State v. Phoenix, s. 80-195

• Decision Date: 10 November 1982
• Docket Number: Nos. 80-195,80-385 and 80-386,s. 80-195
• Citation: 428 So.2d 262
• Parties: STATE of Florida, Appellant, v. Michael Harrison PHOENIX and Steven Michael Trusz, Appellees. STATE of Florida, Appellant, v. Morton Neal HALL, Jr., Appellee. STATE of Florida, Appellant, v. Richard HALE, Appellee.
• Court: Florida District Court of Appeals

Page 262

428 So.2d 262

34 A.L.R.4th 320

STATE of Florida, Appellant, v. Michael Harrison PHOENIX and Steven Michael Trusz, Appellees.

STATE of Florida, Appellant, v. Morton Neal HALL, Jr., Appellee.

STATE of Florida, Appellant, v. Richard HALE, Appellee.

Nos. 80-195, 80-385 and 80-386.

District Court of Appeal of Florida Fourth District.

Nov. 10, 1982.

Rehearing Denied March 30, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.

Max P. Engel of Law Offices of Max P. Engel, Miami, for appellees.

HURLEY, Judge.

The State appeals from orders suppressing the use of certain evidence against the defendants in several criminal cases. The determinative question on appeal is whether police officers who conducted a covert surveillance outside their jurisdiction could make valid "citizen's arrests" even though they used a marked police car and asserted their official position in stopping the arrestees. We answer in the affirmative so long as the probable cause justifying the arrests was lawfully obtained. Because the trial court's orders were based on a different view of the law, we must reverse.

The Martin County sheriff and his officers conducted a covert surveillance of certain activity in St. Lucie County which they believed to be a smuggling operation. The surveillance began around 1:00 a.m. in Martin County when the sheriff of Martin County became suspicious on hearing over his police radio that one of his officers had observed gas cans in the camper covered cargo area of a pickup truck (hereinafter the white camper-truck). The sheriff ordered his officers to follow it. One of the officers, who was piloting Martin County's surveillance aircraft, observed the vehicle cross into St. Lucie County, but the pilot soon lost sight of it when, apparently, the truck lights were extinguished. Various other Martin County officers participated in the surveillance which continued through the early morning hours. Just across the line into St. Lucie County, the sheriff and his officers discovered that a gate chain had been cut and a new lock inserted. The gate blocked a road that led to an area of a ranch in St. Lucie County that could be used as an airstrip. Suspecting illegal activity, the sheriff and his officers waited outside the gate. Around 6:00 a.m., as day was breaking, the surveillance pilot spotted a small aircraft and two other camper-trucks (not the white camper-truck) on the airstrip. At this point, the sheriff first made an effort to notify St. Lucie County authorities of the suspected smuggling operation. Before the St. Lucie County authorities arrived, the suspect aircraft and the two "airstrip" camper-trucks began to leave. One of these trucks headed north further into St. Lucie County; the other headed south towards Martin County. The sheriff and an officer pursued the northbound truck and stopped it in St. Lucie County by using the blue flashing lights of their police car. Guns drawn and pointed, they identified themselves as police officers, ordered the occupants to get out of the truck and lie face down in the grass, and opened the back of the truck where they discovered marijuana. A little later the arrestees were turned over to a St. Lucie County officer who had been flagged down The defendants filed motions in the trial court to suppress evidence. The trial court concluded that the stop and search of the camper-truck in St. Lucie County was unlawful because the officers were acting "under color of office" outside their jurisdiction. Consequently, the court suppressed the evidence found in that truck. The court also suppressed other evidence, including evidence found in the aircraft and the second "airstrip" camper-truck, and a confession because that evidence had been tainted by the illegal arrest in St. Lucie County, i.e., the other evidence and confession were "fruit of the poisonous tree."

while on routine patrol. Meanwhile, another Martin County officer pursued the southbound camper-truck and eventually stopped it and arrested the occupants in Martin County.

As a preliminary matter, we note that the actions of the sheriff and his officer prior to the search of the camper-truck stopped in St. Lucie amounted to an arrest of the occupants for purposes of the exclusionary rule. See McAnnis v. State, 386 So.2d 1230, 1232 (Fla. 3d DCA 1980). The question we must address is whether the sheriff and his officer had the power to lawfully arrest those occupants.

As a general principle, public officers of a county or municipality have no official power to arrest an offender outside the boundaries of their county or municipality. State v. Shipman, 370 So.2d 1195, 1196 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 769 (Fla.1980).

One exception to this general principle, which the state urges us to apply here, is that officers can make an official arrest outside their jurisdiction when in fresh pursuit. ¹ § 901.25, Fla.Stat. (1979). The fresh pursuit exception allows officers, who attempt to detain or arrest within their territorial jurisdiction, to continue to pursue a fleeing suspect even though the suspect crosses jurisdictional lines. The power to arrest after fresh pursuit presupposes that the officers had legally sufficient grounds to detain or arrest before they left their jurisdiction.

In the present case, the trial court found that the sheriff and his officers did not have legally sufficient grounds to detain or arrest the defendants before they left Martin County. The court also found that the arrests in St. Lucie County were not made in fresh pursuit. Based on these findings, the trial court correctly concluded that the officers had no official power to arrest the occupants of the camper-truck stopped in St. Lucie County.

In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen's arrests. State v. Shipman, supra. We do not mean to imply that police officers acting outside their jurisdictions are treated as private persons for the purposes of the exclusionary rule. Rather, we mean that the Legislature, by vesting police officers with official powers, did not intend to divest the officers of their common law right as citizens to make arrests.

Under the common law as it exists in Florida, private persons can arrest for a felony in two situations. Private persons can arrest (1) for a felony committed in their presence and (2) for a felony that they know was committed if they have probable cause to believe and do believe that the person arrested perpetrated the felony. State v. Shipman, supra; State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). But private persons, even if they know a felony was committed, have no right to stop, much less arrest, a suspect on the grounds of founded suspicion alone. State v. Schuyler, 390 So.2d 458, 460 (Fla. 3d DCA 1980).

In the sense that an arrest normally results from a police investigation, it can be Pursuant to the "under color of office" doctrine, police officers acting outside their jurisdiction but not in fresh pursuit may not utilize the power of their office to gather evidence or ferret out criminal activity not otherwise observable. ² McAnnis v. State, 386 So.2d 1230, 1232 (Fla. 3d DCA 1980); State v. Shipman, 370 So.2d 1195, 1196-97 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 769 (Fla.1980); Collins v. State, 143 So.2d 700, 703 (Fla. 2d DCA), cert. denied, 148 So.2d 280 (Fla.1962). The purpose of this doctrine is to prevent officers from improperly asserting official authority to gather evidence not otherwise obtainable. Thus, when officers unlawfully assert official authority, either expressly or implicitly, in order to gain access to evidence, that evidence must be suppressed. Wilson v. State, 403 So.2d 982 (Fla. 1st DCA 1980) (obtaining search warrant by signing affidavit as police officer); State v. Schuyler, 390 So.2d 458, 460 (Fla. 3d DCA 1980).

said that the power of officers to make a valid citizen's arrest is circumscribed by the "under color of office" doctrine. But that doctrine is more accurately understood if it is viewed as a limitation on the power of police to conduct investigations and to gather evidence outside their jurisdiction.

An arrest based on evidence obtained by the unlawful assertion of official authority is likewise illegal; and any "fruits" of that arrest must be suppressed as "fruits" of the unlawful assertion of authority. Because of this result, the language of the case law indicates that the "under color of office" doctrine limits the power to arrest. But this doctrine does not prevent officers...