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.

The Virginia Court of Appeals ruled that the arrest was illegal because Bradshaw never saw Durant driving in Suffolk and thus he could not arrest him for DUI committed there. Without a legal arrest, the breathalyzer results obtained pursuant to the arrest were not admissible.

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.

The "Fellow Officer" Rule

In 1965, the Supreme Court ruled that observations of fellow officers of the government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number. "United States v. Ventresca, 380 U.S. 102, 85S. Ct. 741, 13 L.Ed.2d 684 (1965). Six years later, the court reaffirmed the notion that police officers could rely on other officers' information as a basis to establish probable cause and even could act entirely on information possessed by other officers, but cautioned that the arrest ultimately was as good only as the underlying information. That is, even though the arresting officer did not personally possess facts sufficient to establish probable cause, the arrest was not invalid so long as he was acting in concert with or at the direction of a fellow officer who did have such facts:

We do not, of course, question the Laramie police were entitled to act on the strength of the radio bulletin. Certainly, the police officers called upon to aid other officers in executing arrest warrants are entitled to assume 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 investigating officer to rely on fellow officers to make the arrest.