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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
DANA RAYMOND COOK,
Petitioner,
vs. Appeal No. 04-0067AP-88B
UCN522004AP000067XXXXCV
STATE OF
OF HIGHWAY SAFETY AND
MOTOR VEHICLES,
DIVISION OF DRIVER
LICENSES,
Respondent.
____________________________________________/
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 (
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
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
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 (
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
___________________________________
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
Carlos J. Raurell, Assistant General Counsel
Bureau of Administrative Reviews
[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”).