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Police Officer Outside Jurisdiction - Citizen's Arrest

Posted by John P. Rutkowski | May 09, 2019 | 0 Comments

Criminal law -- Reckless driving with alcohol -- Search and seizure -- Citizen's arrest. Officer acting outside jurisdiction could legally effect citizen's arrest and detain defendant based on his having observed erratic driving pattern that gave rise to concern about defendant's well-being. Although officer, while dressed in plain clothes with his badge on, approached defendant's vehicle after she stopped in parking lot and identified himself as a law enforcement officer, he was not acting under color of office when he observed conduct that formed basis for citizen's arrest, as erratic driving could have been readily observed by any private citizen on the road at that time.

A law enforcement officer outside of his jurisdiction has the same power to arrest a person for a felony or a breach of the peace occurring within his presence as any other private citizenPhoenix v. State, 455 So. 2d 1024 (Fla. 1984). However, a law enforcement officer may not make a citizen's arrest under the color of their office. Id at 1025. The “ ‘under color of office' doctrine applies only to prevent law enforcement officials from using the powers of their office to observe unlawful activity or gain access to evidence not available to a private citizen.” Id. Activity that can be observed by any private citizen, such as driving on a road, does not invoke the “under color of office” doctrine. See State v. Price, 74 So. 3d 528 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2343a]. An off-duty officer does not act under the color of office by identifying himself as a law enforcement officer. Edwards v. State, 462 So. 2d 581, 582 (Fla. 4th DCA 1985). However, a law enforcement officer who conducts a DUI investigation, including by administering field sobriety exercises and a breathalyzer test, acts under color of office because a private citizen would not have been able to conduct such an investigation. Mattos v. State, 199 So. 3d 416 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1974b].

About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-four years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice.

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John P. Rutkowski, Attorney at Law, is focused on all aspects of Criminal Defense, State and Federal Courts, Post Conviction Relief, Criminal Appeals and Traffic Offenses. Contact me today for a free telephone consultation.

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