Huebner v. State, 97-3668.

• Decision Date: 17 March 1999
• Docket Number: No. 97-3668.,97-3668.
• Citation: 731 So.2d 40
• Parties: Kristen HUEBNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

731 So.2d 40

Kristen HUEBNER, Appellant, v. STATE of Florida, Appellee.

No. 97-3668.

District Court of Appeal of Florida, Fourth District.

March 17, 1999.

Richard W. Springer and Catherine Mazzullo of the Law Office of Springer & Springer, Palm Springs, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Kristen Huebner pled no contest to a charge of driving while under the influence in Palm Beach County Court, but reserved the right to appeal the order denying her motion to suppress. On appeal, the defendant argues that the trial judge erred in denying her motion to suppress evidence obtained as a result of an unlawful stop and arrest. She claims that the arrest was unlawful because it was made by an officer who was outside of his jurisdiction and not engaged in fresh pursuit. Additionally, she challenges the arresting officer's reliance upon facts communicated to him by an off-duty officer, who she contends lacked authority to detain or arrest her outside of his jurisdiction.

In the order denying appellant's motion to suppress, the county court judge certified the following issues to this court as issues of great public importance, pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160:

I. WHETHER AN OFF-DUTY POLICE OFFICER IS AN OFFICER FOR PURPOSES OF FLORIDA STATUTES 901.18, 901.25(2) AND THE "FELLOW OFFICER" DOCTRINE.

II. WHETHER AN OFFICER IS IN "FRESH PURSUIT", WITHIN THE MEANING OF FLORIDA STATUTE 901.25, WHERE HIS TESTIMONY ESTABLISHES THAT HE HAS PROBABLE CAUSE TO ARREST A SUSPECT FOR VIOLATIONS OF LAW COMMITTED IN HIS JURISDICTION, AND FOLLOWS THE SUSPECT INTO A FOREIGN JURISDICTION WITH THE INTENTION TO HAVE THE SUSPECT STOPPED OR ARRESTED, AND TAKES ACTIONS WHICH LEAD TO SUCH ARREST BY ANOTHER OFFICER THAT HE SUMMONED FROM HIS JURISDICTION, ALTHOUGH HE TESTIFIED THAT HE WAS NOT IN "FRESH PURSUIT".

We exercise our discretionary jurisdiction to review these certified questions, because they involve the application of statutes and rules governing the arrest authority of police officers in circumstances that may often occur on our streets and highways. Consequently, our resolution of these issues may have state-wide impact upon motorists.

We begin by observing that the east coast of South Florida has grown rapidly, and today can best be described as a megalopolis, with one small municipality abutting the next, each boasting its own police force and populated by hundreds of drivers routinely crossing municipal boundaries. We believe that it would be helpful to the uniform administration of justice in traffic-related cases to clarify the law implicated in the issues raised in this appeal.

Appellant was charged by information with driving under the influence. She moved to suppress all evidence obtained as a result of the stop that led to her arrest. In the order denying appellant's motion to suppress, the trial court summarized the pertinent facts in this case as follows:

The defendant was seen driving in an extremely poor manner by Officer Christophers [sic], an off-duty officer, driving his civilian vehicle, inside of his jurisdiction, who followed the vehicle, keeping it in sight as it traveled through several jurisdictions. Officer Christophers testified that the defendant tailgated his vehicle, went the wrong way down a one-way street, ran a red light, weaved on the road, passed him at a high rate of speed, and drove at times straddling two lanes. The officer radioed for assistance from an on-duty officer from his department. The defendant's vehicle was stopped by an officer from Officer Christophers' jurisdiction, summoned by Officer Christophers, outside of his jurisdiction, who did not witness any poor driving. Officer Christophers testified that he was not chasing the defendant in "fresh pursuit."

Based upon the above-recited facts, the trial judge denied the motion to suppress and found in his written order that Officer Christoffers had a legal basis, either as a police officer or a citizen, for stopping the defendant, inside his own jurisdiction, because the defendant's driving was so erratic as to constitute a breach of the peace and a violation of various traffic laws under Chapter 316, Florida Statutes. The court further found that Officer Christoffers, as a sworn police officer, could have properly arrested the defendant pursuant to section 901.25(2), Florida Statutes, (1997) in "fresh pursuit" outside of his jurisdiction, for a suspected violation of chapter 316 that occurred within his jurisdiction. The court noted that although the officer testified that he was not in "fresh pursuit," the facts demonstrated that he was "doing exactly this, going far out of his way, while not on duty, with the unmistakable intention to have the defendant arrested or stopped for violations of law occurring inside of his jurisdiction." Citing McNeil v. State, 512 So.2d 1062 (Fla. 4th DCA 1987), the trial judge ruled that the officer's characterization of his actions was not binding on the court. The court next decided that Officer Christoffers' status as an off-duty officer did not preclude him from relying on section 901.18 and the "fellow officer" doctrine to communicate his probable cause information to the DUI unit officer who ultimately effected the arrest. We agree with the trial court's well-reasoned order and conclude that the stop was proper under the "fellow officer" rule and "fresh pursuit" theory. We answer the certified questions in the affirmative.

Section 901.18, Florida Statutes (1997), authorizes a "peace officer" making a lawful arrest to command the aid of persons he deems necessary to make the arrest, and confers on persons so commanded the same arresting authority as is held by the peace officer. Section 901.25(2), Florida Statutes, provides that any duly authorized state, county, or municipal arresting officer may arrest a person outside his jurisdiction when in fresh pursuit. Section 901.15, Florida Statutes (1995), in pertinent part, authorizes a "law enforcement officer" to make an arrest without a warrant, either immediately or when he is in fresh pursuit, when a violation of chapter 316 has been committed in the officer's presence.¹ Chapter 316 is Florida's uniform traffic control statute.

On the night of appellant's arrest, Officer Christoffers was a law enforcement officer for the Palm Beach Gardens Police Department. However, he was "off-duty" when he observed the appellant driving erratically in Palm Beach Gardens. His shift had ended at 11:00 p.m. and he was driving home in his personal vehicle when he first noticed appellant following too closely behind his car. Contrary to appellant's assertion, his "off-duty" status did not remove his authority to make an arrest or to perform any other law enforcement function he could perform when on duty. See Metropolitan Dade County v. Norton, 543 So.2d 1301 (Fla. 3d DCA 1989); § 790.052(1), Fla. Stat. (1997).

In Norton, an off-duty detective observed someone toss a cup filled with liquid and ice from a moving pickup truck. At that time, littering from a vehicle was a misdemeanor offense, chargeable to the operator of the motor vehicle. §§ 403.413(4)(a) & (5)(a), Fla. Stat. (1985). The detective stopped the truck, and, upon learning that the driver did not have a driver's license in his possession, called for an on-duty backup officer, and arrested the driver for the license violation, littering and other offenses. The charges were later dismissed and the driver subsequently sued for false arrest. The trial court ruled as a matter of law that the off-duty detective had no authority to arrest the defendant and, further, that he lacked probable cause for the arrest. The third district reversed the denial of the county's motion for a directed verdict at the close of all the evidence. In addition to determining that there was probable cause, as a matter of law, for the driver's arrest, the appellate court held that the off-duty detective had authority to arrest the driver pursuant to section 790.052, Florida Statutes (1985). That section provided:

(1) All full-time police officers, Florida highway patrolmen, agents of the Department of Law Enforcement, and sheriffs' deputies shall have the right to carry, on or about their persons, concealed firearms, during off-duty hours, at the discretion of their superior officers, and may perform those law enforcement functions that they normally perform during duty hours, utilizing their weapons in a manner which is reasonably expected of on-duty officers in similar situations.

(Emphasis added).

At times pertinent to the instant case, this statute was essentially the same, but described the persons to whom the provision applies as "[a]ll persons holding active certifications from Criminal Justice Standards and Training Commission as law enforcement officers or correctional officers as defined in s. 943.10(1), (2), (6), (7), (8), or (9)." § 790.052, Fla. Stat. (1995). Thus, there is no distinction between an on-duty or an off-duty officer insofar as his or her authority to perform customary law enforcement functions. We agree with the trial court's conclusion that Officer Christoffers qualified as a "peace officer"² or "law enforcement officer" and had the requisite authority to command the assistance of another person in making an arrest under section 901.18 and to make an arrest, outside his jurisdiction,...