Fellow Officer Rule – Not a Rule of Evidence

Stafford Police Department making a traffic st...

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I’m way behind, I know.  We just moved our office and just getting settled and, thank God, we have been busy.  I wanted to highlight the case below because it addresses the fellow officer rule and the establishment of probable cause for a stop.  Stop motions can sometimes win a case and the fellow officer rule has been used by prosecutors to skirt the need to have the stopping officer present at suppression hearings (or get around the fact that the stopping officer fails to appear).  This case also follows the Second District Court of Appeal’s reasoning which seems to always be a step or two ahead of the rest of the state.

FLORIDA vs. BOWERS, 37 Fla. L. Weekly S136a (Fla. Feb 23, 2012):
(PER CURIAM.) We have for review the decision of Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009), in which the Second District Court of Appeal certified conflict with the decision of the Fourth District Court of Appeal in Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001).
The conflict issue involves the application of the fellow officer rule to testimony in a motion to suppress hearing where the defendant is challenging the validity of a traffic stop. We hold that the fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop. For the reasons explained below, we approve Bowers and disapprove Ferrer.
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.
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 officer and one officer may rely on the knowledge and information possessed by another officer to establish probable cause. 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.
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 or to establish probable cause for a search.

In other words, an officer in the field may need to act immediately based upon what he or she is told by a fellow officer. However, the Second District correctly recognized that the fellow officer rule is not a rule of evidence.

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 chain for the purpose of justifying his or her own conduct. However, this is not the same as permitting an officer to testify as to knowledge that another officer possessed in order to justify the other officer’s conduct.
This Court has never applied 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, 464 So. 2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.

Citations to authority have been omitted to make for easier reading. This opinion delves deeply into the Federal history of the fellow officer rule and is a good source for authority, although now you will only need this one citation.

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