverse Shadler v. State, 761 So2d 279 (Fla. 2000).  In Shadler the Florida Supreme Court held that the Division of Driver Licenses of the Department of Highway Safety & Motor Vehicles, which maintains Florida driver records including records of license revocations and suspensions, is an integral part of law enforcement and therefore any error on their part is a “law enforcement” error.  The Shadler Court stated:

The parties agree that this case is generally controlled by the rule of law enunciated in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), and State v. White, 660 So.2d 664 (Fla.1995). Pursuant to Evans, if an error leading to an unlawful arrest and a subsequent search and seizure was made by court personnel, then the exclusionary rule will not apply and the evidence obtained can be used against the accused. See Evans, 514 U.S. at 14, 115 S.Ct. 1185. In White, we ruled that if the error causing the arrest is attributable to law enforcement personnel, then the seized evidence must be suppressed under the exclusionary rule. See White, 660 So.2d at 667. However, neither Evans nor White contained a broad analysis covering all governmental entities and their mistakes.

 

Shadler, 761 So2d at 281.  In Shadler the court held that if an error in record keeping made by the Division of Driver Licenses leads to an unlawful arrest and a subsequent search and seizure, then the seized evidence must be suppressed under the exclusionary rule. 

            Thereafter, § 322.202 Fla. Stat. (2002) was enacted by the Florida Legislature.  That statute provides:

(1) The Legislature finds that the Division of Driver Licenses and the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles are not law enforcement agencies. The Legislature also finds that the divisions are not adjuncts of any law enforcement agency in that employees have no stake in particular prosecutions. The Legislature further finds that errors in records maintained by the divisions are not within the collective knowledge of any law enforcement agency. The Legislature also finds that the missions of the Division of Driver Licenses, the Division of Motor Vehicles, and the Department of Highway Safety and Motor Vehicles provide a sufficient incentive to maintain records in a current and correct fashion.


(2) The Legislature finds that the purpose of the exclusionary rule is to deter misconduct on the part of law enforcement officers and law enforcement agencies.


(3) The Legislature finds that the application of the exclusionary rule to cases where a law enforcement officer effects an arrest based on objectively reasonable reliance on information obtained from the divisions is repugnant to the purposes of the exclusionary rule and contrary to the decisions of the United States Supreme Court in Arizona v. Evans, 514 U.S. 1 (1995) and United States v. Leon, 468 U.S. 897 (1984).

 

(4) In any case where a law enforcement officer effects an arrest based on objectively reasonable reliance on information obtained from the divisions, evidence found pursuant to such an arrest shall not be suppressed by application of the exclusionary rule on the grounds that the arrest is subsequently determined to be unlawful due to erroneous information obtained from the divisions.

 

            The difficulty with the Appellant’s argument is that a statute may expressly or by implication supersede the common law, and so become the controlling law within its proper sphere of operation, when no organic provision or principle is thereby violated.  Broward v. Broward, 117 So. 691 (Fla. 1928); State v. Parker, 100 So. 260 (Fla. 1924).  Is Florida Statute § 322.202 constitutional?

 

Does Florida Statute 322.202 Violate a Provision or Principle of “Organic Law”?

“Organic law” is the body of laws, as in a constitution, that define and establish a government.  Black's Law Dictionary (8th ed. 2004); see also State v. Johns, 109 So. 220, 231 (Fla. 1926); State v. Greer, 102 So. 739, 743 (Fla. 1924); Johnson v. State, 89 So. 114, 115 (Fla. 1921).   The Legislature may exercise any lawmaking power that is not forbidden by organic law.  The Constitution of Florida is not a grant of power to the Legislature, but a limitation only upon legislative power, and unless legislation be clearly contrary to some express or necessarily implied prohibition found in the Constitution, the courts are without authority to declare legislative Acts invalid. Crist v. Florida Association of Criminal Defense Lawyers, 978 So2d 134 (Fla. 2008); Chiles v. Phelps, 714 So.2d 453, 458 (Fla.1998) (quoting Savage v. Bd. of Pub. Instruction, 101 Fla. 1362, 133 So. 341, 344 (1931).  “Absent a constitutional limitation, the Legislature's ‘discretion reasonably exercised is the sole brake on the enactment of legislation.’ ” Bush v. Holmes, 919 So.2d 392, 406 (Fla.2006) (quoting State v. Bd. of Pub. Instruction, 126 Fla. 142, 170 So. 602, 606 (1936).

The Florida Supreme Court has recognized that the judiciary has an obligation, pursuant to the separation of powers contained in Article II, Section 3 of the Florida Constitution, to construe statutory pronouncements in strict accord with the legislative will, so long as the statute does not violate organic principles of constitutional law.  Sebring Airport Authority v. McIntyre, 783 So2d 238, 244 (Fla. 2001).  Where a statute does not violate the federal or state Constitution, the legislative will is supreme, and its policy is not subject to judicial review. The courts have no veto power, and do not assume to regulate state policy; but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law.  Sebring Airport Authority, 783 So2d at 244; Reyes v. State, 854 So2d 816 (Fla. 1st DCA 2003).  No statute should be declared inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that there is a positive conflict.  Davis v. State, 146 So2d 892, 895 (Fla. 1962); Armistead v. State, 41 So2d 879 (Fla. 1949).  The existence of reasonable doubt as to constitutional infringement requires that a presumption of validity be indulged in deference to a coordinate branch of government.  Biscayne Kennel Club v. Florida State Racing Commission, 165 So2d 762 (Fla. 1964).

The provision or principle of organic law addressed by Florida Statute § 322.202 is the exclusionary rule established by the decisions of the United States Supreme Court in Arizona v. Evans, 514 U.S. 1 (1995) and United States v. Leon, 468 U.S. 897 (1984).  The statute does not conflict with those decisions.  The Constitution of the State of Florida provides in Article I, Section 12:

Searches and seizures.--The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

 

Florida Statute § 322.202 does not conflict with this Florida constitutional provision. 

            The Appellant argues that Florida Statute § 322.202 is unconstitutional because it violates of Article II, Section 3 of the Florida Constitution, the Separation of Powers Clause.  The difficulty with this argument is that Florida Statute § 322.202 was not created to and did not overturn a specific final judgment of a case that had been previously decided.  Such final judgments are solely in the province of the courts.  Bush v. Schaivo, 885 So2d 321 (Fla. 2004); Plaut v. Spendthrift, 514 U.S. 211 (1995).  However, as cited above, a statute may expressly or by implication supersede the common law.  Broward v. Broward, 117 So. 691; State v. Parker, 100 So. 260.  Florida Statute § 322.202 prospectively modified common law.  It certainly cannot be said that the statute, beyond all reasonable doubt, conflicts with or violates organic law.  

Conclusion

            This court concludes that the orders of the trial court denying Appellant’s Motion to Declare Statue Unconstitutional and Motion to Suppress should be affirmed.

            IT IS THEREFORE ORDERED that the orders of the trial court denying Appellant’s Motion to Declare Statue Unconstitutional and Motion to Suppress are affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of August, 2008.

 

 

 

_____________________________

Michael F. Andrews                                                 Circuit Court Judge

 

 

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

                                                           

 

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

 

 

 

 

 

           

cc:        Honorable William H. Overton 

            Robert M. Tager, Esquire

            Office of the State Attorney