In the Supreme Court of Florida Case No. Jean Gelin

IN THE SUPREME COURT OF FLORIDA

CASE NO.

JEAN GELIN, et. al.,

Petitioners,

-vs-

THE STATE OF FLORIDA,

Respondent.

______

BRIEF OF PETITIONERS ON JURISDICTION ______

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT ______

BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida 33125 (305) 545-1958

HOWARD K. BLUMBERG Assistant Public Defender Florida Bar No. 264385

Counsel for Petitioners TABLE OF CONTENTS

PAGE

INTRODUCTION 1

STATEMENT OF THE CASE AND FACTS 2

SUMMARY OF ARGUMENT 5

ARGUMENT 6

THE DECISION OF THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, IN THE PRESENT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF THE FOURTH DISTRICT COURT OF APPEAL IN State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1982), decision approved, 455 So. 2d 1024 (Fla. 1984); Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999); AND Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1107 (Fla. 2001) ....6

CONCLUSION 10

CERTIFICATE OF SERVICE AND FONT ...... 10

i TABLE OF CITATIONS

CASES PAGES

Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999), ...... 7, 8, 9

Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1107 (Fla. 2001) ...... 7, 8, 9

State v. Phoenix, 428 So. 2d 262, 265(Fla. 4th DCA 1982), decision approved, 455 So. 2d 1024 (Fla. 1984) ...... 6, 8, 9

ii IN THE SUPREME COURT OF FLORIDA

CASE NO.

JEAN GELIN, et.al.,

Petitioners,

-vs-

THE STATE OF FLORIDA,

Respondent.

______

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT ______

BRIEF OF PETITIONERS ON JURISDICTION

INTRODUCTION

This is a petition for discretionary review on the grounds of express and direct conflict of decisions. In this brief of petitioners on jurisdiction, all references are to the appendix attached to this brief, paginated separately and identified as "A", followed by the page numbers. All emphasis is supplied unless the contrary is indicated.

1 STATEMENT OF THE CASE AND FACTS

On appeal to the district court of appeal, third district, the State of Florida sought reversal of the trial court=s order granting the defendants= motion to suppress

(A. 1-2) The district court of appeal described the underlying facts of the case as follows:

In the instant case, Detective King received a BOLO regarding a crime committed within Miami Beach City limits when he had traveled less than one mile outside the Miami Beach city limits. At the time of the BOLO, Detective King was headed westbound on the MacArthur Causeway on his way home from an off-duty detail. The detective was in an unmarked police van, in full uniform and in possession of a police radio. The BOLO description identified a white van with two black males who were involved in a robbery inside the City of Miami Beach city limits. In response to the BOLO, Detective King pulled over on the

MacArthur Causeway because he believed, in light of the location of the

robbery, that the individuals would leave the beach area through the

MacArthur Causeway. As expected, a white van, meeting the BOLO

description, and heading westbound on the MacArthur Causeway,

passed the detective. The detective immediately began to pursue the van.

The detective testified that he advised the dispatcher that he was behind

the vehicle described in the BOLO. The dispatcher then advised him that

"intercity" (back-up) would be notified. The detective continued to

follow the van until it came to a dead end where the detective stopped his

2 vehicle behind the white van, exited his vehicle, and identified himself as

the police. He testified that the van began to back up until it hit a curb, at

which point the detective saw the headlights of other police officers'

vehicles. Upon the arrival of the other officers, the driver and passengers

surrendered. Defendants were immediately removed from the vehicle and

handcuffed. The defendants were in a white van as described in the

BOLO, the only variation being that there were additional suspects in the

back cargo area of the vehicle. (A. 3-4)

Based on these facts, the district court of appeal reversed the trial court=s order granting the defendants= motion to suppress, and held that Detective King=s stop of the defendants= vehicle outside the detective=s jurisdiction was valid under the fresh pursuit exception to the general rule that an officer of a county or municipality has no official power to arrest an offender outside of the boundaries of the officer=s county or municipality:

The issue thus becomes whether, in light of his location at the time of the BOLO, Detective King was in fresh pursuit of the defendants within the meaning of Section 901.25, Florida Statutes. We conclude that he was. Generally, an officer does not have any official power to make an arrest outside the officer's jurisdiction. See Porter v. State, 765 So.2d 76, 78 (Fla. 4th DCA 2000); State v. Sobrino, 587 So.2d 1347, 1347 (Fla. 3d DCA 1991). However, pursuant to Section 901.25, Florida Statutes, an arrest made outside the officer's jurisdiction can be validated.

* * * * * 3 As already noted, Detective King spotted the defendants within minutes of hearing the BOLO about a crime that occurred within his jurisdiction, and immediately contacted dispatch to advise that he was in pursuit. Detective King maintained close pursuit of the defendants until they came to a dead end, which forced them to stop. In Porter, which we find to be persuasive, the Fourth District affirmed the trial court's findings that Pompano Beach officers were in fresh pursuit of the defendants at the time they made the arrest outside of their jurisdiction in Fort Lauderdale. See Porter, 765 So.2d at 78-79. Porter involved Pompano Beach on-duty officers who responded to a BOLO regarding a robbery that occurred within their jurisdiction, but a few miles from the entry into the City of Fort Lauderdale. Based on information from dispatch and an off-duty police officer that the BOLO-described vehicle was observed getting on I-95 in a southbound direction, the officers entered I-95 to locate the vehicle. The officers did not initially observe the vehicle and the defendants until they were inside Fort Lauderdale city limits. The trial court noted that the area was not far in time or distance from where the robbery occurred and that the route pursued by the officers was a logical travel route for the perpetrators to take. The court therefore found that "[o]nce in pursuit of the vehicle due to its match of the description given in the BOLO, the officers were in hot or fresh pursuit." Porter, 765 So.2d at 79.

(A. 4-6). The district court of appeal rejected the defendants= contention that the fresh pursuit exception did not apply to justify the detective=s stop of the defendants= vehicle outside his jurisdiction because the detective did not have legally sufficient grounds to detain or arrest the appellees before he left his jurisdiction:

It is undisputed that Detective King's off-duty status in the instant case is irrelevant to his authority and obligation as an officer. See, e.g., Huebner v. State, 731 So.2d 40, 43-44 (Fla. 4th DCA 1999); Metropolitan Dade County v. Norton, 543 So.2d 1301, 1302 (Fla. 3d DCA 1989). Nevertheless, defendants argue that Porter is distinguishable because the BOLO in Porter was received by officers located within the 4 jurisdictional limits. We conclude that these facts are a distinction without a difference. If, as defendants' counsel concedes, Detective King's stop would have been appropriate if Detective King received the BOLO while within Miami Beach city limits, to conclude that the stop was illegal where Detective King was just outside the city limits when he heard the BOLO, and where his testimony reflects that he contacted fellow officers who ultimately effectuated the detention of the defendants, is illogical.

(A. 6).

Notice of invocation of this Court's discretionary jurisdiction to review the decision of the district court of appeal was filed May 23, 2003.

SUMMARY OF ARGUMENT

The decision of the Third District Court of Appeal in this case upholds a search and seizure conducted by a City of Miami Beach police officer outside his jurisdiction under the fresh pursuit exception notwithstanding the fact that the officer did not have any grounds to detain or arrest the defendants before he left his jurisdiction of Miami Beach. This holding conflicts with three decisions from the

Fourth District Court of Appeal which establish that the power to arrest after fresh pursuit presupposes that the officer had legally sufficient grounds to detain or arrest before the officer left his jurisdiction. Based on this express and direct conflict of decisions, this Court should exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal in the instant case.

5 6 ARGUMENT

In State v. Phoenix, 428 So. 2d 262, 265 (Fla. 4th DCA 1982), decision approved, 455 So. 2d 1024 (Fla. 1984), the Fourth District Court of Appeal established that the fresh pursuit exception to the general rule prohibiting arrests by law enforcement officers outside their jurisdiction only applies where the officers had legally sufficient grounds to detain or arrest before they left their jurisdiction:

As a general principle, public officers of a county or municipality have no official power to arrest an offender outside the boundaries of their county or municipality. State v. Shipman, 370 So.2d 1195, 1196 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 769 (Fla.1980). One exception to this general principle, which the state urges us to apply here, is that officers can make an official arrest outside their jurisdiction when in fresh pursuit. ' 901.25, Fla.Stat. (1979). The fresh pursuit exception allows officers, who attempt to detain or arrest within their territorial jurisdiction, to continue to pursue a fleeing suspect even though the suspect crosses jurisdictional lines. The power to arrest after fresh pursuit presupposes that the officers had legally sufficient grounds to detain or arrest before they left their jurisdiction.

(footnote omitted). These same principles were restated and applied by the Fourth

7 District Court of Appeal in Huebner v. State, 731 So. 2d 40, 44-45 (Fla. 4th DCA

1999) and Porter v. State, 765 So. 2d 76, 78 (Fla. 4th DCA 2000), review denied, 790

So. 2d 1107 (Fla. 2001).

Beach police officer did not receive any information concerning the crime committed within the Miami Beach city limits until after he had traveled outside the Miami Beach city limits:

(A. 3).

The decision of the Third District Court of Appeal in this case expressly

8 recognizes that the determinative issue in the case is whether the fresh pursuit exception can apply where the City of Miami Beach police officer did not receive any information concerning the crime committed within the Miami Beach city limits until after he had traveled outside the Miami Beach city limits:

(A. 4). In concluding that the fresh pursuit exception applies, the decision of the

Third District expressly rejects the defendants= contention that the fresh pursuit exception did not apply to justify the detective=s stop of the defendants= vehicle outside his jurisdiction because the detective did not have legally sufficient grounds to detain or arrest the appellees before he left his jurisdiction:

Nevertheless, defendants argue that Porter is distinguishable because the BOLO in Porter was received by officers located within the jurisdictional limits. We conclude that these facts are a distinction without a difference. If, as defendants' counsel concedes, Detective King's stop would have been appropriate if Detective King received the BOLO while within Miami Beach city limits, to conclude that the stop was illegal where Detective King was just outside the city limits when he heard the BOLO, and where his testimony reflects that he contacted fellow officers who ultimately effectuated the detention of the defendants, is illogical.

(A. 6).

Contrary to the decision of the Third District, the decisions of the Fourth

9 District Court of Appeal in Phoenix, Huebner, and Porter establish that whether the

Miami Beach detective had legally sufficient grounds to detain or arrest the defendants before they left their jurisdiction is a distinction that has legally significant consequences in determining whether that officer has the legal authority to conduct a search and seizure outside his jurisdiction. Accordingly, the decision of the Third

District in this case expressly and directly conflicts with the decisions of the Fourth

District Court of Appeal in Phoenix, Huebner, and Porter. Based on this express and direct conflict of decisions, this Court should exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal in the instant case.

10 CONCLUSION

Based on the foregoing facts, authorities and arguments, petitioners respectfully request this Court to exercise its discretionary jurisdiction to review the decision of the

Third District Court of Appeal.

Respectfully submitted,

BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida 33125

BY:______HOWARD K. BLUMBERG Assistant Public Defender

CERTIFICATE OF FONT AND CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was hand delivered to the Office of the Attorney General, Department of Legal Affairs, 444 Brickell Avenue, Suite 950, Miami, Florida 33131, this 30th day of May, 2003, and that the type used in this brief is 14 point proportionately spaced Times New Roman.

______HOWARD K. BLUMBERG Assistant Public Defender