State of Florida v. Kyle R. Queior , 41 Fla. L. Weekly Supp. 154 ( 2016 )

Supreme Court of Florida
____________
No. SC15-367
____________
STATE OF FLORIDA,
Petitioner,
vs.
KYLE R. QUEIOR,
Respondent.
[April 21, 2016]
POLSTON, J.
In an appeal from a violation of probation (VOP) proceeding, the Second
District, in Queior v. State, 157 So. 3d 370 (Fla. 2d DCA 2015), certified direct
conflict with the Fifth District Court of Appeal’s decision in Terry v. State, 777 So.
2d 1093 (Fla. 5th DCA 2001), regarding whether probation officer testimony that
the probationer failed a field drug test personally administered by the officer is
competent, nonhearsay evidence of a probation violation.1 For the reasons below,
we hold that it is and that, in Queior’s case, this evidence together with the hearsay
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
evidence, including a lab report confirming the presence of opiates in Queior’s
urine, is sufficient to establish that Queior violated the conditions of his probation.
Accordingly, we quash the Second District’s decision to the contrary in Queior.
BACKGROUND
The State sought to revoke Queior’s probation based upon his alleged illegal
drug use contrary to the conditions of his probation. In support of the alleged
violation, the State presented evidence in the form of a lab report, which was
hearsay because it was not admitted through a records custodian, confirming the
presence of opiates (for which Queior did not have a prescription) in Queior’s
urine. The State also introduced, through Queior’s probation officer, hearsay
testimony that the officer received an anonymous telephone call informing him that
Queior had been buying and using illegal drugs.
However, the State acknowledged that, even under the lesser burden of proof
and relaxed evidentiary standards applicable in VOP proceedings, Florida law
prevents the trial court from relying solely upon hearsay evidence to revoke
probation.2 Therefore, to corroborate this hearsay evidence, the State introduced
2. As we have explained, in a VOP proceeding, “the State need only
establish by [the] greater weight of the evidence that the violation of probation
occurred,” and “hearsay evidence is admissible . . . to prove a violation of
probation,” although “[t]he hearsay evidence must be supported by non-hearsay
evidence.” Russell v. State, 982 So. 2d 642, 646 (Fla. 2008).
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the testimony of Queior’s probation officer, who testified that Queior failed a field
drug test that the officer personally administered on Queior’s urine before sending
it to the lab for testing. Queior objected to the probation officer’s testimony
regarding the result of the field drug test “on the ground that the State had not laid
the proper predicate to establish the reliability of the [field drug] presumptive test,
a scientific analysis.” Queior, 157 So. 3d at 372. Relying on the Fifth District’s
decision in Terry accepting similar testimony by a probation officer as sufficient
evidence of a probation violation, the trial court overruled Queior’s objection and
revoked his probation.
On appeal, the Second District held that the probation officer’s “testimony
about the field test results was not competent, nonhearsay evidence that Mr. Queior
had used an opiate in violation of his probation” and reversed the trial court’s
revocation order because the only other evidence of the violation was hearsay.
Queior, 157 So. 3d at 374. In so doing, the Second District certified direct conflict
with the Fifth District’s decision in Terry. Id. at 375-76.
ANALYSIS
The State argues that the probation officer’s testimony that Queior failed the
field drug test is competent, nonhearsay evidence properly used to corroborate the
hearsay evidence presented at Queior’s VOP proceeding, including the lab report
confirming the presence of opiates in Queior’s urine. The State further argues that,
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taken together, this evidence is sufficient evidence that Queior violated the
conditions of his probation. We agree.3
As the Fifth District recently explained, field drug testing “is routine and
ubiquitous, such that judges throughout the state (i.e., the fact-finders in VOP
proceedings) are well-versed in the procedure.” Bell v. State, 179 So. 3d 349, 352
(Fla. 5th DCA 2015). In fact, studies show that field drug testing is “highly
reliable, even when the test is not administered by a trained laboratory analyst.”
Id.
For example, as the Fifth District explained in Bell, one study found that “the
overall error rates were a low 2.5% when the [field drug] tests were administered by
officers and an even lower 0.8% when administered by trained laboratory
technicians.” Id. (citing Nat’l Highway Traffic Safety Administration. Field Test
of On-Site Drug Detection Devices, Final Report October 2000,
http://www.nhtsa.gov/people/injury/research/pub/onsitedetection/Drug_index.htm).
Another report found “[l]ittle difference in the performance of [field drug tests]
3. A trial court’s decision to revoke probation is reviewed for abuse of
discretion. Russell, 982 So. 2d at 646. While hearsay is admissible in a VOP
proceeding, it must be supported by competent, nonhearsay evidence. Id. Whether
evidence is competent, nonhearsay evidence is a legal question subject to de novo
review. See Thomas v. State, 125 So. 3d 928, 929 (Fla. 4th DCA 2013)
(explaining that, while evidentiary rulings are reviewed for abuse of discretion,
“whether testimony is hearsay is reviewed de novo”).
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between tests conducted by laboratory technicians and laymen who had been
trained in the proper procedures for conducting and reading the tests.” Id. at 353
(quoting 1 Drug Testing Law Tech. & Prac. § 5:5 “On-site Drug Testing,” (quoting
Substance Abuse & Mental Health Servs. Admin., “Proposed Revisions to the
Mandatory Guidelines for Federal Workplace Drug Testing Programs,” (April 13,
2004))). Further, as the Fifth District explained in Bell, the State of Florida’s
general practice is to prove violations of probation based upon illegal drug use by
“confirm[ing] the result of the field test by sending the sample to a laboratory for
independent testing (using an even more accurate and sophisticated technology).”
Id. at 354.
Despite the prevalent use and documented reliability of field drug tests, our
district courts are split on the issue of whether probation officer testimony of the
results of a field drug test personally performed by the officer constitutes
competent, nonhearsay evidence that may be used to corroborate a hearsay lab
report confirming the probationer’s drug use. Compare Queior, 157 So. 3d at 374-
75 (holding this evidence is insufficient evidence of a probation violation), with
Bell, 179 So. 3d at 358 (holding this evidence is sufficient evidence of a probation
violation).
Further, the district courts that have rejected this testimony as competent
evidence have done so for different reasons, with some concluding the testimony is
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hearsay and with others taking issue with the officer’s expertise. Compare Dawson
v. State, 177 So. 3d 658, 659 (Fla. 1st DCA 2015) (concluding probation officer’s
testimony “that she conducted a urinalysis at her office that indicated appellant
used cocaine, and then she sent a urine sample to a laboratory which issued a
report indicating the urine tested positive for cocaine” was hearsay because the
officer “lack[ed] expertise in conducting the test”), Rothe v. State, 76 So. 3d 1010,
1011 (Fla. 1st DCA 2011) (“[T]he officer’s testimony about the results of the drug
test she performed . . . is hearsay for she admitted on cross-examination that she
has no specialized training, expertise or certification in drug testing.”), and Bray v.
State, 75 So. 3d 749, 750 (Fla. 1st DCA 2011) (finding “the testimony of the
community control officers was hearsay” because “neither testified as to any
expertise as to narcotics or drug testing”), with Carter v. State, 82 So. 3d 993, 996
(Fla. 1st DCA 2011) (holding the State failed to “put on sufficient, competent
evidence to prove that [the probationer] used or possessed cocaine or any other
drug or narcotic” because the probation officer “did not demonstrate any expertise
concerning or understanding of the workings of the test, and could not offer an
opinion about the significance of the test results”), and Weaver v. State, 543 So. 2d
443, 443-44 (Fla. 3d DCA 1989) (holding probation officer’s testimony regarding
the results of a field test the officer conducted was not hearsay but was
nevertheless insufficient, standing alone, to support a finding of a probation
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violation where the officer “could not remember the name of the field test[,] did
not know whether such a test is reliable[, and] could not say, independent of the
test, whether the substance he tested was heroin”).
In Queior’s case, it is not entirely clear whether the Second District held that
the probation officer’s testimony was incompetent evidence because the court
concluded the testimony was hearsay or because the court concluded that the
officer was not qualified to opine on the scientific workings of the test or its
reliability, or all of these things. Compare Queior, 157 So. 3d at 371 (“Because the
State failed to present competent, nonhearsay evidence of Mr. Queior’s use of a
drug or narcotic not prescribed by a physician, we reverse the order revoking
probation and the resulting sentences.”) (emphasis added), with id. at 375
(concluding that the certified conflict case, Terry, “incorrectly equates the
probation officer’s expertise in performing a field test with scientific testimony
about how the test works to establish the test’s reliability”). It is also not clear to
what extent the Second District’s observation in Queior that there was “no
indication that the State of Florida played any role in either the training or the
issuance of the [probation officer’s] certificates” relating to the field drug test
impacted its holding that the State failed to produce sufficient evidence that Queior
violated the conditions of his probation. Id. at 372 n.1. However, none of these
issues prohibited the trial court from relying on the probation officer’s testimony to
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corroborate the hearsay evidence of Queior’s illegal drug use and revoke his
probation as a result of this violation.
A probation officer “testifying at hearing, subject to cross-examination, to
what [he or] she personally did and observed. . . . is classic non-hearsay
testimony.” Bell, 179 So. 3d at 356; see also Turner v. State, 179 So. 3d 526, 528-
29 (Fla. 4th DCA 2015) (concluding probation officer’s testimony about a field
drug test he personally conducted and the test results he personally observed “was
based on his own personal observations and knowledge and, therefore, the
testimony was not hearsay”); Isaac v. State, 971 So. 2d 908, 909 (Fla. 3d DCA
2007) (concluding trial court’s finding of a probation violation “was not based
exclusively on [a] hearsay” lab report where probation officer also testified to other
probation violations and that she “personally conducted a field test (positive for
cocaine and marijuana) before the urine sample was sent out for laboratory
analysis”); cf. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) (classifying
“testimony of direct observation of victim injury and attendant circumstances” as
“non-hearsay”); Linic v. State, 80 So. 3d 382, 391 (Fla. 4th DCA 2012)
(concluding witness’s testimony “was not hearsay because it was based on her
personal observations and not on what anyone told her”); see also generally
Charles W. Ehrhardt, Florida Evidence, § 801.2 (2015 ed.) (explaining that
“hearsay,” as defined in section 90.801(1)(c), Florida Statutes, is an out-of-court
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statement offered to prove the truth of the matter asserted and noting that a
witness’s testimony that the witness “saw X buying milk in a supermarket on
January 11 . . . is not hearsay”).
In addition to not being hearsay, the probation officer’s testimony
concerning the results of the field drug test that the officer personally administered
is otherwise competent evidence, “relevant and material” to the allegation that
Queior violated his probation by using illegal drugs. Gainesville Bonded
Warehouse, Inc. v. Carter, 123 So. 2d 336, 338 (Fla. 1960) (defining “competent”
evidence as evidence that “is relevant and material to the issue or issues presented
for determination”). While relevant and material evidence is generally subject to
exclusionary rules besides hearsay, see Brumley v. State, 500 So. 2d 233, 234 (Fla.
4th DCA 1986) (defining “competent evidence” as “relevant evidence that does not
fit within any rule of exclusion”) (emphasis added), this Court’s long-standing
precedent is that evidentiary rules are relaxed in VOP proceedings. This Court has
never held, for example, that the Florida Evidence Code’s rules regarding expert
testimony apply in a VOP proceeding or that a probation officer must have
scientific expertise to testify to the results of a field test personally conducted by
the officer. To the contrary, this Court has explained that “strict rules of evidence
can be deviated from” and that “a lesser burden of proof [applies] because only the
conscience of the court must be satisfied.” Cuciak v. State, 410 So. 2d 916, 918
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(Fla. 1982); see also Charles W. Ehrhardt, Florida Evidence, § 103.1 (2015 ed.)
(“Judicial decisions [have] spoken to different proceedings in which the strict rules
of evidence, and therefore the Code, are inapplicable. Among these proceedings
are . . . revocation of probation [proceedings].”) (footnotes omitted).
Accordingly, like the Fifth District in Bell, we find no justification for
holding “that direct testimony from a probation officer who conducted the positive
on-site drug test, confirmed by a report from an independent laboratory, is
insufficient to meet the relaxed burden of proving a probation violation.” Bell, 179
So. 3d at 355. Rather, given the established reliability of field drug tests and their
commonplace use in VOP proceedings, which are subject to relaxed evidentiary
standards and a lesser burden of proof than a criminal trial, requiring the State to
trot out an expert in a case like Queior’s where the field test has been confirmed by
a lab test is unnecessary to satisfy the conscience of the court that a probation
violation has, in fact, occurred. Cf. United States v. Bell, 785 F.2d 640, 643 (8th
Cir. 1986) (explaining that “urinalysis laboratory reports bear substantial indicia of
reliability” as “the regular reports of a company whose business it is to conduct
such tests, and which expects its clients to act on the basis of its reports”).4
4. The Eighth Circuit in Bell analyzed the reliability of the urinalysis in the
context of determining whether the government had shown “good cause” for
“dispensing with confrontation” and presenting records rather than live testimony.
785 F.2d at 642-43. Under Florida law, relying on testimonial hearsay to prove a
probation violation does not raise confrontation concerns, as this Court has
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Queior argues that simply because the results of such tests, which may not
always be accurate, have long been used to violate probation is not a valid basis for
allowing that practice to continue. However, we reject this argument because a
general rule permitting trial courts to rely on field drug tests to corroborate hearsay
lab reports does not deny a probationer like Queior the “opportunity to be heard
and to show, if he can, that he did not violate the conditions” of his probation.
Peters v. State, 984 So. 2d 1227, 1234 (Fla. 2008) (quotation omitted). To the
contrary, like the probationer in United States v. McCormick, 54 F.3d 214, 222-23
(5th Cir. 1995) (footnotes omitted), “[i]nnumerable avenues were available to
[Queior] to refute the [State’s] proof; he merely failed to pursue them. For
example, had [Queior] wanted to question the technicians who performed the
analys[i]s, [which the field drug test corroborated,] he could have sought a
subpoena ordering their appearance. But this he did not do. [Queior also] could
have sought to obtain evidence impugning the reliability of the laboratory or its
testing methods. But this he did not do.” See also Bell, 785 F.2d at 643 (“[N]o
evidence was presented to contradict Bell’s drug usage, and . . . Bell has made only
previously held that “the rule set forth in Crawford [v. Washington, 541 U.S. 36
(2004)], which provides that testimonial hearsay is inadmissible in a criminal
prosecution unless the declarant is unavailable and the accused has had an
opportunity to cross-examine the witness, does not apply to probation or
community control revocation proceedings in Florida.” Peters v. State, 984 So. 2d
1227, 1227 (Fla. 2008).
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general, unsubstantiated claims that the laboratory tests may have been
defective.”).
Finally, the Second District appears to suggest that Queior’s probation
officer, who had been a probation officer for over 24 years and testified that he
administered “an average of forty to fifty of the [field drug] tests per month,” may
have lacked the training and certifications necessary to qualify as an expert.
Queior, 157 So. 3d at 371. However, under the relaxed evidentiary rules
applicable to a VOP proceeding, a probation officer is not required to be qualified
as an expert in order to testify about the results of the field drug test that the officer
personally administered. Cf. Bell, 179 So. 3d at 356 (“view[ing] the probation
officer’s testimony as similar to a lay witness, testifying in court, who states that he
saw the traffic signal immediately before an intersection crash and that the light
was green when the plaintiff entered the intersection”).
Rather, in a VOP proceeding, the officer’s training and experience in
administering field drug tests goes to the weight to be given to the officer’s
testimony, which is an issue for the trial court. See Moore v. State, 788 So. 2d
385, 386 (Fla. 5th DCA 2001) (“The weight to be given the evidence falls within
the province of the trial court and this court will not re-weigh the evidence.”); see
also Turner, 179 So. 3d at 527 (affirming trial court order revoking probation
where probation officer, who had an “extensive background and training in
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administering in-office drug tests,” testified that the probationer failed a field drug
test, and “a laboratory report confirm[ed] the results of the in-office test”).
Accordingly, in Queior’s case, “[b]ecause the hearsay evidence regarding
the independent confirmatory [lab] test was corroborated by the probation officer’s
non-hearsay testimony regarding his field test results, we find no abuse of
discretion in the trial court’s finding that [Queior] violated his probation as
alleged.” Bell, 179 So. 3d at 358.
CONCLUSION
For the foregoing reasons, we hold that testimony by Queior’s probation
officer that Queior failed a field drug test the officer personally administered is
competent, nonhearsay evidence. Accordingly, the trial court did not abuse its
discretion by relying upon this testimony to corroborate the hearsay evidence
presented, including a confirmatory lab report, to find the probation violation
necessary to revoke Queior’s probation. Therefore, we quash the Second District’s
decision to the contrary in Queior.
We also disapprove the First District’s decisions in Dawson, Rothe, and
Bray to the extent those decisions hold probation officer testimony about the
results of a field drug test personally administered by the officer is hearsay, and we
further disapprove the First District’s decision in Carter and the Third District’s
decision in Weaver to the extent those decisions require the probation officer to
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demonstrate scientific expertise concerning the workings of the field drug test or
its reliability in order for the officer’s testimony regarding personal observations in
administering the test to be considered competent evidence.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Second District - Case No. 2D13-3261
(Charlotte County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; John M. Klawikofsky,
Bureau Chief, and Brandon Robert Christian, Assistant Attorney General, Tampa,
Florida,
for Petitioner
Howard L. Dimmig, II, Public Defender, and Richard John Sanders, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Respondent
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