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When the state relies on the fellow officer rule, the fellow officer has to testify to establish the cause for a stop or probable cause. State v. Bowers, 2012 Fla. LEXIS 429 (February 23, 2012), aff'g Bowers v. State, 23 So. 3d 767 (Fla. App. 2d Dist. 2009), disapproving Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001):

As this Court stressed in Peterson, another "unknowing" officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer "after the fact." Peterson, 739 So. 2d at 568. Here, Officer Tracy learned of the information after he became involved in the investigation, which occurred subsequent to the challenged stop. Thus, Officer Tracy cannot testify as to information that Officer Suskovich told him as a basis for determining the validity of the initial stop.

Our ruling is consistent with our precedent and the purpose of the fellow officer rule. The fellow officer rule has been applied by this Court only to instances where the officer is testifying as to the details of a search or seizure in which the officer was a direct participant. If an officer relies on a chain of evidence to formulate his or her belief as to the existence of probable cause for a search or seizure, the rule excuses the officer from possessing personal knowledge of each link in the chain of evidence if the collective knowledge of all the officers involved supports a finding of probable cause. In short, the rule allows an officer to testify with regard to a previous link in the chain for the purpose of justifying his or her own conduct.

This Court has never applied the fellow officer rule, as the Fourth District did in Ferrer, to allow an officer who had no firsthand knowledge of the reasons for the stop and was not yet involved in the investigation to testify regarding what the initial officer told him in order to establish the validity of the initial stop. To do so would be inconsistent with the rationale and holding articulated in Peterson. Moreover, we reject the State's argument that Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.

Defendant in his § 2255 failed to adequately support his claim that his defense lawyer failed to properly advise him of the quality of his Fourth Amendment claim that was waived in his guilty plea. United States v. Ferguson, 2012 U.S. App. LEXIS 3880, 2012 FED App. 0055P (6th Cir. February 27, 2012):

Ferguson argues that the failure of his trial counsel to advise him about the viability of his Fourth Amendment claim when pleading guilty and to preserve the right to appeal the denial of the suppression motion constitutes obviously deficient performance that is apparent on the record. Ferguson bases this argument on his assertion that his suppression challenge is meritorious and dispositive. In short, he argues that the failure of his trial counsel to appreciate the strength of Ferguson's position on the suppression issue, to preserve it for appeal, and to advise Ferguson of the possibility of entering a conditional plea, constitutes clearly deficient performance resulting in prejudice because in the absence of such alleged errors there is a reasonable probability that Ferguson would not have entered an unconditional guilty plea.

We find the record insufficiently developed to support Ferguson's claim of ineffective assistance of counsel. The record is devoid of information regarding the discussions Ferguson had with his counsel regarding the plea agreement. There is also scant information in the record to illuminate whether it might have been sound strategy for defense counsel to allow Ferguson to enter an unconditional plea. What the record does indicate is that defense counsel and the government negotiated a plea agreement that significantly reduced Ferguson's potential sentencing exposure. The maximum sentence for violating 18 U.S.C. § 2252A(a)(5)(B) is ten years' imprisonment with a possible lifetime term of supervised release. Pursuant to the plea agreement, the Sentencing Guidelines range recommended to the district court based on the stipulated Guideline computations for an adjusted offense level of 17 and criminal history category of I was 24 to 30 months. This range was substantially lower than the recommended Guideline range calculated in the Presentence Investigation Report ("PSR"), which would have exposed Ferguson to a potential sentence of 46 to 57 months. Whether this favorable plea agreement would not have been offered to Ferguson if he had entered a conditional plea is unknown. In light of the limited record on direct appeal, we have "no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse." Massaro, 538 U.S. at 505. Nor can we "ascertain whether the alleged error was prejudicial" without further factual development. Id. Thus, in light of the limited record regarding "the preparation of [Ferguson's] trial counsel or his communications with [Ferguson] about this ... issue," it is more appropriately raised in the first instance in post-conviction proceedings. See United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005).

The Maryland state troopers had probable cause to search defendant’s car, so the district court erred in concluding that the officers exceeded the scope of consent and applied the wrong standard of what is probable cause. United States v. Ortiz, 2012 U.S. App. LEXIS 3896 (4th Cir. February 27, 2012):

This ruling erroneously elevated the probable cause standard to one more demanding than a preponderance. Probable cause requires an officer to have a "reasonable ground for belief of guilt"—"more than bare suspicion." Brinegar, 338 U.S. at 175 (emphasis added). A "reasonable ground" for belief is less demanding than a standard requiring a preponderance of the evidence for the belief. See Gates, 462 U.S. at 235; Humphries, 372 F.3d at 660 ("[T]he probable-cause standard does not require that the officer's belief be more likely true than false"). Thus, when the district court concluded that a search of the vehicle would "more likely than not" have uncovered contraband, it reached a conclusion that satisfied the probable-cause standard and authorized the Maryland State Police to search Ortiz's vehicle.

The trial court held that defendant was unlawfully stopped when he refused to stop for the officer’s flashing lights. There was no stop until defendant stopped, so the case is remanded for further fact finding. State v. Holohan, 2012 WY 23, 2012 Wyo. LEXIS 24 (February 22, 2012).

The state showed probable cause for the search warrant for defendant’s car and house in a shooting case. [Not a great amount of evidence, but enough for probable cause: matching car color, matching gun.] Robinson v. State, 2012 Tex. App. LEXIS 1483 (Tex. App. – Austin February 24, 2012)*:

In particular, with regard to Robinson's home and SUV, the affidavits state the following: (1) "a neighbor saw a black SUV drive away very fast" after the shooting; (2) Robinson's girlfriend "owns a small, black, SUV"; (3) an officer previously noted that Robinson kept a .38 caliber revolver in his home; (4) the bullets that were recovered from the crime scene were consistent with that of a .38 or .357 caliber revolver; and (5) the affiant's experience in criminal investigations leads him to "believe that items capable of collecting saturated blood [and other evidence], including but not limited to clothing, vehicle upholstery, carpet, [and] floor mats are located" in Robinson's home and SUV.

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Marquette Law School Faculty Blog: The Resurrection of the “Trespass” Element of Fourth Amendment Law by David Behm:

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure. See generally 132 S.Ct. 945 (2012). In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Server Woes

Due to the web server crashing and burning, and then repeating the crash and burn, this site has been down for most of the last week. I’m working on getting things restored from backup. Your patience is appreciated. Everything should be smoothed out within a week.

This also means that our email has been missing in action. So if you tried to write during the last week and didn’t get a response, resend now and it should get through.

Meanwhile, back on the ranch, we’ve had an even dozen litters of new piglets and there are about 15 to 20 more sows who will farrow soon. Piglets are popping out all over the place. The sap is rising. The sun is warming the land. Maybe in a month we will be mostly free of snow.

Tomorrow is Leap Day so get something extra done!

Cheers,

-Walter

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While Santorum is taking heat for encouraging Democrats in Michigan to vote for him in Tuesday's primary, he is using a playbook that the GOP should adopt in the general election.

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