An officer may make an arrest outside of his jurisdiction as a private citizen for a
felony or a breach of peace occurring in his presence or for a felony based on probable
cause. Wilson v. State, 403 So. 2d 982 (Fla. 1st DCA 1980); State
v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); Collins v. State, 143
So. 2d 700 (Fla. 2d DCA), cert. denied, 148 So. 2d 280 (Fla. 1962); Edwards
v. State, 462 So. 2d 581 (Fla. 4th DCA 1985), rev. denied, 475 So.2d 694
(Fla. 1985); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1983), affirmed,
455 So..2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 5th DCA
1982).
There are limitations on the application of this principle.
An officer cannot make an arrest under color of office outside of his or her
jurisdiction, but that principle has been interpreted to mean that he or she cannot use
his or her authority to observe criminal activity or to secure evidence that he or she
could not have otherwise obtained. State v. Phoenix., 455 So. 2d 1024
(Fla. 1984); State v. Moonie, 505 So. 2d 575 (Fla. 4th DCA 1987). The
fact that he or she is in a police cruiser, in uniform and identifies himself or herself
as an officer has been construed by the Court to not constitute "color of
office". Phoenix v. State, 455 So. 2d 1024 (Fla. 1984).
Pursuant to Phoenix v. State, 455 So. 2d 1024 (Fla. 1984), the Court held that in
order for an officer to make a valid citizen's arrest there must be two elements present:
(1) probable cause to believe the defendant committed a felony; and, (2) the belief on the
part of the officer that the defendant is in fact guilty of a felony. The dissent in
this case includes an excellent discussion of citizen’s arrest. State v.
Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla.
1991).
An officer making a stop outside of his jurisdiction was not operating under color of
office where he was wearing his city police uniform, operating a police cruiser, and
used his blue lights to detain the individual. State v. Furr, 723 So. 2d
842 (Fla. 1st DCA 1998).
There is no such thing as a "citizen's investigative stop." State v.
Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991).
An officer cannot make a Terry stop as a private citizen. State v.
Schuyler, 390 So. 2d 458 (Fla. 3d DCA 1980).
An officer cannot make a stop to issue a citation for a civil infraction as a
private citizen. Schachter v. State, 338 So. 2d 269 (Fla. 3d DCA 1976).
. The following cases illustrate the application of these principles.
An officer, while outside of his jurisdiction, saw the defendant's vehicle (l) cross
the center line three to seven times, (2) force approaching vehicles onto the berm, but
not completely off the roadway, and (3) almost hit a bridge abutment before coming to a
halt. The officer managed to stop the defendant, identified himself as an officer and
detained the defendant. The court held that this was a valid citizen's arrest because such
behavior constituted "a breach of the individual and collective peace of the
people." Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA), rev.
denied, 475 So.2d 694 (Fla. 1985).
Where an officer observes erratic driving resulting in an accident he or she may
make an arrest as a private citizen. State v. Englehardt, 465 So. 2d 1366
(Fla. 4th DCA 1985).
An officer received a report about a truck being all over the road. He located the
truck and saw it cross the center line several times. This took place outside the officers
jurisdiction. The court held that the officer made a lawful citizen’s arrest for
breach of the peace. The court rejected any requirement that vehicles be forced off the
road as in Edwards and ruled that "‘operating a motor vehicle while
intoxicated is an activity which threatens the public security and involves violence. As
such, it amounts to a breach of the peace.’" State v. Furr,
723 So. 2d 842 (Fla. 1st DCA 1998).
The officer did not make a valid citizen's arrest outside of his jurisdiction even
though he may have had probable cause to arrest for burglary because he did not believe
the defendant had committed a felony at the time of the stop and did not intend to arrest
him at the time of the stop. He was merely making a stop for investigatory purposes. State
v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla.
1991).
An officer can make a citizen's arrest on a reckless driving because it
constitutes a breach of the peace. State v. Ramos, 38 Fla. Supp.2d 171 (Dade
Cty. Ct. 1989).
IF THERE WAS NO WARRANT AND THE STATE FAILED TO PROVE UP AN EXCEPTION TO THE
WARRANT REQUIREMENT, IS THE EVIDENCE, NEVERTHELESS, ADMISSIBLE BECAUSE OF THE APPLICATION
OF SOME EXCEPTION TO THE EXCLUSIONARY RULE?
For an excellent detailed opinion on exceptions see State v. Griffith,
500 So. 2d 240 (Fla. 3d DCA 1986).
Does the good
faith exception apply? [Back]
Test: Would "a reasonably well trained officer" have known that the
search was illegal? If not the exclusionary rule does not apply. United States
v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
For state applications see Renckley v. State, 538 So. 2d 1340 (Fla. 1st
DCA 1989); Thompson v. State, 548 So. 2d 806 (Fla. 1st DCA 1989); State
v. Van Pieterson, 550 So. 2d 1162 (Fla. 1st DCA 1989); Brown v. State,
561 So. 2d 1248 (Fla. 2d DCA 1990); Albo v. State, 477 So. 2d 1071 (Fla. 3d
DCA 1985); Getreu v. State, 578 So. 2d 412 (Fla. 2d DCA 1991); Bonilla
v. State, 579 So. 2d 802 (Fla. 5th DCA 1991); State v. Cruz, 582 So.
2d 20 (Fla. 5th DCA 1991).
Deficiency
in affidavit for search warrant. [Back]
() This exception "does not permit an officer to rely upon a warrant based on an
affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable." Garcia v. State, 554 So. 2d 1223
(Fla. 2d DCA 1990).
() "An officer would not 'manifest objective good faith in relying on a warrant
based on an affidavit so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.'" Roper v. State, 588 So. 2d
330 (Fla. 5th DCA 1991).
() The good faith exception to the exclusionary rule applied where the detective, who
swore to the affidavit and executed the search warrant, acted in objective good faith,
conducted an independent investigation, submitted all information to the judge for a
probable cause determination and obtained a facially valid warrant. State v. Irvine,
558 So. 2d 112 (Fla. 4th DCA 1990).
() Where an affidavit relying on information provided by a C.I. was found to be
defective for failure to provide sufficient information as to the veracity and basis of
knowledge of the C.I. and to establish probable cause, the search could not be upheld
based on the good faith exception because: (l) the officers executing the affidavit had no
personal knowledge of the reliability of the individuals involved in the drug transaction;
(2) while the affidavit alleged that the C.I. had provided reliable information to the
police department, there was no indication as to whom or how long ago it was provided; (3)
there were no statements from which one could believe that drugs would be found in the
defendant's house. Brown v. State, 561 So. 2d 1248 (Fla. 2d DCA 1990).
() The court held that this exception did not apply because an executing officer
cannot rely on a search warrant in good faith when his informant was not shown in any way
to be reliable. Delacruz v. State, 603 So. 2d 707 (Fla. 2d DCA 1992).
() An affidavit alleged that the informant had assisted the sheriff's department on
investigations and had proven to be reliable and the informant was a past user of cocaine
and could recognize it. A warrant was issued. On appeal the court found that the
affidavit was insufficient because the affidavit did not allege that the affiant had
personal knowledge of the reliability of the informant nor was there any corroboration of
reliability from an independent source. The mere allegation that the informant had
previously provided reliable information was not sufficient. The good faith exception was
found to be inapplicable. Fellows v. State, 612 So. 2d 686 (Fla. 2d DCA
1993).
() The affidavit for search warrant was defective because it referred to drugs being in
the house at a day in the future rather than the present. The trial judge held that the
reliance of the officers on the warrant was objectively reasonable and upheld the search
based on the good faith doctrine. On appeal the court found there was sufficient support
in the record for the finding. These factors were considered to be significant: (1) the
reliability of the informant was demonstrated; (2) there was a controlled buy as well as
prior drug dealings between the informant and the occupant of the building; (3) the
officers had the informant in sight constantly except while he was inside the building;
(4) there was a solid connection between the drugs and the premises; (5) there were no
false statements in the affidavit. "[T]he 'anticipatory' nature of the affidavit
could easily have been eliminated by putting the officer's belief in the present tense
given Sullivan's assurance to the informant, one of Sullivan's prior cocaine customers,
that his stock, temporarily depleted, would be 'reupped' on June 18, and given the fact
that the officer did not execute the affidavit until well into the afternoon of June 18.
Furthermore, the officer took the proposed affidavit to an assistant state attorney for
approval as to form before executing it before the magistrate. Finally, the officer
proposed in his affidavit that if a warrant were issued he would not execute it unless and
until he had successfully conducted a controlled purchase through the informant and the
informant assured him that there was additional cocaine in the premises to be searched,
conditions which the officer scrupulously observed before executing the warrant."
The warrant did not suffer from the defects present in the affidavits in Renckley v.
State, 538 So. 2d 1340 (Fla. 1st DCA 1989) and Brown v. State, 561 So. 2d 1248
(Fla. 2d DCA 1990). There the courts found that reliance was not objectively reasonable. Pazos
v. State, 654 So. 2d 1000 (Fla. 4th DCA 1995).
() In this case the affidavit for search warrant relied on information provided by a
confidential informant. It alleged that the informant had provided information to law
enforcement on at least 20 occasions regarding illegal criminal activities that had proven
to be accurate and true. It also said that the informant was responsible for the arrest of
four individuals and the seizure of $400.00 in illegal controlled substances. It was
insufficient. The court also considered the question whether the good faith exception to
the exclusionary rule applied here. The affiant testified at the hearing on a motion to
suppress that the informant had personally provided reliable information to him about
illegal drug activity on at least ten occasions and that he had been told by other members
of the Sheriff's Department that this informant had provided them with such information on
ten other occasions. The court ruled that the good faith exception did not apply and
certified this question to the Supreme Court: "Whether an affiant officer's
assertions in a search warrant affidavit to the effect that a confidential informant has
provided accurate and true information to law enforcement on at least twenty occasions in
the past regarding illegal criminal activities leading to successful arrests and criminal
property seizures, together with suppression hearing testimony from that officer to the
effect that he had personal knowledge of the reliability of the confidential informant
when he both swore out the search warrant affidavit and when he helped execute the search
warrant, can support a finding that an officer in the affiant/executing officer's position
could have relied in good faith on the resulting search warrant and that such reliance
would have been objectively reasonable for purposes of establishing the good faith
exception to the exclusionary rule announced in United States v. Leon, 468 U.S.
897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)." Peterson v. State, 706
So. 2d 936 (Fla. 1st DCA 1998).
() The good faith exception to the exclusionary does not apply where the affidavit
contains false or misleading information. Thorp v. State, 777 So. 2d 385
(Fla. 2000).
Deficiency in search
warrant. [Back]
() Where the defendant is arrested on a void or nonexistent warrant the " 'good
faith exception' " to the exclusionary rule does not apply. State v. Gifford,
558 So. 2d 444 (Fla. 4th DCA 1990).
() For an example of a case finding the good faith exception applicable to a search
warrant see State v. Diamond, 598 So. 2d 175 (Fla. 1st DCA 1992).
() In a murder case an affidavit for search warrant was filed stating only that an
eyewitness to the crime identified the defendant as the perpetrator and described his
clothes and that the defendant's girlfriend pointed out the defendant's clothing to the
affiant and the clothing matched the eyewitness's description. When the warrant was issued
it authorized the police to search for "'the clothing Joseph Nahume Green, Jr. was
wearing the evening of the 8th day of December, 1992, the weapon used in the murder of
Judith Miscalley and other evidence related to the fatal shooting.'" The Court found
that this was too broad and that the good-faith exception did not apply because "the
facial invalidity of the warrant precludes the application of the exception.... This is so
because the executing officers, relying on a warrant which fails to particularly describe
the items to be seized, cannot reasonably presume the warrant to be valid." Green
v. State, 688 So. 2d 301, 305 (Fla. 1997).
() This exception applies where: (a) evidence is secured as a result of an invalid
warrant, Leon; (b) evidence is secured as a result of an arrest on a statute
subsequently declared invalid, Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94
L. Ed.2d 364 (1987).
() "The State makes two other arguments in support of the admissibility of the
evidence seized from Ingraham’s apartment, but those arguments fail under the
circumstances of this case. First, the good faith exception established in United
States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was
specifically held by the Supreme Court not to apply where ‘a warrant may be so
facially deficient--i.e., in failing to particularize the place to be searched or the
things to be seized--that the executing officers cannot reasonably presume it to be
valid.’ (Emphasis supplied)." Ingraham v. State, 811 So. 2d
770 (Fla. 2d DCA 2002).
. Execution of warrant.
[Back]
() Officers had a search warrant for specific porngraphic films. In executing the
warrant they brought video equipment and viewed many films. They seized all copies of the
films in the warrant, many films they viewed and decided were obscene, and a variety of
office equipment. On appeal the court held that the warrant was improperly executed and
all the seized evidence should have been suppressed. "'When law enforcement
officers grossly exceed the scope of a search warrant in seizing property, the
particularity requirement is undermined and a valid warrant is transformed into a general
warrant thereby requiring suppression of all evidence seized under the warrant.'"
This principle applies especially to material presumptively protected by the First
Amendment. The good faith exception applies only where the officers have acted in "an
objectively reasonable fashion." No interpretation of the facts in this case
would permit such a conclusion. State v. Johnson, 605 So. 2d 545 (Fla. 2d
DCA 1992).
Wiretaps [Back]
() Because of a statutory provision the good faith exception established in Leon
does not apply to evidence obtained by wiretaps. Sutton v. State, 556 So. 2d
1211 (Fla. 2d DCA 1990).
Invalid ordinance or
statute. [Back]
() The city passed an ordinance making it a criminal violation to possess an open
container of alcohol in a vehicle. Under state law that is only a civil infraction. While
making an arrest for a violation of the city law a deputy discovered drugs. The trial
judge found that the local ordinance was invalid to the extent that it created a criminal
offense; therefore, the arrest was unlawful. On appeal the court agreed but held that the
seizure was, nevertheless, valid because at the time the city law was presumptively valid
and was not flagrantly invalid; therefore, the deputy acted properly. State v.
Smith, 584 So. 2d 145 (Fla. 2d DCA 1991).
() The Court held that an ordinance was invalid, but found that evidence secured as a
result of a search incident to that ordinance should not have been suppressed. "The
arrest was made in reliance on the city ordinance and thus falls within the rule
established in Michigan v. DeFillippo, 443 U.S. 31 (1979). The Court in DeFillippo
stated that evidence obtained after a search incident to an arrest in reliance on a
municipal ordinance should not be suppressed even when the ordinance is subsequently
declared unconstitutional." Thomas v. State, 614 So. 2d 468 (Fla.
1993). See also State v. Calloway, 589 So. 2d 326 (Fla. 5th DCA
1991).
() This exception applies where: (a) evidence is secured as a result of an invalid
warrant, Leon; (b) evidence is secured as a result of an arrest on a statute
subsequently declared invalid, Illinois v. Krull, 480 U.S. 340, 107 S.Ct.
1160, 94 L.Ed.2d 364 (1987).
Fellow officer rule.
[Back]
() The "good faith" exception established in United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), "refers to the knowledge and
information possessed by the law enforcement community as a whole, rather than the
arresting officer alone." Where evidence is seized incidental to an arrest for
driving on a suspended license and the license was reinstated long before the arrest, but
the computer had not been corrected, the arrest is unlawful even though the arresting
officer had no knowledge of the computer error. Albo v. State, 477 So. 2d
1071 (Fla. 3d DCA 1985).
() Incorrect information was communicated to the arresting officer indicating that the
defendant's license was suspended. This resulted either from miscommunication or
misinterpretation. "Based on the 'collective knowledge' or 'fellow officer' rule,
an otherwise illegal arrest cannot be insulated from challenge by the fact that the
arresting officer relied on erroneous radio information from a fellow officer."
This is not a mistaken identity case. The initial stop for equipment violation was proper,
but the arrest for driving on a suspended license was unlawful. Walker v. State,
606 So. 2d 1220 (Fla. 2d DCA 1992).
() An officer stopped the defendant for speeding. He was erroneously told over the
radio that the defendant had a suspended license and then subsequently that it was
expired, canceled, or revoked. The officer arrested the defendant, did a pat-down search,
and discovered marijuana. It turned out that the defendant's license had been expired
for less than four months, which is an infraction for which no arrest is authorized. Thus,
pursuant to State v. White, 660 So. 2d 664 (Fla. 1995), the search was unlawful. White
holds "that an arrest based on erroneous computer information supplied by law
enforcement personnel required suppression of the evidence seized incident to the
arrest." Bruno v. State, 704 So. 2d 134 (Fla. 1st DCA 1997).
() Under the "fellow officer rule" a/k/a the "collective knowledge
doctrine" an arresting officer may assume probable cause to arrest based upon
information supplied by other officers. The arresting officer may make a valid arrest
despite his/her lack of personal knowledge if the police, as a whole, have sufficient
information to establish probable cause. The same is true of reasonable suspicion. The
arrest or stop is valid if the arresting or stopping officer acts upon the direction or as
a result of a communication from a fellow officer or another police department who had
probable cause or reasonable suspicion. Voorhees v. State, 699 So. 2d 602
(Fla. 1997).
() A police officer relied on a police computer record, which showed an active arrest
warrant for the defendant. The officer arrested the defendant and did a search incidental
to the arrest, which produced evidence. There was no evidence that the officer did not
act objectively reasonably. The warrant had in fact been quashed 17 days before the
arrest. The computer showed that the warrant was still active because a court clerk had
failed to notify the Sheriff Department that the warrant had been quashed. The court held
that the good faith exception applied because to hold officers responsible for the
knowledge and errors of court employees would not deter unlawful searches by law
enforcement. Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d
34 (1995).
() Officers arrested the defendant based on an outstanding warrant for civil contempt
for failure to pay child support that was reflected in the computer. The arrest resulted
in a search, which disclosed evidence. The warrant had been executed four days earlier, but
through police negligence the computer was not corrected. A police officer is charged
with knowledge of an unlawful search under the "fellow officer" or
"collective knowledge rule." This sort of police negligence is just the kind
of conduct that the exclusionary rule was designed to prevent. "The good faith
exception is inapplicable in this instance since it was within the collective knowledge of
the sheriff's office that the warrant was void. In essence, the arresting officers are
charged with knowledge that they had no authority to arrest the defendant." State
v. White, 660 So. 2d 664 (Fla. 1995).
() "Here the defendant was arrested by an officer who may have 'jumped the gun' in
terms of technical protocol, but we see little remedial good that would come from applying
the exclusionary rule in this context.... There could be no more substantial showing of
good faith than the existence of a valid warrant prior to arrest, even though the
arresting officer knew nothing of it. Leon. Accordingly, we hold that knowledge
of the existence of a valid warrant is imputed to all officers in departments working on
the case from the moment the warrant is signed, without regard to actual knowledge, at
least where the arrest is prompted by the crime identified by the warrant or its
accompanying papers. A delay in communication should not let a suspect go free when
the State already has fully complied with the warrant clause, because there could be no
remedial value in such a draconian penalty." Johnson v. State, 660 So.
2d 648 (Fla. 1995).
() Officer Whitehead saw the car swerving and being operated erratically within the
city limits. Officer Whitehead sent out a radio transmission. Officer Hardwick responded.
Whitehead followed the defendant to the foot of a bridge. The car stopped. Whitehead then
followed the car over the bridge and saw it cross the center line four times on the
bridge. Whitehead also saw the vehicle almost hit several vehicles in the turn lane of an
intersection. Hardwick did not see any of the erratic driving. Hardwick relied on
Whitehead’s observations, which he was told about. Whitehead and Hardwick stopped the
car outside of the city limits. Hardwick arrested the defendant because he looked drunk
and failed field sobriety tests. The defendant refused to take a chemical test. The
defendant’s license was suspended. The hearing officer upheld the suspension. The
circuit court reversed on the grounds that the officer did not have probable cause for the
stop, Hardwick was not in "fresh pursuit," and the fellow officer rule only
applies to felonies. On appeal the court reversed. The stop was proper based on fresh
pursuit or the felony officer rule. The manner in which the defendant was operating his
vehicle was sufficient to justify the stop. "Section 901.18 authorizes an officer to
elicit assistance from another officer; and the second officer has the authority to arrest
based on the observations and report of the first officer. State v. Eldridge, 565
So.2d 787 (Fla. 2d DCA 1990); Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); Mahoy.
The combined observations of two or more officers may be united to establish probable
cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well
as felony offenses. Eldridge, Mahoy; Steiner. Further, an arrest made outside an
officer’s jurisdiction is authorized by §901.25 where, as here, the officer is in
fresh pursuit. Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982); Edwards v.
State, 462 So.2d 581 (Fla. 4th DCA 1985). Fresh pursuit included misdemeanor offenses.
Edwards. Where there are signs of the offense continuing, the officer has authority
to arrest a defendant outside of her jurisdiction for committing the offense within the
jurisdiction. Edwards. In this case the erratic driving justified the stop and
the defendant’s appearance and conduct after the stop justified the DUI arrest. Dept
of Highway Safety and Motor Vehicles v. Leonard , 718 So. 2d 314 (Fla. 5th DCA
1998). See also Dept. of Highway Safety and Motor Vehicles v. Porter, 791
So. 2d 32 (Fla. 2d DCA 2001).
() One officer (Officer A) had knowledge that the defendant was involved in a pending
deportation proceeding, was always armed, and had been previously apprehended by INS. That
officer asked another officer (Officer B) to stop the vehicle in which the defendant was a
passenger. After stopping the car, Officer B patted the defendant down. Officer A was
standing next to Officer B during the pat down. Officer B discovered a gun. Officer B said
that he patted the defendant down for officer safety, but that he had no idea who the
defendant was or whether or not he was armed. "Not knowing these things he had to
assume the worst, so he patted [the defendant] down." The trial judge denied a
motion to suppress. On appeal the court affirmed. An INS agent had the right to question
aliens about their immigration status. "In order to justify a seizure, however,
the agent must articulate objective facts providing a reasonable suspicion that the
subject of the seizure was an alien illegally in this country." Here the INS
agent (Officer A) had sufficient facts to establish reasonable suspicion. He testified
that he knew that "Smith was previously apprehended by INS, was involved in a
pending deportation proceeding, and was known to be always armed." While Officer
B had none of this information, he had the authority to detain the defendant pursuant
to the "fellow officer" rule. Which allows an officer to presume that his or
her fellow officers who tell him to make a stop have probable cause or reasonable
suspicion. "It is enough that the police officer initiating the chain of
communication either had first-hand knowledge or received information from some person,
usually the victim, official source, or eye witness, who it seems reasonable to believe is
telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The
"fellow officer" rule is applicable whether the communication is from a
superior, a fellow officer with the same police department, between different agencies or
agencies at different levels within a state, between officials in different states, and
between federal and state or local authorities." Smith v. State, 719 So.
2d 1018 (Fla. 3d DCA 1998).
() "Because the department of Highway Safety is an executive branch agency and
is an integral part of law enforcement in the State of Florida, and because operation of
the exclusionary rule in this case should have a significant effect upon the
Department’s record-keeping efforts, we find that the error made here is a ‘law
enforcement’ error under White. Thus, the good faith exception would not apply
and the exclusionary rule would apply." Shadler v. State, 761 So.
2d 279 (Fla. 2000). The Legislature has mandated reversal of Shadler. A recent
enactment creates § 90.959. It provides that:
() The Division of Driver Licenses and Motor Vehicles of the Department of Highway
Safety and Motor Vehicles are not law enforcement agencies.
() They are no adjuncts of any law enforcement agencies in that employees have no stake
in particular prosecutions.
() Errors in records maintained by the divisions are not within the collective
knowledge of any law enforcement agency.
() The mission of these agencies provide a sufficient incentive to maintain records in
a current and correct fashion.
() The application of the exclusionary rule to cases where a law enforcement officer
effects an arrest based on objectively reasonable reliance on information provided by the
divisions is repugnant to the purposes of the exclusionary rule and Arizona v. Evans,
514 U.S. 1 (1995) and United States v. Leon, 468 U.S. 897 (1984).
() When an officer effects an arrest based on an objectively reasonable reliance on
erroneous information obtained from the aforementioned divisions, evidence found pursuant
to that arrest shall not be suppressed. Ch. 2002-215, Laws of Florida.
() The defendant’s vehicle was stopped for the issuance of a traffic citation.
That led to the discovery of drugs due to a long detention and the use of a canine unit.
The officer’s detained the defendant for a time longer than necessary to write the
citation because of misinformation that DMV provided concerning the defendant’s
license. During that period was when the drugs were discovered. The trial judge denied
a motion to suppress. The court said: "If a driver is stopped for the commission
of a traffic infraction, he or she may be subjected to a canine search of the exterior of
the vehicle so long as it is done within the time required to issue a citation. Maxwell
v. State, 785 So.2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564
So.2d 480 (Fla.1990)); Welch v. State, 741 So.2d 1268 (Fla. 5th DCA 1999). If a
properly trained police dog alerts to the presence of illegal drugs during this time
period, the officer will have probable cause for a search. Maxwell.... This court
has held that the time to issue a citation should last no longer than is necessary to
write the citation and, when necessary, to make the license, tag, insurance and
registration checks as long as that information can be obtained within a reasonable period
of time.... However, if the DMV provides erroneous information to an officer and the
officer stops and detains a driver based on that erroneous information, the exclusionary
rule will bar admission of evidence seized as a result of the search incident to that
arrest. Shadler v. State, 761 So.2d 279 (Fla.), cert. denied, 531 U.S.
924 (2000)....Taking the evidence and all reasonable inferences therefrom in the light
most favorable to upholding the trial court's ruling, it is clear that Eldridge was seized
and placed in the back of the patrol car based on erroneous information supplied to the
officer by the DMV concerning the status of Eldridge’s license. The only authority
the officer had was to issue a traffic citation for road blocking, which would not justify
the prolonged detention that occurred before Eldridge’s actual arrest. We find that
the continued detention of Eldridge while the officer was dealing with the DMV’s
erroneous information allowed Eldridge to be subjected to a search where one otherwise
would not have occurred. Had the officer written the citation without the delay caused by
the DMV’s erroneous information, Eldridge would have been on his way long before the
canine unit ever arrived. Thus, under these facts, ‘the government had no right,
because of a mistake by the Department of Highway Safety, to seize and search one of its
citizens.’ Shandler, 761 So.2d at 286. Therefore, we conclude that because
Eldridge was ‘wrongfully subjected to an arrest or search predicated upon a
mistake’ made by the DMV, an arm of law enforcement, the marijuana found during the
search must be excluded pursuant to Shandler." Eldridge v. State,
27 Fla. L. Weekly D1009, 2002 WL 851100, (Fla. 5th DCA May
03, 2002). [See discussion of new statute above.]
() An officer stopped the defendant because a check of the internal
database of the sheriff’s office showed that the defendant’s vehicle had an
improper tag. The database did not have the correct up-to-date information and the tag
was not improper. As a result of the stop evidence was discovered. The trial judge granted
a motion to suppress. "The exclusionary rule applies to evidence that is obtained
following an illegal arrest when the arrest is initiated as a result of a police computer
error. See State v. White, 660 So.2d 664, 667-68 (Fla.1995). The supreme court
reasoned that the suppression of such evidence would encourage law enforcement to maintain
accurate and current records. Id. at 667; see also Shadler v. State, 761
So.2d 279, 285 (Fla.2000).... Under the circumstances, the erroneous information
obtained by the deputy could not provide reasonable suspicion for the stop of Murphy and
the seizure of the evidence. Had the sheriff's office records been updated and accurate,
the stop and seizure of Murphy, the observations made by the deputy, and the subsequent
search would not have occurred." State v. Murphy, 793 So. 2d 112 (Fla.
2d DCA 2001).
() It was lawful for one officer to stop the defendant based on another
officer’s knowledge that the defendant was driving a vehicle with an expired tag.
Under the fellow officer rule, the officer that made the stop did not have to have first
hand knowledge that the tag was expired. Ferrer v. State, 785 So.2d 709
(Fla. 4th DCA 2001).
Miscellaneous
applications. [Back]
() The court ruled that the tenant had not been properly evicted from the involved
premises nor had he abandoned them; therefore, the manager did not have the authority to
let the police onto the premises. The court said: "[B]ecause the purported
eviction was invalid under Florida law, under these particular facts the police cannot
rely on the good-faith exception to the exclusionary rule, created by United States v.
Leon, 468 U.S. 897 (1984) and Illinois v. Krull, 480 U.S. 340 (1987)," The
Leon exception "is inapplicable where, as here, an officer claims only that he
made a reasonable but mistaken interpretation of the scope of his search authority under a
particular valid statute." In this case at the very best the officer was faced
with an ambiguity which should have stopped him from entering the room without further
inquiry. The officer was apparently also operating under a mistake of law - that the
defendant could be evicted with oral notice. There was nothing in the record that
indicates that the officer's reliance on his view of the facts and the law was objectively
reasonable. Morse v. State, 604 So. 2d 496 (Fla. 1st DCA 1992).
() "Any errors here clearly were technical and were committed solely by the
magistrate, not by the officers. We hold that the officers acted in good faith and
fall within the good faith exception of Leon." Here the error related to the
sufficiency of the jurat in the affidavit. Johnson v. State, 660 So. 2d 648
(Fla. 1995).
() Officers received a tip that stolen property was located on the involved premises
and they believed that there was probable cause to search the involved backyard. "That
[the officer] had a good faith belief there was stolen property on the premises is not
dispositive. In order to legally search the property without a warrant [the officers]
needed more than probable cause, they also must have been faced with exigent circumstances
necessitating immediate action on their part." There were none in this case;
therefore, the officers were required to secure a search warrant for the backyard. Potts
v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995)
() Both the defendant and the officers believed that the defendant was on probation and
that he was in violation of probation. For that reason he was arrested. He was in fact not
on probation. There was "no reason ... to apply the exclusionary rule. [The
defendant], himself, thought he was in violation of probation and was the first person to
raise the subject. The police acted in good faith on the information given by [the
defendant], with an objectively reasonable belief that arresting [the defendant] for
violation of probation would be proper. It cannot be said that the police engaged in bad
acts, or negligently deprived [the defendant] of any constitutional rights. Therefore, we
hold that, even if [the defendant] were illegally arrested for violation of probation, the
trial court did not err in refusing to suppress the statements made after that
arrest." Savage v State, 588 So. 2d 975 (Fla. 1991).
() An officer ordered the defendant to exit the vehicle based on the mistaken belief
that she had probable cause to arrest him on an open container violation. "Although
the law enforcement officers may have mistakenly believed they had probable cause to
arrest Hilgeman for the alleged open container violation, ‘law enforcement
officers are charged with knowledge of the law.’ Doctor v. State, 596 So.2d
442, 447 (Fla.1992). Reasonable suspicion to seize or probable cause to arrest Hilgeman
did not arise based on the officers' misapprehension of the law." Hilgeman
v. State, 790 So. 2d 485 (Fla. 5th DCA 2001).
Does
the inevitable discovery doctrine apply? [Back]
Test: "If the prosecution can establish by a preponderance of the evidence that
the information ultimately or inevitably would have been discovered . . . Then the
evidence should be received." "[T]o apply this doctrine there does not have
to be an absolute certainty of discovery, but rather just a reasonable probability."
Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
"Under this exception, evidence obtained as the result of unconstitutional
police procedure may still be admissible provided the evidence would ultimately have been
discovered by legal means." In this case whether or not the defendant's arrest
was lawful the truck in which the involved evidence was contained was determined to be
stolen before his arrest and any statements. Thus, the items would have been inevitably
discovered. Maulden v. State, 617 So. 2d 298 (Fla. 1993).
For state applications see: Jennings v. State, 512 So. 2d 169 (Fla.
1987); Craig v. State, 510 So. 2d 857(Fla. 1987); State v. Robinson,
565 So. 2d 730 (Fla. 2d DCA 1990); State v. Ruiz, 502 So. 2d 87 (Fla. 4th
DCA 1987); State v. Walton, 565 So. 2d 381 (Fla. 5th DCA 1990); Parker
v. State, 611 So. 2d 1224 (Fla. 1992).
The inevitable discovery rule set forth in Nix v. Williams, 467 U.S. 431, 104
S.Ct. 2501, 81 L.Ed.2d 337 (1984), does not apply to a violation of Florida's knock and
announce law set forth in §933.09. State v. Robinson, 565 So. 2d 730
(Fla. 2d DCA 1990).
"The fruit of the poisonous tree doctrine is inapplicable ... when evidence inevitably
would have been discovered." Parker v. State, 611 So. 2d 1224 (Fla.
1992).
The defendant's vehicle was stopped for speeding. A gun bag was observed next to the
driver's seat. The officers asked the defendant to exit the car. An officer saw
marijuana in plain view when the defendant was asked to exit. One officer asked the
defendant to produce his license, registration and proof of insurance. The other
officer retrieved the gun bag and found that it contained a firearm and ammo. One
officer spoke with the defendant, while the other officer returned to the car and looked
through the driver's side to make sure that there were no other weapons. When the other
officer began talking to the defendant, he saw that the defendant was wearing a hip bag.
It was bulging and appeared to be very heavy. Under the circumstances the officer thought
that the defendant might have another weapon in this bag, which was close to the
defendant's hand. The officer then asked the defendant if he had any weapons in the
bag. The defendant inquired whether the officers were just looking for weapons. The
officer responded: "Why, do you got drugs in there?" The defendant said yes and
opened the bag to reveal the marijuana. The officer then seized the bag. Other items
were seized in this process. The defendant argued that the officers could not lawfully
order him out of the car and search for weapons because they did not have probable cause
to believe that he was illegally carrying a concealed weapon. Further, since the gun bag
was in plain view the officers had no reason to believe that they were in danger. On
appeal the court said: "Whether a firearm is possessed legally or illegally, it is
still a firearm, the presence of which poses a threat to the safety of any person who
could be injured or killed if it were used." The court found that the inevitable
discovery doctrine applied as to much of the evidence because: (1) it was lawful for the
officers to order the defendant to exit the vehicle once it was lawfully stopped; (2)
marijuana was seen in plain view as the defendant exited; (3) the appearance and location
of the defendant's hip bag supported the officer's inquiry as to whether there were
weapons in the bag; (4) the inquiry was not a search; (5) the defendant voluntarily opened
the bag revealing the marijuana sitting on top of the other things in the bag; (6) "[t]he
discovery of these items of contraband would have subjected the defendant to arrest,
subsequent to which his entire vehicle and person could have been searched." State
v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995).
Two store clerks told an officer that the defendant had stolen cigarettes. The
defendant was driving out of the parking lot. The officer stopped him. The defendant could
not produce a license. When the defendant stepped out of the car the officer saw a brown
paper bag on the seat with part of a plastic baggie protruding. The officer seized the bag
and found that the plastic baggie contained cocaine. No cigarettes were found in the car. After
they arrived at the station the officer learned that the defendant's license was suspended
and he was charged with that. The defense moved to suppress the cocaine. The trial
judge found that: (1) the officer did not have grounds to search the vehicle incidental to
arrest because he had no probable cause to arrest the defendant for shoplifting; (2) the
officer did not have probable cause to search for drugs based on his observation of the
plastic baggie protruding from the brown bag. However, the court concluded that the state
had established by a preponderance of the evidence that the cocaine would have
ultimately been discovered because an investigation of the defendant's driving status
would have led to his arrest for driving on a suspended license and a search incidental to
that arrest. On appeal the court reversed. "The officer testified that he
discovered [the defendant] had a suspended license after the arrest for possession, when
they were at the police station. While at the scene, the officer did not investigate [the
defendant's] lack of a driver's license. [I]t is speculation what the officer would have
done had he not searched the car and observed the cocaine. Certainly it was possible
that the officer would have investigated the lack of a license at the scene, but it was
not inevitable." (emphasis by the court). Ruffin v. State,
651 So. 2d 206 (Fla. 2d DCA 1995).
In the early morning hours an officer passed through the parking lot of a motel. There
had been earlier robberies and burglaries at the motel, but none that evening. The officer
became suspicious when he saw two people in a legally-parked car, with brake lights on and
headlights off. The car had a local tag. It did not appear to be a rental vehicle and was
an older model. For these reasons the officers suspected that it did not belong to someone
who had rented a room at the motel. The officer watched the car. He saw a head moving up
and down in the car. The occupants were fidgeting back and forth, looking down and back
up, and down again. He could not tell whether the behavior was consistent with legal or
illegal activity. He had seen tourist behave in a similar way. The officer walked
within eight feet of the vehicle. He was behind a parked car and could see inside the
vehicle. He shined his light inside the car and announced that he was a police officer.
The occupants were startled and moved quickly. They appeared to lean forward and put
something on the floorboard. The officer had the impression that they were trying to tuck
something away, but he couldn't see what it was. The officer ordered the occupants out
of the car. One of them dropped a straw on the ground. The officer secured the straw
and saw a white powder on it. He shined the light into the car and saw a razor blade and
mirror on the floorboard with white powder on it. The trial judge found that the officer
had reasonable suspicion. The state argued that even if the detention was unlawful, the
evidence was admissible under the inevitable discovery or independent source doctrine.
In order for this doctrine to apply "[T[he court must find that it would have been
discovered independent of the constitutional violation. In such cases, the state must
prove some official entity would have found the illegal evidence absent the illegal search
and seizure. (citations omitted). Speculation may not play a part in the inevitable
discovery rule; the focus must be on demonstrated fact, capable of verification."
In this case the state did not meet its burden because the officer "made it
abundantly clear that he never approached vehicles closely enough to see what was going on
inside without first ordering the occupants out of the vehicle." Bowen v.
State, 685 So. 2d 942 (Fla. 5th DCA 1996).
The defendant was originally stopped early in the morning on a lightly traveled side
street. He was swerving in and out of the southbound lane. When he exited the car, he
stumbled and had a strong odor of alcohol about his person. While waiting for a DUI
investigator, the deputy started a pat down search, but the defendant grabbed the
deputy's hand and told him to stop. The deputy arrested the defendant for obstructing. A
search incident to the arrest revealed drugs on the defendant's person. After the DUI
investigation the defendant was also arrested for DUI. The trial judge suppressed the
evidence. On appeal the court found that the inevitable discovery rule applied. "The
appellee was properly stopped and subsequently arrested, for DUI. The state established
that the evidence would have been discovered as a result of a valid search conducted
pursuant to appellee's arrest for DUI." Under this rule "evidence
obtained as the result of unconstitutional police procedures may still be admissible if it
is shown that the evidence would ultimately be discovered by legal means."
Speculation must not play a part in the application of the rule. In this case the DUI
investigation was lawfully underway and lawfully resulted in the defendant's arrest. There
was no speculation. State v. Duggins, 691 So. 2d 566 (Fla. 2d DCA 1997).
Evidence was secured from a safe in a home through an involuntary consent.
Nevertheless, the court ruled that the evidence was admissible pursuant to the inevitable
discovery doctrine. "The officers had sufficient probable cause to obtain a
warrant to search the safe based on information obtained from the individual arrested
during the execution of the second warrant.... The state carried its burden of
establishing by a preponderance of the evidence that the contents of the safe would have
inevitably been discovered in the course of a legitimate investigation, had the warrant
process not been aborted by the constitutionally deficient consent secured from the
Conners." Conner v. State, 701 So. 2d 441 (Fla. 4th DCA 1997).
"Second, the inevitable discovery doctrine does not apply because
Ingraham’s consent to search was given after he was arrested, which was after the
officers found the incriminating evidence in his apartment. ‘[W]hen consent is
obtained after illegal police activity such as an illegal search or arrest, the unlawful
police action presumptively taints and renders involuntary any consent to search.’ Connor
v. State, 803 So.2d 598 (Fla.2001)." Ingraham v. State, 811 So. 2d
770 (Fla. 2d DCA 2002).
Was there an independent source for the discovery of the evidence?
[Back]
When officers entered a house without a warrant and stayed there for fifteen hours
while waiting for the warrant all evidence secured as a result of the execution of the
warrant was admissible because the warrant was issued based on probable cause established
by a source independent from the information obtained by entry and the information was
secured prior to entry. Mercier v. State, 579 So. 2d 308 (Fla. 2d DCA 1991).
In the Mims case the officer's secured a warrant to search a barn based on the
informant's tip and the discovery of the marijuana plants. The state argued that the
warrant could have been sustained based upon the informant's tip standing alone and thus
constituted an independent source. The court disagreed because: (1) the tip consisted
solely of hearsay; (2) no facts were present which established the truth or reliability of
the informant; (3) the DEA agents observed nothing suggesting a drug offense. Mims v.
State, 581 So. 2d 638 (Fla. 5th DCA 1991).
"The fruit of the posionous tree doctrine is inapplicable when the State learns
of evidence from an independent source...." In this case bullets were removed
during an autopsy and were not the product of the alleged unlawful seizure of the
defendant's gun. Similarly, jewelry identified by the robbery victims were observed on the
defendant while he was in custody after a valid arrest and thus were not discovered as a
result of the seizure of the gun. Parker v. State, 611 So. 2d 1224 (Fla.
1992).
See cases above on inevitable discovery rule.
Is the evidence being used exclusively for impeachment?
[Back]
Despite the fact that evidence has been secured in violation of the fourth amendment,
it may be used to impeach the defendant, but it may not be used to impeach any other
defense witness. James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107
L.Ed.2d 676 (1990).
WHETHER FLORIDA'S PRIVACY AMENDMENT AS SET FORTH IN ARTICLE I, §23 WOULD BAR
ADMISSIBILITY OF EVIDENCE BECAUSE OF HIGHER STANDARDS THAN SEARCH & SEIZURE
PROVISIONS?
The standards are: [Back]
The defendant must show that the government has intruded into an area included
within the "zone of privacy" protected by that provision.
Requires proof by state of a compelling state interest served by the
intrusion.
() § 960.003 requires that a defendant in certain kinds of cases where bodily fluid
has been transmitted to the victim undergo HIV blood testing. The court held that this
constitutes a reasonable search and seizure and did not violate the right to privacy under
Art. I, §23. Where there was probable cause to believe that the defendant had committed
sexual battery and transmitted bodily fluids to the victim, there was no reasonable
expectation of privacy as to a blood test for HIV, the results to be disclosed only to the
victim and public health authorities. Even if there was a reasonable expectation of
privacy, there is a compelling state interest for the test. Fosman v. State,
664 So. 2d 1163 (Fla. 4th DCA 1995).
Requires proof by state that normal police procedures could not have secured the
evidence obtained by the intrusion.
Shaktman v. State, 553 So. 2d 148 (Fla. 1989); State v. Rutherford,
707 So. 2d 1129 (Fla. 4th DCA 1997)(en banc); Forrester v. State, 565 So. 2d
391 (Fla. 1st DCA 1990).
Electronic interceptions.
[Back]
Pursuant to §934.09(9) one may seek to suppress the contents of an unlawful
interception involving another person whose privacy rights were violated because "the
legislature has clearly provided that any person who is a party to an unlawful
interception may seek to suppress the content of an improperly intercepted message. The
right of privacy is a fundamental right which demands compelling state interest
standards.... The defendant was clearly free to assert her friend's lack of voluntary
consent." State v. Jones, 562 So. 2d 740 (Fla. 3d DCA 1990).
The conversation between a C.I. and the defendant was not admissible because the
officer could not say whether the C.I. consented and there was no other evidence of
consent. Payne v. State, 562 So. 2d 372 (Fla. 4th DCA 1990).
A deputy was conducting a surveillance in an area known for illegal drug activity. He
was using a listening device. A van appeared and two men approached it. With the listening
device the deputy overheard one of the men tell an occupant of the vehicle something that
he recognized as being typical of a drug transaction. The only conversation the deputy
heard took place between the two men outside the van. He did not hear any communication by
the defendant, who was inside the van. Based on these facts and other observations the
van was stopped and evidence was secured from the van. The defendant filed a motion to
suppress the evidence on the grounds that the listening device violated Chapter 934.
The trial court denied the motion. The defendant argued that he and the two men outside
of the van had a reasonable expectation of privacy - that their conversation would not be
intercepted. The court held that the conversation fell outside the purview of Chapter
934 because it did not constitute an oral conversation as defined in the statute. The
test set forth in the statute is substantially the same as the test used in a Fourth
Amendment privacy analysis. Thus, "[f]or a conversation to qualify as an ‘oral
conversation’ the speaker must have an actual subjective expectation of privacy"
in his oral communication, and society must be prepared to recognize the expectation as
reasonable under the circumstances.... We doubt that [the defendant] had an actual
subjective expectation of privacy in the conversation with the two men outside the van in
the road. There was no evidence that the occupants of the van made any effort or otherwise
took precautions to keep the conversation private." At any rate, this was not an
expectation of privacy that society is prepared to recognize. "A significant factor
used in determining the reasonableness of the defendant's expectation of privacy in a
conversation is the location in which the conversation or communication occurs."
Those occurred in an "enclosed or secluded area more likely to be protected
under" Chapter 934. Other significant factors are the manner in which the
communication is made and the kind of communication. "In this case, the circumstances
surrounding the making of the statement were highly suggestive of criminal activity (i.e.
a drug transaction): the same van passed through a known drug area several times that
evening without stopping; when the van finally did stop, it stopped on a public roadway
and two men approached it; one of the men who approached the van reached his hand inside,
withdrew it, reached inside the van again, and withdrew what appeared to be cash.
Moreover, the parties took no action to insure privacy for their conversation - they met
on a public street and did not attempt to enter the van to converse." Under these
circumstances defendant's expectation of privacy in the communication is not one society
is prepared to recognize as reasonable. Stevenson v. State, 667 So. 2d 410
(Fla. 1st DCA 1996).
"[O]ral communications conducted over a cordless phone within the privacy of
one's own home are protected by Florida's Security of Communications Act, chapter 934,
Florida Statutes (1991)." The interception of the communication takes place at
the point of origin, not the point of recordation. State v. Mozo, 655 So. 2d
1115 (Fla. 1995).
"[T]he ‘interception’ of a cellular call occurs both at the location
of the tapped telephone and at the site where law enforcement authorities hear and record
the call, and therefore the wiretap was proper here where the listening post was
located in Melbourne." The subscriber lived in a different city. State v.
McCormick, 719 So. 2d 1220 (Fla. 5th DCA 1998).
There is a judicially formulated two part test in applying the statutory provisions:
(1) the person must have a subjective expectation of privacy and (2) society must be
expected to recognize that expectation as reasonable. Based on this test, the court
ruled that the second and unconsented to interception and recording by a witness of
conversations and interviews with an attorney and the attorney’s clients in the
attorney’s law office, violated the constitution and statutory provisions. Horning-Keating,
777 So. 2d 438 (Fla. 5th DCA 2001).
Effect on
other constitutional provisions. [Back]
"[A]rticle I, section 12 of the Florida Constitution ... requires this
Court to construe Fourth Amendment issues in conformity with rulings of the United States
Supreme Court. As explained in State v. Hume, 512 So. 2d 185 (Fla.
1987), our right of privacy provision, article I, section 23, does not modify the
applicability of article I, section 12, particularly since section 23 was adopted prior to
the present section 12." State v. Jimeno, 588 So. 2d 233 (Fla. 1991), reversed
on other grounds, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed.2d 297 (1991). See also State
v. Hester, 618 So. 2d 1365 (Fla. 1993).
DISTINCTION FROM
MOTION IN LIMINE. [Back]
Normally does not involve claim of deprivation of constitutional rights.
Used usually to raise a claim that a party cannot establish a predicate, the probative
value of the evidence is outweighed by its prejudicial impact, or that the evidence is
otherwise inadmissible.
Often does not mean that the evidence will be excluded, but only that the jury will not
hear the evidence until it is presented in the form of a proffer and the court has an
opportunity to rule on its admissibility.
Not provided for in the rules.
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