Lead Opinion
We have for review the decision of Bowers v. State,
FACTS
On March 27, 2007, after a traffic stop, Michelle Bowers was arrested and charged in cоunty court with the misdemeanor of
The county court held an evidentiary hearing on the motion to suppress, but the officer who performed the initial stop did not appear for the hearing. Id. The State called as a witness a second officer to testify because the second officer had performed the DUI investigation and subsequent arrest, even though that officer was not present at the scene during the initial stop of the vehicle. Id. The Second District noted that the second officer “never оbserved Bowers’ driving, and his understanding of the reason she was stopped was based solely on what [the initial officer] told him.” Id. Bowers’ counsel raised a hearsay objection to the second officer testifying as to what the initial officer told him, and the State responded that the second officer’s testimony was admissible under the fellow officer rule. Id. Although the county court overruled the defense’s objection, the trial court was troubled by its inability to obtain clarification about the details of the stop and ultimately granted Bowers’ motion to suppress. See id. at 768-69.
The State appealed the suppression order to the circuit court, which reversed the order of the county court. Id. at 769. The circuit court found that the arresting officer’s testimony regarding what another officer told him was admissible under the fellow officer rule and further “concluded that the cоunty court’s decision to grant the motion to suppress was not supported by competent, substantial evidence or the law.” Id. As to the admissibility of the arresting officer’s testimony to establish the traffic violation, the circuit court expressly relied on Ferrer v. State,
Bowers petitioned the Second District for second-tier certiorari review of the circuit court decision. See id. at 768. The Second District granted the petition and, after reviewing Florida cases setting forth the fellow officer rule and reviewing the rules of evidence, the court held that “Ferrer was wrongly decided because it misapplies the fellow officer rule to circumvent the hearsay rule of evidence.” Id. at 769.
In Ferrer, one officer stopped Ferrer’s car for a traffic violation involving an expired tag. Ferrer,
The hearing was continued, and despite being subpoenaed a second time, the officer who stopped Ferrer once again failed to appear. Id. During the suppression hearing, the county court heard testimony only from the officer who arrived after the vehicle had already been stopped. Id. Althоugh testifying that the initial officer told him that he observed Ferrer driving with an expired tag, the second officer did
On petition for second-tier certiorari review, the Fourth District denied the petition, holding that the second officer’s hеarsay testimony was properly admitted under the fellow officer rule and sufficient to validate the initial officer’s stop of Ferrer’s vehicle. See id. at 712. After determining that Ferrer was wrongly decided, the Second District in Bowers quashed the circuit court and certified conflict with Ferrer. Bowers,
ANALYSIS
The certified conflict issue requires us to determine whether the fellow officer rule allows an officer who was not involved in the initial traffic stop or in the investigation at the time of the stop to testify about the basis for the initial stop during an evidentiary suppression hearing in order to establish probable cause for the initial stop. In Ferrer, the Fourth District extended the fellow officer rule to allow this hearsay testimony in a suppression hearing to support probable cause for the initial stop; in Bowers, the Second District disagreed, expressly holding that the fellow officer rule was never intended to be a rule of evidence that allows for the admission of hearsay evidence under these circumstances.
Background of the Fellow Officer Rule
The Second District in Bowers accurately set forth the purpose of the fellow officer rule as a rule developed to assist officers investigating in the field to make arrests and conduct searches:
The fellow officer rule provides a mechanism by which officers can rely on their collective knowledge to act in the field. Under this rule, the collective knowledge of officers investigating a crime is imputed to each officеr and one officer may rely on the knowledge and information possessed by another officer to establish probable cause. See Whiteley v. Warden, Wyo. State Penitentiary,401 U.S. 560 , 568,91 S.Ct. 1031 ,28 L.Ed.2d 306 (1971); State v. Maynard,783 So.2d 226 , 229 (Fla.2001); Strickroth v. State,963 So.2d 366 , 368 n. 1 (Fla. 2d DCA 2007) (“ ‘[T]he collective knowledge of police investigating a crime is imputed to each member....’”) (quoting Johnson v. State,660 So.2d 648 , 657 (Fla.1995)); State v. Boatman,901 So.2d 222 , 224 (Fla. 2d DCA 2005) (“[T]he rule operates to impute the knowledge of one officer in the chain of investigation to another.”). “It can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers of whom at least one possesses the required level of suspicion.” Strickroth,963 So.2d at 368 n. 1.
Under the rule, one officer may rely on the knowledge and information possessed by another officer to establish probable cause for an arrest for a felony or misdemeanor offense, Boatman,901 So.2d at 224 , or to establish probable cause for a search, State v. Peterson,739 So.2d 561 , 567 (Fla.1999).
Bowers,
Although the fellow officer rule is said to have its origin in the United States Supreme Court opinion of Whiteley v. Warden,
Certainly police officers callеd upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow offiсers to make the arrest.
Id. at 568,
This Court first had occasion to discuss the fellow officer rule in a case where there had been a valid arrest warrant issued but where the officer who actually made the arrest had no knowledge of that warrant. See Johnson v. State,
In State v. White,
Johnson and White both discussed the fellow officer rule in the context of arrests, but neither reached the issue of whether the rule applies to search warrants as well. In State v. Peterson,
The Court explained that the fellow officer rule is a constructive knowledge rule and that the affiant need not have personal knowledge of the informant’s veracity if another officer working in connection with the affiant has such knowledge. Id. at 564-65, 567. We stated the rationale behind this rule as follows: “In light of the need for efficient law enfоrcement, this finding is both practical and necessary, because it allows reliable informants to be utilized by more than one officer.” Id. at 567 (citing People v. Lopez,
Accordingly, as applied in Florida, the fellow officer rule provides that if an officer relies on a chain of evidence to formulate the existence of probable cause for an arrest or a search and seizure, the rule does not require the officer to possess personal knowledge of each link in the chain of information if the collective knowledge of all the officers supports a finding of probable cause. The rule allows an officer to testify to a previous link in the сhain for the purpose of justifying his or her own conduct. See, e.g., State Dep’t of Highway Safety & Motor Vehicles v. Porter,
Ferrer and Bowers
Although our prior cases involved whether the collective knowledge of fellow officers could support a search or an arrest, none of the cases addressed whether the fellow officer rule could be used as an evidentiary tool to circumvent otherwise inadmissible hearsay testimony. In both Ferrer and Bowers, the initial traffic stop was made by one officer and then another officer made the arrest for DUI after testing the defendant for use of drugs and alcohol.. The issue in both cases was not the DUI arrest but the validity of the initial traffic stop. In both Ferrer and Bowers, the police officer whose observations formed the basis fоr the initial stop
Hearsay is out-of-court testimony “offered in evidence to provе the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2007); see also Breedlove v. State,
In Bowers, the Second District recognized that “[t]he issue raised in Bowers’ motion to suppress was not whether there was probable cause for [the second officer] to conduct a DUI investigation and make an arrest but rather whether there was probable cause for [the initial officer] to stop Bowers.” Bowers,
At [the] point of the traffic stop, there was no “investigative chain” during which colleсtive knowledge was imputed to Officer Suskovich to provide probable cause for the traffic stop. Officer Sus-kovich was the sole officer with any knowledge leading up to and culminating in the traffic stop. Officer Suskovich did not rely on any knowledge or information possessed by Officer Tracy or any other officer to establish probable cause to stop Bowers. The fact that Officer Tracy was called to thе scene after the stop was completed for the purpose of performing a separate DUI investigation does not make him a fellow officer for purposes of determining whether there was probable cause to support the traffic stop.
Id.
Specifically, Officer Tracy was called to testify as to whether Officer Suskovich possessed probable cause at the time that Officer Suskovich initiated the stop. However, at the time of the stop, Officer Tracy had no knowledge as to the information that Officer Suskovich possessed when the stop was initiated. Officer Tracy was not involved at that time in an ongoing investigation of Bowers; he was not present at the time of the stop and did not witness Bowers’ driving — he learned the relevant information after the fact, when he arrived to perform a DUI investigation and arrеst.
As this Court stressed in Peterson, another “unknowing” officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer “after the fact.” Peterson,
Our ruling is consistent with our precedent and the purpose of the fellow officer rule. The fellow officer rule has
This Court has never apрlied the fellow officer rule, as the Fourth District did in Ferrer, to allow an officer who had no firsthand knowledge of the reasons for the stop and was not yet involved in the investigation to testify regarding what the initial officer told him in order to establish the validity of the initial stop. To do so would be inconsistent with the rationale and holding articulated in Peterson. Moreover, we reject the State’s argument that Lara v. State,
CONCLUSION
For the reasons addressed above, we conclude that not only was Ferrer wrongly decided but that it departed from our precedent in Peterson, which stressed the limits of the fellоw officer rule. We disapprove the decision of the Fourth District in Ferrer and approve the decision of the Second District in Bowers. Our holding recognizes the need for efficient, practical law enforcement while still ensuring the full protection of the defendant’s constitutional rights.
It is so ordered.
Dissenting Opinion
dissenting.
The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts. As discussed in my dissent to this Court’s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles,
Further, I disagree with the majority’s failure to address the jurisdictional question raised in the decision below.
Accordingly, I dissent.