DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DUMILE CAROLINA WAGNER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3387
[December 7, 2022]
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.
ON CONFESSION OF ERROR
ARTAU, J.
The defendant appeals from her conviction and sentence for
misdemeanor driving under the influence (DUI) with property damage in
violation of section 316.193(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 arrest for DUI at the scene of an accident
initially investigated 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 a motion to suppress all
evidence which the arresting officer had obtained at the scene.
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 accident as sections 316.645 and 901.15(5), Florida
Statutes (2019), require for a warrantless arrest.
On appeal, the defendant argues the trial court erroneously denied her
suppression motion. We agree.
The arresting officer in this case was summoned to the accident scene
by a public safety aide. Without ever witnessing the defendant operating
or in actual physical possession of a vehicle, or personally conducting his
own investigation of the accident, the officer arrested the defendant based
on only his road sobriety investigation and what the public safety aide had
told him.
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 observations or 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)); 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.”); see also 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
misdemeanor DUI arrest. An officer can arrest a person for misdemeanor
DUI 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). We agree with the State that reversal is required because
the arresting officer did not witness each element of the DUI crime, did not
conduct his own personal investigation of the accident, and is precluded
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by the fellow officer rule from relying on the information provided to him
by the public safety aide because the latter 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.
* * *
Not final until disposition of timely filed motion for rehearing.
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