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State v. Reymann1/4/1989
rom the arrest should have been suppressed. See Crews, supra. The evidence with respect to charges of DUI and suspended operator's license is subject to the exclusionary rule as fruit of the poisonous tree. Wong Sun v. United States (1963), 371 U.S. 471.
We believe that justice requires that the appellant be given a fair opportunity to decide whether he wishes to stand trial on the hit-skip charge or re-negotiate his plea.
Accordingly, the appellant's conviction of hit-skip is hereby reversed. The trial court's order finding appellant's arrest to be legal is hereby vacated, and the cause remanded for further proceedings consistent with this opinion and the law.
Judgment accordingly.
Christley, J., concurs.
Judith A. Christley, J., of the Eleventh Appellate District, sitting by assignment.
George, P.J., dissents.
George, P.J., dissenting. A basis for the dismissal of the warrantless arrest for the charge of hit-skip was never given to the trial court. Thus, it was not argued nor otherwise contested by the state. Nevertheless, the trial court found that the warrantless arrest was proper as to that charge and that probable cause existed from the statements of the prosecuting witnesses.
I believe, however, that there is additional justification for the trial court's finding of probable cause. (1) Here, the hit-skip was still in progress when the officer arrived upon the scene. The officer saw the defendant hurry away from the prosecuting witnesses, the prosecuting witnesses identified the defendant as the driver who hit their car, and the defendant secreted himself in his apartment. (2) The officer had an opportunity to view the physical evidence of the hit-skip. (3) The hit-skip was fresh, as the prosecuting witnesses had immediately followed the defendant from the scene of the accident to his apartment.
From the statements of the prosecuting witnesses and these additional facts, the officer found the defendant "violating" the hit-skip statute. Thus, the warrantless arrest was legal and the judgment of the trial court should stand.
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