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The Fellow Officer
Rule and It's Implications in DUI Cases
Late one evening, Officer Smith witnesses John Defendant
driving down the road, speeding and weaving as he goes.
Officer Smith stops Defendant. Smith approaches the car
and notices the indicia of alcohol consumption. Smith
calls DUI specialist Officer Jones to the scene. Jones
administers roadside sobriety exercises, concludes that
he has probable cause to arrest Defendant for driving
under the influence and does so. Is the arrest legal?
Under the Fourth Amendment to the United States Constitution,
the people have the right to be free from unreasonable
searches and seizures of their persons, houses, papers
and effects.* In the context of arrests, this provision
is given life by the requirement that any arrest must
be supported by probable cause.*
At common law, an officer could arrest for misdemeanors
only when those crimes were committed in the officer's
presence. This rule was not incorporated into the Fourth
Amendment. Barry v. Fowler, 902 F.2d 770, 772
(9th Cir. 1990). Nevertheless, many states have passed
laws codifying the rule, including, California, Delaware,
Florida, Minnesota, Ohio, Texas, Virginia, and Washington.
In such states, an arresting officer must have personally
witnessed the misdemeanor conduct to make the arrest;
if the arresting officer did not witness all elements,
the arrest is invalid.
Such was the case in Durant v. City of Suffolk,
358 S.E.2d 732 (Va. Ct. App.1987), where the off-duty
police chief of the City of Suffolk, Virginia, saw Edsel
Durant swerving on a Suffolk road. The chief followed
Durant for five or six miles into a neighboring county
and then radioed for assistance from the nearest officer.
The responding officer, Officer Bradshaw, was from the
neighboring county. Bradshaw arrested the defendant for
having driven under the influence in Suffolk.
Exceptions to the Misdemeanor
Rule
There are typically two ways the government will attempt
to justice a misdemeanor DUI arrest when arresting officer
has not witnessed the alleged DUI conduct personally:
by use of the "fellow officer" rule, and by
use of the "necessary Assistance" rule. |
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