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The Fellow Officer
Rule and It's Implications in DUI Cases - continued
There are no magic words needed to legitimate the arrest.
State v. Sams, 676 So. 2d 1045 (Fla. 5th DCA
1996); Carroll v. State, 497 So. 2d 253 (Fla.
3d DCA 1985). However to rely on the rule, the officer
possessing the facts showing probable cause must have
had at least some minimal communication with the arresting
officer. United States v. Agostino, 608 F.2d
1035 (5th Cir. 1979). Thus, in State v. Cooley,
457 A.2d 352 (Del. 1983), the Supreme Court of Delaware
ruled that where the only officer who has probable cause
to arrest the defendant for DUI never had communication
with the officer who made the decision to arrest, and
the arresting officer himself had no probable cause, the
arrest was invalid and breath results obtained as a result
of the arrest were suppressed. The court said:
[T]he State misunderstands [the imputed knowledge]
principle here. To say in the abstract that probable
is to be evaluated on the basis of the collective
information of the police ignores the underlying
assumption -- and factual reality -- that there
is some communication between those officers, who
do know facts amounting to probable cause, and those
who do not. This situation is not one in which one
or several officers a warrantless arrest, held by
several officers is pooled to make an affidavit
or one in which information supporting an application
for a warrant. When an officer makes an arrest without
first obtaining judicial approval in the term of
a warrant, the officer acts in the stead of a magistrate.
If "no officer connected to the arrest knows
the facts which might justify it, no officer exercises
the judgment required as a substitute for judicial
approval. Information scattered among various officers
in a police department cannot substitute for possession
of the necessary facts by a single officer related
to the arrest." Commonwealth v. Gambit,
P.Super., 274 PASuper. 571, 418 A.2d 554, 557 (1980).
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Cooley, 457 A.2d at 355-56 (citations omitted).
Cf. State v. Williams, 904 P.2d 1019, 1021 (Mont.
1995( ("it is our policy that courts should evaluate
probable cause on the basis of the collective information
of the police rather than that of only the officer who
performs the act of arresting").
The "Fellow Officer"
Rule in DUI Cases
If John Defendant in our example above had the misfortune
of having been stopped for DUI in a state such as Florida
or Minnesota, he would find that the legislature has carved
out an exception to the misdemeanor presence rule specifically
for driving under the influence cases.
In such states, the law codifies the fellow officer rule
to the extent that it permits one officer to rely on the
observations of another in formulating probable cause
for the arrest. Returning to our example, then, Officer
Smith witnessed the driving pattern, but lacked probable
cause to arrest.
Officer Jones may have probable cause as to the impairment
but did not actually see Defendant driving. Accordingly,
to support the arrest, Jones must rely on Smith's observation
to piece together probable cause. The statute allows the
officers to salvage the arrest. E.g., State, Dep't
of Highway Safety and Motor Vehicles v. Shonyo, 659
So .2d 352 (Fla. 2d DCA 1995) (driver's license suspension
proper because probable cause affidavit of arresting deputy
included description of defendant's actions as witnessed
by another officer). |
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