Makar, J., dissenting.
Florida law penalizes those who willfully flee or attempt to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and more so if the eluder drives at a high speed or with wanton disregard for the safety of others. § 316.1935(2) & (3), Fla. Stat. (2017) (third degree felony for the former, second degree for the latter). Whether sufficient evidence was presented that the vehicle used by law enforcement officers in their pursuit of Barry Edward Ellis had agency insignia and other jurisdictional markings prominently displayed on the vehicle is the question posed.
A convenience store employee waved down and told Officer Maria Landy, a twenty-year veteran of the Pensacola Police Department working the midnight shift, that a male had stolen cigarettes and left in a white car headed west on Bayou Boulevard. Officer Landy headed in that direction and within seconds came upon a red light at 9th Avenue, where a little white car was stopped-it being the only vehicle in sight at that late hour. Ellis was driving and a second occupant could be seen in the front passenger seat. A second police officer arrived almost immediately, informing Officer Landy that a third occupant-who was difficult to see-was in the back seat. Ellis had turned the car off at Officer Landys direction, but cranked it back up when she asked him to lower the back-seat windows. Ellis then sped away, injuring Officer Landy in the process. Both officers took pursuit with their police lights flashing and sirens on. The chase-though brief-was over the speed limit and resulted in Elliss vehicle turning into a dead-end street and being abandoned. Ellis was taken into custody soon thereafter.
At trial, after the close of the States case, Ellis moved for a judgment of acquittal on the basis that the State failed to present sufficient evidence that Officer Landys vehicle had agency insignia and other jurisdictional markings prominently displayed on it. His motion was denied, and denied again at the conclusion of the case. Ellis was convicted of a second-degree felony under section 316.1935(3)(a), Florida Statutes. Ellis appeals, again claiming the lack of evidence of agency insignia on the police vehicle requires reversal of his conviction under subsection (3)(a) (though, as mentioned below, on remand he would be re-sentenced to a violation under subsection (1) ).
Analysis begins, and ultimately ends, with the statutory language the Florida Legislature has used to define criminality for fleeing or attempting to elude law enforcement officers. Violations and penalties are based on specific statutorily-defined scenarios. Penalties are severe, ranging from third to second degree felonies, plus mandatory revocation of drivers licenses and forfeiture of motor vehicles, if involved in the flight. § 316.1935(1) - (7), Fla. Stat. (entitled Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding.).
The basic fleeing/eluding charge in subsection (1) of the statute does not require that the officer be in a law enforcement vehicle or that pursuit by such vehicle occur. Instead, it makes it unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer[.] § 316.1935(1), Fla. Stat.
In contrast, subsections (2) and (3) limit themselves to fleeing/eluding law enforcement officers who are physically inside a specifically-defined subset of police vehicles. Under subsection (2), it is unlawful for a person to flee or attempt to elude a law enforcement officer while that officer is in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, which is a third degree felony. Id. § 316.1935(2). Similarly, subsection (3)(a)-under which Ellis was charged-makes it unlawful to engage in the criminal conduct defined in subsection (2), if the person [d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property[.] Id. § 316.1935(3)(a). Such conduct is punishable as a second degree felony. A person who knowingly flees a police officer violates subsection (1), but not subsections (2) or (3), which require proof that the officer is in the statutorily-defined law enforcement vehicle.
In this subsection (3) case, no doubt exists that Officer Landy was in a law enforcement patrol vehicle, that Ellis fled at high speed and dangerously from her lawful authority, and that the pursuit thereafter involved siren and lights activated on the officers vehicle. She testified that she was in a marked police vehicle with all the decals, lights and everything but she did not describe what the decals were, what they said, where they were located, or their size. She confirmed that the words Pensacola Police Department were on the vehicle, but did not say where, how large the letters were, or whether the words were part of or considered the Departments agency insignia. No picture of the vehicle was put into evidence. Though not relied upon by the State on appeal, body-cam video-shown to the jury-fleetingly shows that decals of PENSACOLAPOLICE.COM and POLICE were displayed on the rear of Officer Landys vehicle and along the rear windows upper edge, respectively. At best, these general references fall within the common understanding of jurisdictional markings, which define an agencys geographic domain, such as Pensacola Police Department.
No effort was made below or on appeal to establish that either of these letter decals was an agency insignia, a phrase not defined by statute, but best understood contextually as an official governmental symbol of criminal justice authority-typically a shield or badge-like emblem-that only authorized law enforcement officers may use. The popularity of police insignias is reflected in a vibrant and long-established marketplace where collectors buy/sell patches and badges nationally and internationally. It has fostered the establishment of innumerable police insignia collectors associations. Insignia alone-as reflected by its many and assorted dictionary definitions -is a much broader concept and different from agency insignia, which has a narrower and commonly-understood meaning in the context of law enforcement patrol vehicles: badges and shields reflecting official police authority.
An agency insignia is distinct from, but often accompanies and complements, the requisite jurisdictional markings. Heres a common example of both an agency insignia (the official badge-like emblem) and jurisdictional markings (Sheriff Manatee County) on a law enforcement patrol vehicle:
This contrasts with what we have in this case, which is, at best, only the jurisdictional markings of the Pensacola Police Department without an official agency insignia:
The statutory requirement of a prominently displayed agency insignia provides greater assurance to the general public that persons operating such vehicles are real police officers with the authority to make official stops, thereby increasing the punishment against those who willfully flee; it also dovetails with the laws punishing those who impersonate police officers and vehicles to facilitate crimes. See also §§ 843.08-.085, Fla. Stat. (making unlawful impersonation of officers, use of blue lights, and use of badges and other indicia of authority). Agency insignia and jurisdictional markings are separate and distinct statutory requirements; both must be proven to establish that Ellis violated subsection (3).
On this point, Florida appellate courts have taken a generally unified approach as to whether evidence is legally sufficient to support a guilty verdict under subsections (2) or (3), both of which utilize the agency insignia language. Excepting one Fourth District case, every district court decision has taken a strict approach, holding the State to its evidentiary burden of proving that an officers vehicle has agency insignia and other jurisdictional markings prominently displayed. The exception, discussed below, takes a different and insupportable approach, concluding that an offender may violate subsection (2) when an offender knowingly flees a law enforcement vehicle, even if proof of all the requisite markings is lacking.
As to the majority approach, in Gorsuch v. State , 797 So.2d 649 (Fla. 3d DCA 2001), the Third District held that a vehicle marked with a fifteen-inch City of Miami seal on the door was insufficient to satisfy the statutory language that the pursuing officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings[.] Id. at 650. The defendant fled recklessly from officers, all of whom were wearing t-shirts with police insignia at the time of the initial stop arising from narcotics surveillance. Two officers in the pursuit drove unmarked vehicles and the third had the vehicle with the city seal. Because there was no evidence ... that any of the vehicles had an insignia as required by subsection 316.1935(3), and no demonstration that sirens had been operated during the flight, the conviction under subsection (3)(a) was reversed and corrected to a violation of subsection (1).
This Court followed Gorsuch s reasoning in Slack v. State , 30 So.3d 684 (Fla. 1st DCA 2010), which held that the State had failed to present evidence of prominently displayed agency insignia and jurisdictional markings. The officer in Slack testified he was driving a marked patrol car, lights on top, and was wearing a uniform at the time. He testified that, to make the [suspect vehicle] stop, he engaged his exterior lights and activated his siren. Id. at 686. This testimony was not enough.
While [the officer] testified he was driving a marked patrol car with lights on top and that he activated his lights and siren, there was no evidence of agency insignia and other jurisdictional markings prominently displayed on the vehicle. ... That not all markings on law enforcement vehicles constitute agency insignia was made clear in Gorsuch. By neglecting to adduce any evidence that [the officers] vehicle had agency insignia or other jurisdictional markings, the state failed to make out a prima facie case of fleeing or attempting to elude a law enforcement officer ... and the trial court erred in denying Mr. Slacks motion for judgment of acquittal.
Id. at 687. This Court noted that the trial judge in Slack (like the trial judge here) denied the motion for judgment of acquittal based, in part, by presuming that the vehicle had to be marked in a particular way. Id. ([T]he trial judge denied the motion for judgment of acquittal, reasoning: He did refer it was a marked patrol vehicle, and he did identify himself as a member of the sheriffs department. I know by Florida law their patrol vehicles must be marked in a certain scheme as required by Florida law . ) (emphasis added). Neither the evidence presented nor the trial courts presumption as to the vehicles markings, however, was deemed sufficient to satisfy the statutory requirement of a prominently displayed agency insignia and markings.
Similarly, in Jackson v. State , 818 So.2d 539 (Fla. 2d DCA 2002), the Second District held that the lack of evidence that a police vehicles markings were prominently displayed justifies vacating a conviction under subsection (2).
Here, the State presented [the officers] testimony that his overhead lights and siren were activated, but there was no testimony that his vehicle was otherwise marked. The deputy [who observed the officers patrol car] recounted that he observed the Lake Alfred patrol car. But he did not say that he recognized it as such because of its markings, or even that it was marked, or that he even knew the car was from the Lake Alfred Police Department before he stopped to assist. In the absence of proof that the car was prominently marked, the evidence was insufficient to support a conviction for felony fleeing under section 316.1935(2).
Id. at 542. Of note, the mere fact that another officer observed the patrol car was insufficient to create an inference that it was appropriately marked as required under sections 316.1935(2) - (3). See also Hanson v. State , 92 So.3d 288 (Fla. 5th DCA 2012) (finding evidence was legally insufficient to establish the requisite prominently displayed agency insignia or markings); Erskine v. State , 23 So.3d 1207, 1209 (Fla. 3d DCA 2009) (finding no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed).
Our decision in Slack mirrors the situation here. Officer Landys testimony established only that her vehicle was marked with decals and the words Police and Pensacola Police Department. But Slack held that generic statements (marked and decals) fall short of what is legally-sufficient, and Gorsuch , adopted by Slack , held that general jurisdictional markings such as City of Miami are likewise insufficient. Slack specifically warned that evidence of generalized markings on police vehicles generally do not meet the statutory requirements because not all markings on law enforcement vehicles constitute agency insignia as the law requires. 30 So.3d at 687. For the same reason, that Officer Landy said it was clearly a police vehicle does not mean it had the agency insignia and other jurisdictional markings prominently displayed, as required. Agency insignia and jurisdictional markings are separate and independent requirements under the statute (and the jury instructions). Nothing in the evidentiary record presented to the jury, however, provides a basis to conclude that an agency insignia existed-let alone that it was prominently displayed.
Like that faced by the trial judges here and in Slack , there is a judicial temptation to presume that Officer Landys vehicle must have had an agency insignia and that it was prominently displayed on her vehicle. But patrol vehicles may have jurisdictional markings (like the City of Miami seal in Gorsuch ) without the requisite agency insignia. The judicial role, as defined in Slack and related cases, and as applied here, requires that this evidentiary gap not be filled with an assumption or inference-particularly when the assumption or inference may be incorrect and the statutory requirement can be easily proven with a photo of the agency insignia on the vehicle or via answers to questions about the description, size, and placement of the agency insignia and markings.
In its appellate brief, the State sidesteps the agency insignia issue, saying the most important fact is that Ellis knew he was fleeing a police car, which is insufficient under Slack and related precedents to support a conviction under subsections (2) or (3). In effect, the States position is aligned with a Fourth District case, Dumais v. State , 40 So.3d 850 (Fla. 4th DCA 2010), which addressed whether testimony from an officer that his police vehicle was marked, combined with the defendant knowing he was fleeing a police officer, was sufficient to sustain a conviction under subsection (2).
Viewing the officers references to marked unit and marked police vehicle in the light most favorable to the state, in conjunction with the defendants admission that he knew he was fleeing from the police, we conclude that competent, substantial evidence supports the defendants conviction for aggravated fleeing and eluding.
The defendant relies upon three cases in which our sister courts reversed convictions for aggravated fleeing and eluding because the state did not prove the agency insignia and other jurisdictional markings element: Gorsuch v. State , 797 So.2d 649, 651 (Fla. 3d DCA 2001) ; Jackson v. State , 818 So.2d 539, 542 (Fla. 2d DCA 2002) ; and Slack v. State , 30 So.3d 684, 687 (Fla. 1st DCA 2010). However, none of those cases involved a defendant admitting that he knew he was fleeing from the police, as occurred here. We find that fact significant. The purpose of requiring the state to prove that the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated is to guarantee that the defendant [knew] he had been directed to stop by a duly authorized law enforcement officer [and] willfully refused or failed to stop . Fla. Std. Jury Instr. (Crim.) 28.7 (2007). The defendants admission here provides that guarantee. We leave for another day our consideration of whether reference to a marked vehicle, standing alone, is sufficient to prove the agency insignia and other jurisdictional markings element.
Id. at 852-53 (Fla. 4th DCA 2010) (emphasis added). A concurring opinion, which rejected the approach taken in Gorsuch , Jackson , and Slack , found that the officers testimony satisfied the statute.
The italicized language from Dumais says that a fleeing offenders admission that he was pursued by law enforcement officers negates the need to fulfill the statutory requirement of prominently displayed agency insignia and markings. But that is insufficient under the language of the statute and all other caselaw. Such an admission is enough to meet the requirements of subsection (1), which penalizes willfully-fleeing offenders who know they have been ordered to stop such vehicle by a duly authorized law enforcement officer, yet flee anyway. § 316.1935(1), Fla. Stat. But the Legislature created a different type of crime in subsections (2) and (3), which add the requirement that willful flight be from an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated[.] Id. §§ 316.1935(2) & (3). Offenders flee police officers in many different ways, only one of which involves the distinguishing element of these subsections: flight from a law enforcement vehicle with agency insignia and other jurisdictional markings prominently displayed on it. This language must be viewed, as do the standard jury instructions, as requiring adequate proof of prominently displayed agency insignia and markings as an independent element of the offense. That an offender knew he was fleeing a law enforcement officer does not satisfy this element; nor does evidence that a vehicle was marked, absent additional evidence that the requisite agency insignia and jurisdictional markings were prominently displayed. Elliss testimony that he knew Officer Landy was a legitimate police officer, and that his flight from her vehicle was willful, is no substitute for agency insignia and jurisdictional markings in accordance with the statute. Affirming Elliss conviction under subsection (3) is consistent with the Fourth Districts decision (and concurrence) in Dumais , but it is contrary to our precedent in Slack .
The State failed to meet its evidentiary burden to show that Officer Landys patrol vehicle had prominently displayed agency insignia as required by the statute, such that reversal and a remand for entry of judgment for the lesser-included offense under subsection (1) is proper. Slack , 30 So.3d at 688.
Affirmance of the trial courts denial of Elliss motion to suppress is proper, a minimally sufficient basis for the initial investigatory stop existed based upon these and other related facts. Moreover, any causal link of illegality from the stop was broken when Ellis fled and injured Officer Landy. See United States v. Bailey , 691 F.2d 1009, 1013 (11th Cir. 1982) (finding flight from police that amounts to a new, distinct crime purges initial police illegality); see also Tims v. State , 204 So.3d 536 (Fla. 1st DCA 2016) (finding that fruit of the poisonous tree doctrine does not immunize a defendant from arrest for new crimes committed during illegal searches, else a defendant would have an intolerable carte blanche to commit further criminal acts) (quoting Bailey , 691 F.2d at 1017 ).
One example is the Police Insignia Collectors Association of Great Britain, which has an American following and a page devoted to United States police insignias, which are unvaryingly shields and badges. See http://www.pica.co.uk/america_page.html (last visited April 2, 2018). Numerous U.S.-based associations also exist, though focused more generally on police memorabilia including badges, emblems and other police insignia.
United States v. Costello , 666 F.3d 1040, 1043-44 (7th Cir. 2012) ([D]ictionaries must be used as sources of statutory meaning only with great caution. ... Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings.); see also Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation , 17 Harv. J.L. & Public Policy 61, 67 (1994) (In interesting cases, meaning is not plain; it must be imputed; and the choice among meanings must have a footing more solid that a dictionary-which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.).
In another case, the court reversed a conviction, without discussion, based on inadequate evidence of the required markings. Sanner v. State , 63 So.3d 934 (Fla. 4th DCA 2011) (We agree that the state failed to put on proof of this statutory element, requiring reversal.).
Dumais , 40 So.3d at 853 (Stevenson, J., concurring in result) (I would find that the testimony of [the officer] that (1) the attempted stop occurred in Fort Lauderdale, (2) while he was on duty as a police officer with the City of Fort Lauderdale Police Department, (3) in uniform, (4) on road patrol assignment, and (5) driving a marked unit, was more than enough to satisfy the statutes requirement that the vehicle was an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed. ).
See Fla. Std. Jury Instr. (Crim.) 28.8 (Fleeing To Elude A Law Enforcement Officer; Siren and Lights Activated with High Speed or Reckless Driving):
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
4. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.
(Emphasis added).
Williams v. State , 200 Md.App. 73, 24 A.3d 210, 234 (Md. Ct. Spec. App. 2011) (To the extent the State contends that the testimony of defense witness, Sullivan, confirmed the States point that appellant knew he was being pursued by a police vehicle, this is of no significance, as we, like other Courts, observe that the State bears the burden to prove all elements of an offense beyond a reasonable doubt.) (surveying the law of seven states, including Florida, on the issue of markings on police vehicles).
