The Fellow Officer Rule and It's Implications in DUI Cases  -  continued

Whitley v. Warden of Wyoming Penitentiary, 401 U.S. 560. 568, 91S. Ct. 1031_, 28 L.Ed.2d 306 (1971). See, e.g. State v. Sams, 676 So. 2d 1045 (Fla. 5th DCA 1996) (where DUI blood alcohol test results were challenged, reversing trial court order that erroneously held that arresting officer had to possess the facts demonstrating probable cause; it was sufficient that supervisor who initiated blood draw order had probable cause); Polk v. Williams, 565 So. 2d 1387, 1390 (Fla. 5th DCA 1990) (It is sufficient if an officer initiating the chain of communication receives information from an official source of eyewitness who, it seems reasonable to believe, is telling the truth.").

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).

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).