Last week, the Florida Supreme Court issued two opinions which are important for different reasons. The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State. The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.
If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing. If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop. (I remember having to do that fairly often when I was a prosecutor in Broward.) Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore. It’s not a difficult or long opinion to read, so I won’t bother to rehash it here. The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.
Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers. In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion. Justice Lewis stated:
The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts. As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22. Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review. See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district. Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected. See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied). This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.” Nader, slip op. at 29 (Lewis, J., dissenting).
Don’t get me wrong. I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest). However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.
Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, the opinion to which Justice Lewis refers, was issued the same day as Bowers, and has important implications for lawyers who handle appeals. In Nader, the Court answered two certified questions:
1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR REFUSING TO TAKE ANY TEST?
2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT’S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?
Nader, SC09-1533, slip op. at pg. 2. The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).
If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases. However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review. As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.
