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State11/9/2005
(Fla. 2001).
In Schachter, Schachter was arrested by Officer Magil, an off-duty City of North Miami Beach policeman, dressed in plain clothes and driving his own car, when he observed Schachter making a right turn on red without coming to a complete stop at the traffic light. This, with other violations committed during an ensuing chase, occurred within the City of North Miami city limits (as opposed to North Miami Beach). We concluded there that Officer Magil's actions could "only be sustained as the actions of a private citizen who has the right to arrest a person who commits a felony in his presence . . . ." Schachter, 338 So. 2d at 270 (emphasis added). See also Phoenix v. State, 455 So. 2d 1024, 1025 (Fla. 1984)(a private citizen has the common law right to arrest a person who commits a felony in his presence). Because Schachter's traffic infraction "in no way constituted a felony and the arrest by Magil was invalid as a private citizen", we determined that "the trial court was without jurisdiction to try ." Schachter, 338 So. 2d at 270. Similarly here, the undisputed, albeit hearsay, testimony of Officer Smith reflects that the entire conduct which supported the stop occurred outside the Coral Gables City limits and in no way constituted a felony.
Because the record is devoid of evidence of conduct within the City of Coral Gables on which the stop in this case can be justified, the stop was illegal. See State v. Sobrino, 587 So. 2d 1347, 1348 (Fla. 3d DCA 1991)(" police officer has no power to effect a 'stop' outside of his territorial jurisdiction unless there exists exigent circumstances, or the officer is on fresh pursuit."). Since the stop was illegal, Pipkin's subsequent arrest was illegal. See Richardson v. State, 291 So. 2d 253 (Fla. 1st DCA 1974)(where initial stop of the defendant's vehicle was without probable cause or reasonable suspicion, subsequent arrest was invalid); Sobrino, 587 So. 2d at 1347 (stating that under analysis of extra-jurisdictional arrest, private citizen must have probable cause and belief that person arrested is guilty of a felony). See also § 316.1932(1)(a), Fla. Stat.(2004)("The chemical or physical breath test must be incidental to a lawful arrest . . . .").
For the foregoing reasons, we deny the petition.
SUAREZ, J. concurs.
SCHWARTZ, Senior Judge (dissenting)
It is a basic principle of nature and of law that things continue as before unless something significant happens to change them. It seems to me that the majority opinion violates this basic rule. The idea that there was no reason to believe that Pipkin violated the law in Coral Gables can be based only upon the quite ridiculous assumption that his intoxication and the erratic driving it caused would cease immediately upon crossing the city limits. Its residents and all South Florida properly regard Coral Gables as The City Beautiful; I had not previously thought that it was also The City Sober. That this need not and should not be the law is shown by Department of Highway Safety & Motor Vehicles v. McClane, 891 So. 2d 596 (Fla. 5th DCA 2004), which is conceptually contrary to the Court's decision. That the officer was legally required to wait until Pipkin lost control of his vehicle in Coral Gables itself before stopping him is simply unacceptable. I would grant the petition.
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