DUMILE CAROLINA WAGNER v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DUMILE CAROLINA WAGNER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3387
[May 31, 2023]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 19-
30815MU10A.
Carlos A. Canet of Law Office of Carlos A. Canet, P.A., Plantation, for
appellant.
Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia,
Assistant Attorney General, West Palm Beach, for appellee.
CORRECTED OPINION ON THE STATE’S MOTION FOR CLARIFICATION
ARTAU, J.
We grant the State’s motion seeking clarification, withdraw our prior
opinion, and replace it with this corrected opinion.
The defendant appeals from her conviction and sentence for
misdemeanor driving under the influence (DUI) with property damage in
violation of section 316.193(3)(a)–(c)1., Florida Statutes (2019). She pled
no contest to the offense, reserving her right to appeal the legally
dispositive issue of the lawfulness of her DUI arrest at the scene of a traffic
crash responded to by a public service aide with the Fort Lauderdale Police
Department. We accept the State’s confession of error on the issue of the
lawfulness of the defendant’s arrest and reverse.
Before entering her plea, the defendant filed an unsuccessful motion to
suppress all evidence which the arresting officer had obtained pursuant to
the warrantless arrest. Specifically, the motion argued the arresting officer
did not witness the defendant operating or in actual physical possession
of a vehicle while impaired, nor did he or any other fellow law enforcement
officer personally investigate the traffic crash as sections 316.645 and
901.15(5), Florida Statutes (2019), require for a warrantless misdemeanor
DUI arrest.
On appeal, the defendant argues the trial court erroneously denied her
suppression motion. The State concedes that the warrantless arrest was
not lawful. We agree.
The arresting officer in this case was summoned to the traffic crash
scene by a public safety aide. Without ever witnessing the defendant
operating or in actual physical possession of a vehicle while impaired, nor
personally conducting his own investigation, the officer arrested the
defendant based on only the field sobriety tests he administered and what
the public safety aide had investigated, contrary to the plain and clear
requirements for a warrantless arrest delineated in section 316.645,
Florida Statutes (2019) (“A police officer who makes an investigation at the
scene of a traffic crash may arrest any driver of a vehicle involved in the
crash when, based upon personal investigation, the officer has reasonable
and probable grounds to believe that the person has committed any
offense under the provisions of this chapter[.]” (emphasis added)).
The public safety aide in this case, like the community service aide in
Steiner v. State, was “not a deputized police officer.” 690 So. 2d 706, 707
(Fla. 4th DCA 1997). Therefore, because the aide was not a law
enforcement officer with the power to arrest the defendant as required by
the fellow officer rule for a warrantless arrest, the arresting officer could
not rely on the public safety aide’s investigation to establish probable
cause. See § 901.15(5), Fla. Stat. (2019) (“Any law enforcement officer,
upon receiving information relayed to him or her from a fellow officer . . .
that a driver of a vehicle has violated chapter 316, may arrest the driver
for violation of those laws when reasonable and proper identification of the
vehicle and the violation has been communicated to the arresting officer.”
(emphasis added)); see also Sawyer v. State, 905 So. 2d 232, 234 (Fla. 2d
DCA 2005) (“The [fellow officer] rule does not impute the knowledge of
citizen informants to officers.”); Riehle v. Dep’t of High. Saf. & Motor Veh.,
684 So. 2d 823, 824-25 (Fla. 2d DCA 1996) (explaining that if law
enforcement support personnel are not vested with arrest powers, they
cannot be relied upon to establish probable cause for a warrantless DUI
arrest).
Accordingly, and as the State has appropriately conceded, the record
in this case does not support the lawfulness of the defendant’s
2
misdemeanor DUI arrest. Pursuant to Florida law, a law enforcement
officer can arrest a person for misdemeanor DUI without an arrest warrant
in only three circumstances:
(1) the officer witnesses each element of a prima facie case, (2)
the officer is investigating an accident and develops probable
cause to charge DUI, or (3) one officer calls upon another for
assistance and the combined observations of the two or more
officers are united to establish the probable cause to the
arrest.
Sawyer, 905 So. 2d at 234 (internal quotations and alterations omitted)
(quoting Steiner, 690 So. 2d at 708). 1
We agree that reversal is required because the arresting officer did not
witness each element of the DUI crime, did not conduct his own personal
investigation at the scene of the traffic crash, and is precluded by the fellow
officer rule from relying on the public safety aide’s investigation because
the aide was not a deputized police officer with the power to arrest the
defendant.
We therefore reverse and remand with directions that the trial court
grant the dispositive suppression motion and discharge the defendant
from further prosecution. See Gray v. State, 981 So. 2d 562, 566 (Fla. 4th
DCA 2008) (reversing denial of dispositive motion to suppress evidence
obtained from unlawful arrest and “remand[ing] with directions to
discharge [the defendant]”).
Reversed and remanded with instructions.
FORST and KUNTZ, JJ., concur.
* * *
Final Upon Release; No Motion for Rehearing Will Be Entertained.
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1 We do not consider a common law citizen’s arrest as being among the options
available to a law enforcement officer for effectuating a DUI misdemeanor arrest
because the authority to make such an arrest is not dependent upon his or her
status as an officer. See, e.g., State v. Chapman, 376 So. 2d 262, 264 (Fla. 3d
DCA 1979) (“An off-duty municipal police officer outside his jurisdiction has no
right of arrest other than as a private citizen.”). In any event, the State concedes
that a citizen’s arrest would not have been applicable in these circumstances.
3