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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
NEIL R. DAINGERFIELD,
Petitioner,
vs. Appeal No. 06-0086AP-88B
UCN522006AP000086XXXXCV
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 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 (
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
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
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 (
…[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
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.
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 (
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.
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
______________________________
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
Thomas C. Mielke, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews