Department of Highway Safety v. Roberts, 5D05-3001.

• Citation: 938 So.2d 513
• Decision Date: 24 March 2006
• Docket Number: No. 5D05-3001.,5D05-3001.
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. David D. ROBERTS, Respondent.
• Court: Court of Appeal of Florida (US)

938 So.2d 513

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. David D. ROBERTS, Respondent.

No. 5D05-3001.

District Court of Appeal of Florida, Fifth District.

March 24, 2006.

Enoch J. Whitney and Carlos J. Raurell, Miami, for Petitioner.

William R. Ponall of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Respondent.

TORPY, J.

In this administrative driver's license suspension case, Petitioner seeks certiorari review of the final order of the appellate panel of the circuit court. Finding that the lower court did not depart from clearly established legal principles, we decline jurisdiction.

The parties agree that the central issue below was whether Petitioner proved that the Florida Highway Patrol trooper made a "legal" stop of Respondent's vehicle. The stop by police of an occupied automobile for a traffic violation constitutes a "seizure" of "persons" within the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to justify a warrantless seizure, the government must "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). Stated differently, to justify a warrantless stop an officer must have an articulable, reasonable suspicion that a violation of the law has occurred. Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998).

To meet its burden of showing that the stop was legal, Petitioner chose to rely solely on the trooper's charging affidavit, which, in material part, stated: "Observe [sic] the above name [sic] defendant violate F.S.S. 316.187(1) by traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over." The circuit court determined that these facts were insufficient to establish an objective basis upon which to conclude that the officer's suspicions were reasonable. As it did in the proceeding before the lower court, Petitioner relies upon two precedents as authority for its contention that the lower court departed from clearly established legal principles. We agree with the lower court that these precedents can be distinguished.

In State v. Eady, 538 So.2d 96 (Fla. 3d DCA 1989), the officer testified that he saw a vehicle proceeding at "a high rate of speed" and "heard a tire screeching and like a passing gear kicking in." After the vehicle passed the officer, it continued to speed up before the officer pulled it over. In State v. Joy, 637 So.2d 946 (Fla. 3d DCA 1994), the officer observed a truck cross the intersection in front of him at a high rate of speed. The officer heard the vehicle's engine "revving," heard a "whoosh," and saw dust fly. The officer gave chase and had to accelerate at a high rate of speed to catch the vehicle whereupon he "pace-clocked"¹ the vehicle using his speedometer to confirm it was speeding.

Here, unlike Eady and Joy, the officer's report provides little or no specifics about the officer's vantage point when he reached the conclusion that Respondent was speeding.² Although he states that he followed Respondent for one-tenth of a mile while attempting to "pull him over," a fact on which the dissent places great importance, the officer does not assert that Respondent was still speeding at this point or that he "pace-clocked" him during this interval. Absent such an assertion, the duration of the pursuit is not probative of speed. Therefore, based on the limited facts provided in the affidavit, we conclude that reasonable suspicion was lacking. Even if our conclusion as to the application of this nebulous principle is incorrect, however, this is not the proper case for us to exercise certiorari jurisdiction.

In reviewing the final order of the circuit court acting in its review capacity, we are limited to determining whether the circuit court afforded procedural due process and whether it departed from a clearly established legal principle. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000). "A decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to the facts, is not an illegal or irregular act or proceeding remediable by certiorari." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995) (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (1882)). This court cannot review the circuit court's decision and reach a different result simply because we are not satisfied with the result reached by the circuit court. Ivey, 774 So.2d at 682. Rather, we are required to exercise our discretion to avert the possibility that certiorari will be used as a vehicle to obtain a second appeal. Combs v. State, 436 So.2d 93 (Fla.1983).

The lower court identified the correct legal issue and applied the correct legal precedents. As in the instant case, situations involving reasonable suspicion are necessarily resolved on a case-by-case basis. In the absence of precedent involving closely analogous facts, it cannot be said that the lower court departed from a clearly established principle of law. See Ivey, 774 So.2d at 682 (absent controlling precedent, court cannot conclude that lower court violated "clearly established principle of law").³

PETITION DENIED.

MONACO, J., concurs and concurs specially with opinion.

SAWAYA, J., dissents with opinion.

MONACO, J., concurring.

I concur. While I certainly do not disagree with the insightful and scholarly exposition articulated by the dissent concerning the breadth and limits of certiorari jurisdiction, I cannot agree with the conclusion. In my view this case does not present an appropriate opportunity for us to exercise our second-tier certiorari jurisdiction, and we should resist the temptation.

Both the majority opinion and the dissent have properly described our confined second-tier certiorari review. We are limited to determining whether the circuit court afforded procedural due process in conducting its first-tier review, and whether the circuit court departed from a clearly established legal principle. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000). The focus of my attention rests on the issue of whether the circuit court departed from a clearly established legal principle. I cannot say that it did. Rather, this case appears to me to be no more than a "second appeal" of the kind cautioned against by the Supreme Court in Ivey.

That there is no clearly established law governing the present circumstance is perhaps best illustrated by the fact that my two colleagues have come to diametrically opposite conclusions concerning the law applicable to the facts in this case. There simply does not appear to be any controlling case law, rule of court, statute or constitutional law that mandates a conclusion one way or the other. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). I conclude, therefore, that we should not exercise our certiorari jurisdiction in this case.

If we were compelled to review this case, however, I would still agree with the majority opinion. The police officer's report is woefully deficient in its factual recitation. Rather than supply a factual basis for the actions taken, the report gives us only conclusions. We may conjecture at length about how the officer arrived at the precise conclusion that Mr. Roberts was traveling at 71 miles per hour, but we simply do not know. While the officer says that Mr. Roberts drove for another tenth of a mile before he pulled over, we do not know whether the officer was pace clocking him, or any other of the circumstances that led the officer to make this comment. If the State is going to rely on written affidavits to support license suspensions, then the affidavits ought to have sufficient factual information to assure those acting on the writings that due process has been satisfied. Speculation should never be sufficient in place of facts.

Accordingly, I concur in the majority opinion.

SAWAYA, J., dissenting.

The majority opinion holds that a police officer who observes an individual traveling 71 mph in a 45 mph speed zone and follows that individual for a tenth of a mile before pulling him over to issue a traffic citation for speeding does not have probable cause to stop the vehicle to issue the citation. I believe that this is erroneous and I totally reject it.

Factual and Procedural Background

This holding arises out of proceedings instituted by Roberts pursuant to sections 322.2615(6), (7), and (15) and section 322.31, Florida Statutes (2003), to determine whether his driver's license was properly suspended after he refused to submit to a breath test. Section 322.2615(7)(b) provides that at such a hearing, the hearing officer is confined to determining four issues by a preponderance of the evidence, one of which is whether the arresting law enforcement officer had probable cause to believe that the person was driving under the influence of alcoholic beverages. § 322.2615(7)(b), Fla. Stat. (2003). These issues may be resolved based on documents submitted, which in the instant case included the citation for DUI, the officer's arrest affidavit, and the refusal forms. § 322.2615(11), Fla. Stat. (2003). The majority fails to recognize what this court recognized many years ago, which is that the principal features of the procedure established by section 322.2615 are that: 1) "the burden of proof is by a preponderance of the evidence"; and 2) "submission of the law enforcement officer's written report to the hearing officer is enough to sustain the burden." Dep't of Highway Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993). This procedure "places on the suspendee the burden to call all witnesses,...