Convictions Cannot Be Based on Hearsay Testimony From Police, Florida High Court Rules – State v. Bowers

March 7, 2012 by David S. Seltzer

A large part of my job as a Miami drug crimes defense attorney is defending clients against police overreaching in drug arrests. In particular, I often see cases in which the police pull over a driver for vague reasons or no reason, then find the driver in possession of drugs and make an arrest. In this type of case, drivers can and should challenge the legality of the traffic stop, because any evidence from an illegal traffic stop is tainted and cannot be used. That was what Michelle Bowers attempted to do in State v. Bowers, a Florida Supreme Court decision that ultimately concluded that testimony used in her case was illegal. A police officer other than the arresting officer testified at trial, invoking the “fellow officer” rule, but the high court decided that this could not trump the hearsay rule.

The opinion does not describe the original traffic stop, but says Bowers was arrested for DUI, possession of marijuana and possession of drug paraphernalia. She moved to suppress all evidence from the traffic stop, alleging it was illegal because there was no probable cause that she’d committed a traffic infraction. However, when the county court heard the motion to suppress, the arresting police officer did not testify. Instead, the court heard testimony from another officer who was not present at the stop but had handled the subsequent DUI investigation. The Florida DUI defense lawyer for Bowers raised an objection to this testimony as hearsay, but the court ultimately allowed it under the fellow officer rule, which permits police officers to rely on one another’s knowledge and information to establish probable cause for a search. Nonetheless, it found the testimony lacking in details and granted the motion to suppress. The circuit court reversed, finding the testimony admissible under the fellow officer rule, but the Second District Court of Appeal reversed again.

Because this decision conflicted with that of the Fourth District in Ferrer v. State, the Second District certified a conflict among the appeals courts to the Florida Supreme Court. That body ultimately agreed with the Second that the Fourth had wrongly decided Ferrer, impermissibly allowing courts to circumvent the ban on hearsay testimony using the fellow officer rule. In that case, a police officer who had arrived on the scene after the traffic stop was permitted to testify as to the legality of the traffic stop itself, using the fellow officer rule that permits officers to act in the field according to other officers’ knowledge. However, the Second found that this was not a rule of evidence — and the high court agreed. The fellow officer rule doesn’t apply to this situation because the officers weren’t relying on shared information to investigate the traffic stop, the court said; the first officer was the only one who could testify. Finding out information after the fact does not allow a subsequent officer to avoid the hearsay rule, the court noted. Thus, it upheld the Second and disapproved the Fourth.

As a Fort Lauderdale marijuana possession defense attorney, I’m pleased with this decision. In fact, this decision could affect any case that started with a traffic stop, if the defendant can prove that the traffic stop was not legal, such as DUI cases, charges for possession of a firearm, outstanding warrants and more. In many cases, a traffic stop is made under a pretext like an expired registration or a broken tail light, which is technically a violation but not so unsafe that an officer couldn’t let it go. If the officer doesn’t happen to like the look of the driver (or worse), he or she can use this minor violation as an excuse to pull the driver over and fish for a more serious violation. This is the kind of traffic stop so frequently challenged as illegal by Seltzer Law, P.A., and other defense law firms.

If you’re charged with a drug crime in Florida and you’d like an expert’s advice on your rights and your legal options, call Seltzer Law, P.A., today. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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