Supreme Court of Florida ____________
No. SC2024-1088 _____________
STATE OF FLORIDA, Petitioner,
vs.
BRYAN ALLEN REPPLE, Respondent.
December 30, 2025
CANADY, J.
Bryan Repple, the Respondent here, was arrested for driving
under the influence of alcohol in the City of Maitland by a Maitland
police officer. The arresting officer transported Repple outside
Maitland to a breath test facility in Orange County. At the facility,
the officer read Repple the warning required by Florida’s implied
consent law, and Repple then submitted to a breath test, which
showed an illegal breath-alcohol level. The issue presented by this
case is whether the arresting municipal police officer’s action under the implied consent law at the breath test facility outside the
bounds of his municipality was done without valid legal authority.
In State v. Repple, No. 6D23-1448, 2024 WL 2983786 (Fla. 6th
DCA June 14, 2024), the Sixth District Court of Appeal affirmed the
trial court’s order suppressing the breath test results. The district
court agreed with the trial court that the arresting Maitland officer
lacked authority to request the test and that the test was therefore
invalid because the test was administered outside the City of
Maitland. Before Repple was decided by the Sixth District, the Fifth
District Court of Appeal had addressed the same issue but reached
the opposite conclusion in State v. Torres, 350 So. 3d 421 (Fla. 5th
DCA 2022). In Repple, the Sixth District therefore certified direct
conflict with Torres. The State sought review, and we accepted
jurisdiction based on the certified conflict. See art. V, § 3(b)(4), Fla.
Const.
We conclude that the action of the officer who arrested Repple
in Maitland in subsequently requesting that Repple submit to the
breath test was authorized by Florida’s implied consent law even
though the request was made outside Maitland. We therefore
quash Repple and approve the result in Torres.
-2- I.
Before discussing the reasoning of the decision on review and
the conflict case, we survey the basic elements in the relevant legal
landscape. These elements are (1) the provision of Florida’s
Constitution regarding the extraterritorial exercise of powers by
municipalities; (2) the “under color of office” doctrine, which
condemns the unauthorized extraterritorial exercise of law
enforcement powers; and (3) the provisions of Florida’s implied
consent law, which authorizes the administration of a breath-
alcohol test incident to an arrest for driving under the influence.
A.
1.
Article VIII, section 2(c) of the Florida Constitution provides
that the “exercise of extra-territorial powers by municipalities shall
be as provided by general or special law.” As with any other
extraterritorial exercise of municipal power, legislative authorization
is required for the exercise of a municipality’s law enforcement
authority outside the territorial jurisdiction of the municipality.
Most saliently, in the law enforcement context, express legislative
authorization has been provided for extraterritorial fresh pursuit of
-3- certain offenders or suspected offenders and for arrest incident to
such fresh pursuit in section 901.25, Florida Statutes (2020), and
for extraterritorial cooperation of law enforcement agencies under
the Florida Mutual Aid Act, section 23.1225, Florida Statutes
(2020).
2.
A law enforcement officer acts “under color of office” when the
officer acts with purported authority in the absence of any legal
basis for doing so. The “under color of office” doctrine is in accord
with the limitation on the exercise of extraterritorial power
embodied in article VIII, section 2(c). Both the constitutional
provision and the doctrine recognize that officers must act only
within the scope of the authority granted by law. It is axiomatic
that law enforcement is constrained by law. And the geographical
jurisdiction of a law enforcement agency is one constraint that may
limit law enforcement activities.
In addressing the issue in the case on review, we need not
explore all the contours of the “under color of office” doctrine in
Florida’s jurisprudence. For present purposes it is sufficient to note
this Court’s decision in Phoenix v. State (Phoenix II), 455 So. 2d
-4- 1024 (Fla. 1984), the leading Florida case on the doctrine. In that
case, we discussed the doctrine in deciding the legal validity of
arrests made in St. Lucie County by the Sheriff of Martin County
and one of his deputies. The specific issue—presented by way of a
certified question of great public importance—was whether the
extraterritorial arrests could be justified as “citizen’s arrests” in the
circumstances presented. Those circumstances were that the
arrests “resulted from an intentional surveillance conducted by
police officers outside their jurisdiction, utilizing a police aircraft
and officers on the ground and” that “the police officers used a
marked police car and asserted their official position in stopping the
arrestees.” Id. at 1025 (quoting State v. Phoenix (Phoenix I), 428 So.
2d 262, 267 (Fla. 4th DCA 1982), approved and remanded, 455 So.
2d 1024). We concluded that in those circumstances, the citizen’s
arrests by the Sheriff and one of his deputies outside their
jurisdiction were indeed valid. So we upheld the arrests in which
the “Martin County sheriff and a deputy stopped [a] truck in St.
Lucie County and, guns drawn and blue lights flashing, arrested
the occupants.” Id. at 1024.
-5- We observed that “[c]ommon sense dictates that law
enforcement officials, when they are outside their jurisdictions,
should not be any less capable, by virtue of their position, of
making a felony arrest than a private citizen.” Id. at 1025. 1 We
hastened to add that “because there are jurisdictional limitations on
law enforcement officials’ ability to make arrests, neither should
they have any greater power of arrest outside their jurisdiction than
private citizens.” Id. 2 Agreeing with the district court’s view that
“the sheriff and his officers had not asserted their official position
for any purpose other than to make the arrests,” id. at 1026
(quoting Phoenix I, 428 So. 2d at 266), we also accepted the legal
conclusion that the identification by the officers of “themselves as
police officers when they made the arrest” was not a basis for
invalidating the arrests based on the “under color of office” doctrine,
id. We said that this circumstance was outside the scope of the
1. It has been recognized that citizen’s arrest authority extends to non-felony offenses involving breach of the peace. See, e.g., Edwards v. State, 462 So. 2d 581, 582 (Fla. 4th DCA 1985).
2. But as we will see, this restriction of extraterritorial arrest authority is subject to the power of the Legislature to authorize extraterritorial arrests.
-6- “under color of office” doctrine according to the view of most courts.
That view—which we endorsed—holds that “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. at
1025.
3.
Florida’s implied consent law provides that any person
“operating a motor vehicle within this state” is “deemed to have
given his or her consent to submit to an approved . . . test,”
including a breath-alcohol test. § 316.1932(1)(a)1.a., Fla. Stat.
(2020). Such testing under the implied consent law is to be
performed only “if the person is lawfully arrested for any offense
allegedly committed while the person was driving or was in actual
physical control of a motor vehicle while under the influence of
alcoholic beverages.” Id. The law further provides that the test
“must be incidental to a lawful arrest and administered at the
request of a law enforcement officer who has reasonable cause to
believe such person was driving or was in actual physical control of
the motor vehicle within this state while under the influence of
-7- alcoholic beverages.” Id. The arrestee “shall be told that his or her
failure to submit to any lawful test” will result in certain legal
consequences as specified in the statute. Id.
B.
Against the backdrop of these legal authorities, we examine
the conflict case before turning to the decision on review.
The decision in Torres dealt with a DUI arrest for an offense in
Winter Park that was made by a Winter Park police officer who,
after the arrest, transported the defendant to an Orange County
test facility outside Winter Park. At that facility, the arresting
officer requested that the defendant submit to a breath test. The
defendant complied, and the resulting test showed an unlawful
breath-alcohol level. In determining whether the test results should
be suppressed, the Fifth District described the “narrow issue”
before it as whether the Winter Park police officer—even though
outside the bounds of Winter Park—“nevertheless retained the
power or authority to request that the defendant submit to a breath
test as part of an ongoing DUI investigation.” Torres, 350 So. 3d at
424. Discussing the “under color of office” doctrine and our
-8- decision in Phoenix II, the Fifth District further stated that the
question boiled down to whether the Winter Park officer “post-
arrest, while outside of his territorial jurisdiction, used the color of
his office to obtain [the breath test] evidence that a private citizen,
under the implied consent statute, could not have obtained.” Id.
The district court went on to identify an “exception” to the
“under color of office” doctrine that “allows a municipal officer to
continue to act or investigate outside of his or her geographic
jurisdiction if the subject matter of the officer’s investigation
originates inside their city limits.” Id. The court cited certain
district court decisions as establishing this supposed exception.
Ultimately, the Fifth District held “that the ongoing investigation
exception to the color of office doctrine” applied to the conduct of
the Winter Park police officer in requesting the breath test. Id.
The court explained that “the breath test evidence obtained by
[the Winter Park police officer] outside of his municipality was
directly related to the arrest and ongoing investigation for the DUI
committed by the defendant within [the officer’s] jurisdiction.” Id.
at 426. The Winter Park police officer “arrested the defendant
because he had probable cause to believe that the defendant
-9- committed the crime of DUI within” Winter Park. Id. According to
the Fifth District, once that DUI arrest took place, “the color of
office doctrine did not preclude [the arresting officer], as part of his
ongoing investigation that originated inside the municipal city
limits, from then taking the defendant to the Breath Test Center in
Orlando and requesting that he submit to a breath test.” Id.
In Repple, the Sixth District set the stage by describing the
argument that the defendant successfully presented to the trial
court to obtain suppression of the breath test results. Relying on
what we said in Phoenix II, the defendant contended that the
Maitland police officer—in requesting the defendant’s submission to
the breath test outside Maitland—“unlawfully asserted his official
authority because he acted outside of his territorial jurisdiction to
obtain evidence not available to a private citizen using his or her
own senses.” Repple, 2024 WL 2983786, at *2. The district court
then described the State’s reliance on the broad continuing
investigation exception—which had been referred to in Torres—to
justify the action outside the arresting officer’s territorial
jurisdiction. The court also pointed out that the State more
- 10 - specifically argued “that because the DUI investigation began in
Maitland, a Maitland municipal police officer had the power to use
his official authority, outside the city limits of Maitland, to read
Defendant the implied consent warning in accordance with section
316.1932 to obtain a breath test.” Id.
Recognizing that the extraterritorial exercise of municipal
police authority must be authorized by law, the Sixth District found
that no such authorization had been shown to be applicable to the
actions of the Maitland officer at the testing facility outside his
territorial jurisdiction. The court noted that the officer’s actions
might have been authorized by a proper agreement under the
Florida Mutual Aid Act but that no such agreement had been
presented in evidence by the State. Based on an analysis of the
relevant case authorities—which we need not rehearse here—the
court concluded that there was no legal basis for any broad
“continuing investigation exception.” From its survey of the caselaw
history, the district court concluded that “a stand-alone, continuing
investigation exception may have inadvertently slid into Florida’s
jurisprudence.” Id. at *7.
- 11 - Furthermore, the district court said that “the premise of the
State’s argument [was] that courts can grant extraterritorial police
power to municipalities.” Id. at *5. Relying on article VIII, section
2(c)—which requires authorization by general or special law—the
district court rejected any such judicial power to grant
extraterritorial police authority.
The court recognized that under the implied consent law, the
breath test was required to be incidental to a lawful arrest and
administered at the request of a law enforcement officer with
reasonable cause to believe that the arrestee was driving while
under the influence of alcohol. According to the district court’s
analysis, when the Maitland police officer requested that the
defendant submit to the breath test at the testing center outside
Maitland, the officer was not acting as a legally authorized law
enforcement officer but was instead acting “under color of office.”
That officer “was without the power to use his official authority
outside the city limits of Maitland to obtain evidence not available to
a private citizen.” Id.
- 12 - II.
The Sixth District correctly observed that the courts lack
authority to grant municipal law enforcement officers
extraterritorial powers. The Constitution makes clear that any such
powers must be derived from “general or special law.” Id. at *4
(citing art. VIII, § 2(c), Fla. Const.). And it is true that no legal
provision specifically grants extraterritorial authority to a municipal
police officer to request that an arrestee arrested in the officer’s
jurisdiction submit to a breath test under the implied consent law.
But that is not the end of the matter.
It is a venerable principle in the law that “whenever a power is
given by a statute, everything necessary to making it effectual or
requisite to attaining the end is implied.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 192-93
(2012) (quoting 1 James Kent, Commentaries on American Law
*464); see also 2B Norman J. Singer & Shambie Singer, Statutes
and Statutory Construction § 55:4 (7th ed. 2012) (Implied powers).
Not long after Florida became a state, this Court recognized the
principle. See Mitchell v. Maxwell, 2 Fla. 594, 597 (1849) (“The law
is well settled that, whenever a power is given by the statute,
- 13 - everything necessary to the making it effectual is given by
[implication].” (citing Kent, supra, among others)). Since “[t]he
implications . . . of a statute are as effective as are the express
provisions,” the absence of express authority does not necessarily
defeat a claim to a specific power. Cassady v. Sholtz, for Use &
Benefit of Edwards, 169 So. 487, 490 (Fla. 1936).
We have applied the principle in the context of governmental
powers. See Coca-Cola Co., Food Div., Polk Cnty. v. State, Dep’t of
Citrus, 406 So. 2d 1079, 1081 (Fla. 1981) (“The powers of [the
Department of Citrus] and similar agencies include both those
expressly given and those given by clear and necessary implication
from the provisions of the statute.” (quoting City Gas Co. v. Peoples
Gas Sys., Inc., 182 So. 2d 429, 436 (Fla. 1965))); Deltona Corp. v.
Fla. Pub. Serv. Comm’n, 220 So. 2d 905, 907 (Fla. 1969) (stating in
applying statute granting powers to Public Service Commission that
the “statutory grant of power or right carries with it by implication
everything necessary to carry out the power or right and make it
effectual and complete”); see also Brock v. Bd. of Cnty. Comm’rs of
Collier Cnty., 21 So. 3d 844, 847 (Fla. 2d DCA 2009) (citing Deltona
Corp. in support of holding that “[a] public officer with the right and
- 14 - responsibility to maintain custody of public funds necessarily has
the authority both to investigate circumstances in which public
funds have wrongfully been withheld from the officer’s custody and
to seek to obtain custody of the withheld funds”).
We do recognize that this principle might be subject to abuse.
It “must be applied with caution, lest the tail of what is implied wag
the dog of what is expressly conferred.” Scalia & Garner, supra, at
193. So an implied authority only arises by “fair implication and
intendment incident to and included in the authority expressly
conferred for the purpose of carrying out and accomplishing the
purposes for which” the express authority was granted. State ex rel.
R.R. Comm’rs v. Louisville & N.R. Co., 49 So. 39, 39 (Fla. 1909).
Implied authority arises to carry out the legislative purpose—as
reflected in the statutory text and context—not to alter what the
Legislature has provided by statute.
Here, the extraterritorial action in requesting the test was an
integral and necessary part of the law enforcement process initiated
in the officer’s jurisdiction under the implied consent law. This law
provides that the breath test “must be incidental to” the DUI arrest.
§ 316.1932(1)(a)1.a., Fla. Stat. (2020). Use of the available testing
- 15 - facility outside the jurisdiction of the arresting officer was necessary
to make effectual the legislative design in the orderly
implementation of the implied consent law. That law necessarily
contemplates that the process initiated by the officer through the
arrest of a person driving under the influence will ordinarily be
completed through the request made by that same officer that the
arrestee submit to a breath test. In the specific context of the
implied consent law, the jurisdiction to complete the second step in
the two-step process is necessarily implied.
Because the extraterritorial authority exercised by the officer
arose by clear and necessary implication from the implied consent
law, the officer was not acting “under color of office.” And because
our resolution of this case depends on the particular provisions of
the implied consent law—with the two-step process we have
described—we have no occasion to address the broader “continuing
investigation exception” discussed in Repple and Torres.
III.
The implied consent statute clearly contemplates that an
officer making a DUI arrest will complete his responsibilities under
the statute by requesting the arrestee to submit to a breath test.
- 16 - The State here correctly argued that the officer had authority under
that law to request the test outside his jurisdiction. Because the
use of a testing facility outside the officer’s jurisdiction cannot
reasonably be understood to negate the officer’s responsibility to
complete his duties under the statute, we quash Repple and
approve the result in Torres.
It is so ordered.
MUÑIZ, C.J., and LABARGA, COURIEL, and FRANCIS, JJ., concur. GROSSHANS, J., concurs in result only with an opinion. SASSO, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
GROSSHANS, J., concurring in result only.
I ultimately agree that we must quash the Sixth District’s
decision. However, I would do so based on different legal grounds.
All members of this Court agree that municipal officers generally
lack law enforcement authority beyond the geographic boundary of
the municipality absent certain exceptions. Nevertheless, the Court
is divided on how this rule applies here, in light of the facts of the
case.
- 17 - In my view, though, even if the officer’s extraterritorial acts
were not explicitly authorized as noted by the dissent, the
exclusionary rule should not be the remedy for violations of that
principle. Significantly, I find no indication that the rule against
extraterritorial assertions of authority exists to protect the interests
of those accused of a crime. Instead, as I understand it, the rule
protects the autonomy of neighboring cities and counties. 63 C.J.S.
Municipal Corporations § 620. The severe remedy of suppressing
relevant and probative evidence at a criminal trial bears no logical
relationship to the autonomy interests served by the mandate. See
Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006) (declining to
apply exclusionary rule where statute did not “implicate[] . . .
Fourth and Fifth Amendment interests”). And to the extent the
facts here can be perceived to result in a statutory violation, it is
significant that the applicable statutes do not contain any
exclusionary rule to remedy their violation. See Jenkins v. State,
978 So. 2d 116, 130 (Fla. 2008) (refusing to apply any exclusionary
rule where text of applicable statute did not fairly support such a
remedy).
- 18 - Accordingly, even if the officer improperly exerted authority
beyond the bounds of his municipality, suppression was not
warranted as the remedy. Thus, I find that the lower court
committed error in suppressing Repple’s breath-test results. 3
SASSO, J., dissenting.
Because I disagree with the majority’s reasoning, and the State
has not demonstrated error, I respectfully dissent.
In my view, this issue boils down to whether section 316.1932,
Florida Statutes (2020), impliedly grants extraterritorial power to
municipal officers for the purpose of requesting a breath test. I
frame the issue this way because, as the majority observes, if a
municipality is to exercise powers outside its borders, the authority
to do so must come from the Legislature by general or special law.
Art. VIII, § 2(c), Fla. Const.; see § 166.021(3)(a), (4), Fla. Stat. (2020)
(prohibiting municipalities from enacting laws for the exercise of
extraterritorial power); see also Op. Att’y Gen. Fla. 82-01 (1982)
(concluding that absent statutory authority a municipality had no
3. Considering the unique procedural circumstances of this case—including a transfer between district courts during the briefing process—I find that this issue was sufficiently preserved to reach it here.
- 19 - extraterritorial power to operate and maintain or contract for
operation and maintenance of private utility system). The majority
says the Legislature has done so, applying the predicate-act canon
to section 316.1932. While I agree that the canon is venerable, I do
not agree that it applies here.
Implied powers arise when the express text leaves a genuine
gap—implied powers must be truly necessary to carry out
an explicitly granted power or right, not just convenient or generally
related. See generally Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 193 (2012) (explaining the
application of the predicate-act canon); 2B Norman J. Singer &
Shambie Singer, Statutes and Statutory Construction § 55:3 (7th ed.
2012) (Standards for determining what should be implied) (“[I]t is
not sufficient that the act is advantageous or convenient to the
major power conferred, or even effectual in the exercise of it. The
power to be supplied by such process must be practically
indispensable and essential in order to execute the power actually
conferred.” (citation omitted)). Typically, we see a valid implied
power when its existence is required to effectuate an express grant
of power. So, for example, the right to counsel may carry with it the
- 20 - right to use one’s own untainted funds to pay for an attorney. See,
e.g., Luis v. United States, 578 U.S. 5, 35 (2016) (Thomas, J.,
concurring in the judgment).
There are two issues with applying the predicate-act canon,
and thus reading implied powers, into the implied consent statute.
First, section 316.1932 does not clearly fit within the rubric of an
express grant of power to municipalities. Section 316.1932 is
structured as a command to drivers in the state of Florida—accept
the privilege to drive here and you have also consented to submit to
certain tests under specific circumstances. § 316.1932(1)(a)1.a.
The statute then goes on to prescribe the specific circumstances
under which a breath test can be administered, including specifying
quality-control standards and mandating that tests are performed
substantially according to approved methods. See, e.g., §
316.1932(1)(a)2. The statute requires a warning about the
implications of refusing a breath test and prescribes consequences
for refusal. § 316.1932(1)(a)1.a. So overall, in my view the statute,
rather than granting officers powers or duties from which
extraterritorial authority can be implied, should be read more as a
limitation on government power—prescribing limited and specific
- 21 - procedures through which a citizen can be both deprived of liberty
and subjected to a search.
Second, and more importantly, even if I agree that the
predicate-act canon is a natural fit for the statute, I cannot agree
that it applies here. It is not necessary, in the way the predicate-act
canon contemplates, for a municipal officer to leave his or her
jurisdiction to conduct the breath test. It is not the grant of
statutory power that demands the officer leave his jurisdiction, it is
the municipality’s failure to have an adequate testing apparatus. In
fact, it is not even necessary to conduct a breath test to prosecute
the crime with which Repple was charged. So, I disagree that
application of the predicate-act canon justifies the majority’s
determination.
I recognize that my conclusion results in a seemingly
impractical outcome. But in my view, the State, as petitioner, has
the burden to demonstrate reversible error. Bolick v. Sperry, 82 So.
2d 374, 376 (Fla. 1955) (“Under our system of procedure the
burden is always upon the appellant to make reversible error clearly
appear.”). It has not done so. So, while I remain open to the idea
that something is missing in this case, whether it is an inter-local
- 22 - agreement as suggested by the Sixth District, or some other source
of power, the State has not satisfactorily identified either a source of
power or an argument convincing me the Sixth DCA erred.
Finally, in my view the State did not properly preserve its
argument that suppression is an incorrect remedy. For that
reason, the trial court properly excluded the evidence and the Sixth
District properly affirmed. I therefore respectfully dissent.
Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions & Constitutional Construction
Sixth District - Case No. 6D2023-1448
(Orange County)
James Uthmeier, Attorney General, Jeffrey Paul DeSousa, Acting Solicitor General, Nathan A. Forrester, Chief Deputy Solicitor General, Rajan K. Vasisht, Solicitor General Fellow, Rebecca Rock McGuigan, Chief Assistant Attorney General, and Richard A. Pallas, Jr., Assistant Attorney General, Tallahassee, Florida,
for Petitioner
Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, Florida,
for Respondent
- 23 -