State of Florida v. Bryan Allen Repple

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.

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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

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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

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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.

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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.

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“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

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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.

1.

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

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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

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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.

2.

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

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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.

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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.

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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,

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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

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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

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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.

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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.

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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).

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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.

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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

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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

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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

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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

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