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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
STERLING SMITH,
Petitioner,
vs. Appeal No. 06-0069AP-88A
UCN522006AP000069XXXXCV
STATE 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, 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 (
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
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,
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
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 (
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
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 (
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 (
In addressing the third issue, the
recent case of State v. Cino, 931 So.2d 164, 167 (
Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of
Certiorari is denied.
DONE
AND ORDERED in Chambers, at
________________________________
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
______________________________ ______________________________
GEORGE M. JIROTKA CYNTHIA J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Michael L. Mastrogiovanni, Esquire
Thomas C. Mielke, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews