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 
2

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 
3

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.