Memorandum of Law in Support of Motion in Florida by bjn18321

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									                                                      IN THE COUNTY COURT, JUDICIAL
                                                      CIRCUIT, IN AND FOR, FLORIDA

 STATE OF FLORIDA                                     CASE NO.:

 vs.                                                  DIVISION:




                                 MEMORANDUM OF LAW
                              IN SUPPORT OF DEFENDANT=S
                            AMOTION TO SUPPRESS EVIDENCE@


       The Defendant=s motion is based on the assertion fact that the arresting officer was not

authorized under Florida law to arrest the Defendant. The Defendant was arrested for the

misdemeanor offense of DUI.1 The arrest was made without a warrant. The arrest is not authorized

by '901.15(1) or (5), F.S.; the arrest is not authorized by '316.645, F. S. There is no other authority

for this arrest without a warrant.

       The general rule is that an arrest without a warrant is presumptively unreasonable unless it

falls under a defined exception. The Fourth Amendment of the U.S. Constitution and Art. I, '12 of

the Florida Constitution protect those in the State of Florida from unreasonable searches and

seizures. The term seizure is read synonymous with the word arrest. These provisions specifically

require arrest warrants to be reviewed for probable cause by a neutral magistrate before issuance and

must be made under oath by witnesses. Unlike search warrant jurisprudence which contains many,

various and often imprecise judicially created exceptions, the exceptions to the warrant requirement

for arrests are precisely delineated by statutes which are exacting in their application.


       1
           '316.193, F.S.
        At common law as well as by statute or court decision, virtually all jurisdictions allow

warrantless arrests for felonies in situations in which it is not feasible to first obtain a warrant. The

common law rule with respect to misdemeanors was quite different. A warrant was required except

when a breach of the peace occurred in the presence of the officer. This is still the rule in a few

jurisdictions, but in most states a somewhat broader statutory rule is now in effect. By far the most

common statutory provision permits warrantless arrests for any misdemeanor committed in the

officer's presence. Some states have removed the warrant requirement altogether by applying the

felony rule to misdemeanor cases, while some others have adopted a middle position to allow for

warrantless misdemeanor arrests if exigent circumstances are present.

        Florida permits warrantless arrests for misdemeanors occurring in the officer's presence,

'901.15(1), F.S. By statute, Florida has also delineated specific situations in which some warrantless

arrests are authorized for misdemeanors not occurring in the officer's presence, e.g., domestic

violence, child abuse, and battery.2

        The general statute governing lawful arrests without a warrant in Florida is '901.15, F.S.3


        2
            '901.15(7), (8), (9), F.S., respectively.
        3
          '901.15, F.S. When arrest by officer without warrant is lawful. - A law enforcement
officer may arrest a person without a warrant when:
                  (1) The person has committed a felony or misdemeanor or violated a municipal
or county ordinance in the presence of the officer. An arrest for the commission of a
misdemeanor or the violation of a municipal or county ordinance shall be made immediately or
in fresh pursuit....
                 (5) A violation of chapter 316 has been committed in the presence of the officer.
Such an arrest may be made immediately or in fresh pursuit. Any law enforcement officer, upon
receiving information relayed to him or her from a fellow officer stationed on the ground or in
the air 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).


                                                        2
Both subsections (1) and (5) which allow warrantless DUI arrests cases require that the offense

occur in the presence of the arresting officer. A DUI arrest does not fall under any other subsection

of '901.15, F.S.

       When there is a vehicle accident there is one other statutory exception to the warrant

requirement for a DUI case, i.e., '316.645, F.S.4 State v. Hemmerly, 723 So.2d 324 (Fla. 5th DCA

1998). This section allows a police officer Awho makes an investigation at the scene of a traffic

accident@ to arrest a driver who was involved in the accident if there is probable cause to believe the

driver was in violation of chapter 316 or 322 in connection with the accident. The law interpreting

this section holds that the only person authorized to arrest by this statute is an officer who, prior to

arrest, makes a personal investigation of the accident at the scene of the accident. All three

requirements of the statute must be met to authorize the arrest:

       1.      The accident investigation must be conducted prior to the arrest.

       2.      The investigation must be made at the scene of the accident.

       3.      Only the officer who personally conducted the accident investigation is authorized to

               arrest the driver. (The fellow officer rule does not apply).



1.     The accident investigation must be conducted prior to the arrest.

       The reason behind this element is simple: probable cause for the arrest is developed by the

officer from the investigation conducted of the accident itself. In State v. French, 45 Fla. Supp. 2d


       4
         A316.645 Arrest authority of officer at scene of a traffic crash. - 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
or chapter 322 in connection with the crash.@

                                                   3
98, (County Court, St. Lucie County, 1990), the court granted the defendant=s motion to suppress

evidence in a DUI arrest because the arresting FHP trooper arrested the defendant prior to visiting

the scene of the accident although a previous investigating deputy had been to the scene. The issue

before that court was Awhether the arrest is legal under Florida law.@ Id. The court first found the

arrest unlawful under '901.15(5) and then reviewed '316.645, F.S. because an accident was

involved. The court found that the Astatute clearly requires an arresting officer to visit the actual

scene of the accident and conduct a personal investigation in order to have probable cause to arrest...

Because the trooper arrested the Defendant prior to conducting an investigation at the scene of the

accident, he lacked probable cause to arrest the Defendant for DUI and leaving the scene of the

accident....@ Id. (Emphasis in the original).

2.      The investigation must be made at the scene of the accident.

        Section 316.645, F.S. was reviewed in Ross v. State, 215 So.2d 33, (Fla. 1st DCA 1968). The

court interpreted the statute to allow an arrest to be effectuated elsewhere as long as the arresting

officer has made a personal investigation of the accident at the scene of the accident. In Ross,

Trooper Rhodes responded to the scene of an accident, conducted an investigation there, and

concluded that there was probable cause to arrest Mr. Ross for DUI, but since Mr. Ross was injured

the trooper first took him to a hospital for treatment. Later, at the hospital, Mr. Ross was placed

under arrest for DUI by Trooper Rhodes. Ross appealed the denial of his motion for a directed

verdict based on the unlawful nature of the arrest. Ross claimed on appeal that since he was arrested

at the hospital that his arrest was unlawful5 because it did not take place Aat the scene of a traffic

accident.@ The first district concluded that the arrest was lawful because the intent of the legislature



        5
            Under then existing ' 317.111, F.S. (1963), now Section 316.645, F.S. (1995).


                                                   4
was to give arrest authority to an officer who, Aas a result of an investigation made by that officer at

the scene of an accident,@ id., (emphasis added), develops probable cause to arrest one involved in

the accident. The court found it very important that there was Ano question that the arresting officer

was present at the scene of an accident.@ Id.

       In State v. Quigley, 39 Fla. Supp. 2d 146, (County Court, Escambia County, 1990), the court

granted a motion to suppress in a DUI case because the arrest was unlawful. The Defendant had

been involved in an accident with another vehicle. The Defendant and the other vehicle drove away

from the scene to the Defendant=s home and called FHP. A trooper arrived at Defendant=s home

and eventually arrested him for DUI while there. The trooper never visited the actual scene of the

accident. The court=s reasoning was as follows: AFinding no authority for the State=s position that

the arresting officer need not have visited the actual scene of the accident under the particular

circumstances of this case, the Court agrees with the Defendant=s position that the arrest was

unlawful.@ Id.

3.     Only the officer who personally conducted the accident investigation is authorized to arrest

       the driver. (The fellow officer rule does not apply).

       Section 316.645, F.S. authorizes a warrantless arrest Awhen, based on his or her personal

investigation of a traffic accident, a law enforcement officer has reasonable and probable grounds to

believe the driver has committed the misdemeanor crime of driving under the influence,@ State v.

Hemmerly, 723 So.2d 324 (Fla. 5th DCA 1998) (emphasis added).

       As cited above, in the Ross case, the first district concluded that Mr. Ross's arrest at the

hospital was lawful because the intent of the legislature in '316.645, F.S. was to give arrest

authority to an officer who, Aas a result of an investigation made by that officer at the scene of an

accident,@ develops probable cause to arrest one involved in the accident.(emphasis added).

                                                   5
          This position has been upheld in various courts in Florida. In State v. Kramer, 47 Fla. Supp.

2d 58, (Fla. 17th Jud. Cir. 1991), the Circuit Court, on an appeal by the State from a County Court

dismissal of a DUI information, affirmed the dismissal because the Awarrantless arrest was illegal

and the motion to dismiss was properly granted.@Id. Mr. Kramer, the Defendant, had been involved

in a traffic accident with an unattended vehicle and apparently drove home. One officer arrived at

the scene and made an investigation and obtained evidence from witnesses concluding that Mr.

Kramer was involved in the accident. He radioed for another officer to go to Kramer=s home. The

second officer went to Kramer=s residence, found the car in the driveway, questioned Kramer, and

eventually arrested him. This arresting officer had not been to the scene of the accident. The court

said A...F.S. 316.645 does not authorize an arrest by an officer who has not made an investigation at

the scene of an accident.@ Thus even though there was an officer who did make an investigation at

the scene of the accident, the arrest was still unlawful because the same officer did not make the

arrest.

          The fellow officer rule6 does not apply.




          6
          '901.18, F.S. Officer may summon assistance. - A peace officer making a lawful arrest
may command the aid of persons she or he deems necessary to make the arrest. A person
commanded to aid shall render assistance as directed by the officer. A person commanded to aid
a peace officer shall have the same authority to arrest as that peace officer and shall not be civilly
liable for any reasonable conduct in rendering assistance to that officer.




                                                   6
       The Attorney General of Florida has held the fellow officer rule inapplicable to this statute.7

In response to the question A3. May a police officer arrest a person under Section 316.017 on the

basis of information turned over to him by another police officer who conducted the initial

investigation?,@ the Attorney General responded A...question 3 is answered in the negative.@8

       In Fila v. DHSMV, 8 FLW Supp. 547a, (Circuit Court, Broward County, 2001), the Circuit

Court, in a certiorari review of the Department's affirmance of a license suspension, reversed the

Department because the arrest was unlawful. In that case the arresting officer did not conduct the

accident investigation, only the DUI investigation and arrest. The Department argued that the fellow

officer rule authorized the arrest. The court disagreed stating AThe fellow officer rule set forth in

901.18 F.S. ... does not apply to a situation in which DUI related accidents occur and no officer

observes a suspect either driving or in actual physical control of a vehicle.@

       In State v. Fonte, Jr., 3 FLW Supp. 363a (County Court, Hillsborough County, 1995), Deputy

Tyler, who was near the end of her shift, responded to the scene of a reported accident and began her

investigation. She was soon relieved by Deputy Jaffe, whom she advised of her initial findings. He

called Deputy Brown to the scene to do the DUI part of the investigation while he conducted the

accident part of the investigation. Deputy Brown eventually arrested Mr. Fonte for DUI. The court

specifically asked and answered two questions in its analysis and resulting order.

                1-1.    AWas the warrantless arrest for DUI as a result of a traffic
                        accident investigation lawful pursuant to section 316.645, Fla.
                        Stat.?@

       7
           Then existing Section 316.017, F.S. (1973), now ' 316.645, F.S. (1995).
       8
        Op. Atty. Gen. 073-55, March 13, 1973. AS TO QUESTION 3: Section 316.017 confers
no arrest power upon anyone except that A[a] police officer who makes an investigation at the
scene of a traffic accident may arrest any driver....Therefore, question 3 is answered in the
negative because an officer cannot make an arrest under said statute without having made an
investigation at the scene of the accident.@


                                                  7
               2-1.    ADoes the ``fellow officer principle'' apply to section
                       316.645, Fla. Stat. analyses?@

The court found the arrest unlawful and that the fellow officer rule did not apply. The court stated:
       A(this) statute is limited in application to an officer who personally investigates
       the traffic accident, and that the information obtained by the investigating
       officer cannot be imputed to another officer who does not personally investigate
       the accident, but only makes the warrantless arrest (See Ross v. State, 215 So.2d 33
       (Fla. 1st DCA 1968). Moreover, it does not appear that the well established
       fellow officer rule applies to Section 316.645.@
        In State v. Dunn, 5 Fla. L. Weekly Supp. 190a (County Court, Broward County, 1997), the

court found a similar arrest unlawful and specifically concluded the fellow officer rule could not

justify the arrest. In Dunn, Officer Parlatore arrived at an accident scene and conducted a

traffic crash investigation and determined how the accident occurred. He called in a DUI

task force officer to conduct the DUI investigation. Deputy Herbert arrived, spoke to Officer

Parlatore and immediately began to conduct a DUI investigation and eventually arrested

Ms. Dunn for DUI. The court stated: Athe well-established 'fellow officer rule''...does not

apply to a situation in which a DUI-related accident occurs and no officer observes a suspect either

driving or in actual physical control of a vehicle.@ Cf. State v. French, infra.



       I HEREBY CERTIFY that a copy hereof has been furnished to the Office of the State

Attorney, by                   this         day of February, 2007.




                                               Malcolm Anthony
                                               Attorney for Defendant
                                               Bar no.: 381284
                                               Anthony, Berry & Goode
                                               Four Sawgrass Village, Suite 230
                                               Ponte Vedra Beach, FL 32082
                                               (904) 285-4529




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