Rehearing Denied May 4, 2012.
Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert Jay Krauss, Bureau Chief, Sara Macks, and Helene S. Parnes, Assistant Attorneys General, Tampa, FL, for Petitioner.
Christopher E. Cosden of the Wilbur Smith Law Firm, Fort Myers, FL, for Respondent.
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). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. 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.
On March 27, 2007, after a traffic stop, Michelle Bowers was arrested and charged in county court with the misdemeanor offenses
of possessing marijuana, possessing drug paraphernalia, and driving under the influence (DUI). Bowers, 23 So.3d at 768. Bowers filed a motion to suppress all evidence obtained during the search that followed the stop, claiming that the stop was illegal because it was not based upon probable cause that she had committed a traffic infraction. Id.
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 observed 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 county 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, 785 So.2d 709, 711 (Fla. 4th DCA 2001), in which the Fourth District held that the fellow officer rule does not require an arresting officer to have firsthand knowledge of an initial traffic stop in order to be able to testify with regard to the circumstances surrounding that stop. Bowers, 23 So.3d at 769-70.
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, 785 So.2d at 710. After the stop, a second officer arrived at the scene and tested Ferrer for use of alcohol or drugs and ultimately arrested him for driving under the influence. Ferrer filed a motion to suppress " any and all evidence obtained as the result of an illegal stop," challenging the initial traffic stop, not the DUI arrest. Id. The State subpoenaed the officer who initially stopped Ferrer, but that officer failed to attend the suppression hearing. Id.
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. Although testifying that the initial officer told him that he observed Ferrer driving with an expired tag, the second officer did
not testify that he had personally observed an expired tag on Ferrer's car. Id. Ferrer argued that the evidence of his intoxication should be suppressed because there was insufficient evidence to support the validity of the stop. Id. Ferrer claimed that the county court could not rely exclusively on the hearsay evidence of what the initial officer told the second. Id. The county court denied the motion to suppress, and the circuit court affirmed the order, based on its finding that, under the fellow officer rule, the initial officer's knowledge had been imputed to the second officer when he made the arrest. See id.
On petition for second-tier certiorari review, the Fourth District denied the petition, holding that the second officer's hearsay 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 Bower ...