LUIS A. MONTES-VALETON vs. STATE OF FLORIDA

On June 7, 2008, Montes-Valeton was involved in a single-vehicle car crash

in which a single fatality occurred. After the State filed a three-count information

charging Montes-Valeton with DUI Manslaughter, DUI Damage to Property or

Person, and Careless Driving, Montes-Valeton filed a motion to suppress the

results of an analysis of blood drawn from him following the car crash. On March

19, 2012, the trial court held a hearing on the motion to suppress.

Sergeant Luis Alexander Tejera, the first law enforcement officer to respond

to the scene of the crash, testified at the hearing that he observed Montes-Valeton’s

vehicle rolled over on its side and surrounded by a number of people on Interstate

95. Upon speaking to Montes-Valeton, Sergeant Tejera noticed that he was

worried, disoriented, confused, and that he emitted an odor of alcohol about his

breath. Sergeant Tejera became concerned that Montes-Valeton may have been

under the influence of alcohol. Soon thereafter, Sergeant Tejera delegated the role

of lead traffic crash investigator to Trooper Victor Molina and thereby engaged in

general communications with Trooper Molina. There is no indication in the record

that Sergeant Tejera communicated his concerns about Montes-Valeton’s possible

intoxication to Trooper Molina or to any other law enforcement officer.

Trooper Molina testified at the hearing that he performed routine

investigative functions at the scene of the crash including speaking to witnesses

and examining physical evidence such as tire marks and skid marks. During the

course of his investigation, Trooper Molina approached Montes-Valeton to

question him about the car crash. After this initial encounter, Trooper Molina

asked if Montes-Valeton would consent to a blood draw. Trooper Molina then

read the implied consent warnings that came with the blood draw kit to Montes

Valeton. Thereafter, Montes-Valeton agreed to the blood draw by signing a

written consent form provided by Trooper Molina that stated, “I have granted

permission for blood samples to be taken.” Trooper Molina oversaw the blood

draw performed by fire rescue and determined that Montes-Valeton was at fault for

the traffic crash.

At the hearing, Montes-Valeton argued that the trial court should grant the

motion to suppress because Trooper Molina lacked probable cause to extract blood

from him under section 316.1933, Florida Statutes (2008). The State countered

that the blood evidence should not be suppressed because it was a consensual

blood draw. The State further asserted that probable cause existed for the officers

to believe that Montes-Valeton was driving under the influence of alcohol at the

time of the car crash. The trial court denied the motion to suppress.





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At trial, Trooper Molina testified that he did not detect the odor of alcohol

while speaking to Montes-Valeton and that he could not recall whether Montes

Valeton appeared to be under the influence of alcohol. In response to questioning

by defense counsel, Trooper Molina testified that

whenever there’s a DUI, we read you an implied consent, basically saying that as a law enforcement agency, we are requesting for either blood, urine, or breath to determine your alcohol contents or if there [are] any drug[] contents in your body. And if you refuse to submit to any of these tests, the State of Florida suspends your license for 12 months, 18 months i[f] you have [had your license] suspended before like that.



Trooper Molina further testified that he read an implied consent to Montes

Valeton, and that he explained Florida’s implied consent law to Montes-Valeton.

After the State rested, Montes-Valeton renewed all of his previous motions—

including his motion to suppress—and moved for a judgment of acquittal. The

trial court denied Montes-Valeton’s motion for judgment of acquittal. The jury

ultimately found Montes-Valeton guilty of DUI Serious Bodily Injury, a lesser

included offense, and the trial court sentenced him to five years of incarceration.

Montes-Valeton appealed his conviction and sentence to the Third District.

He claimed that the trial court erred by admitting the blood test results because

Trooper Molina did not have probable cause to believe he was under the influence

of alcoholic beverages before requiring him to submit to the blood draw as

required by section 316.1933(1)(a). Montes-Valeton, 141 So. 3d at 207.





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On appeal, the Third District affirmed Montes-Valeton’s conviction and

sentence. Id. at 209. The Third District concluded that “the record reflects that the

law enforcement officer did not require [Montes-Valeton] to submit to the blood

test” and “the law enforcement officer obtained the blood sample after [Montes

Valeton] voluntarily consented to the blood draw.” Id. at 207. As an alternative

holding, the Third District concluded that “even if [Montes-Valeton] had not

‘voluntarily’ consented to the blood draw . . . the blood draw was also supported

by probable cause” under the fellow officer rule. Id. The Third District reasoned

that

although Sergeant Luis Tejera is the officer that smelled the odor of alcohol coming from [Montes-Valeton’s] breath and determined that [Montes-Valeton] was the driver of the vehicle involved in this singlevehicle accident in which the passenger was ejected and was transported from the scene in serious condition, under the fellow officer rule, Trooper Molina had probable cause to request that [Montes-Valeton] provide the blood drawn by fire rescue.



Id. In doing so, the Third District cited this Court’s explanation of the fellow

officer rule in Voorhees. Id. at 207-08.

II. ANALYSIS

We consider two arguments presented by Montes-Valeton related to the

blood draw. First, we address the claim that the fellow officer rule was

inapplicable because there was no communication between the officers concerning

Montes-Valeton. Second, we consider the contention that the consent given by





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Montes-Valeton was involuntary because it was given in response to coercive

direction threatening punishment for refusal to consent by an officer lacking

probable cause. The two arguments are interrelated. Because Montes-Valeton

prevails on the first argument, he also prevails on the second one.

A. Fellow Officer Rule

We first address whether Trooper Molina had probable cause under the

fellow officer rule. “In broad terms, the collective knowledge of police

investigating a crime is imputed to each member under a rule of law often called

the ‘fellow officer rule’ or ‘collective knowledge doctrine.’ ” Johnson v. State,

660 So. 2d 648, 657 (Fla. 1995). The primary purpose of the fellow officer rule is

“to assist officers investigating in the field to make arrests and conduct searches”

because “an officer in the field may need to act immediately based upon what he or

she is told by a fellow officer.” State v. Bowers, 87 So. 3d 704, 707-08 (Fla. 2012)

(emphasis added). “The fellow officer rule allows an arresting officer to assume

probable cause to arrest a suspect from information supplied by other officers.”

Voorhees, 699 So. 2d at 609.

In Voorhees, two men fled from Florida to Mississippi after committing a

murder. Id. at 605. Thereafter, Mississippi officers offered both men a place to

stay in the local jail on a cold and rainy evening in accordance with local custom.

Id. Both men accepted and Voorhees provided the officers with a fictitious name.





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Id. The next day, the officers ran a check on Voorhees’ fictitious name and would

not permit him to leave the jail until he provided his true identity. Id. at 605-06.

Voorhees called a friend to confirm his fictitious name, but the friend instead

notified the Mississippi officers that Pasco County officers were looking for

Voorhees in connection with a murder. Id. at 606. The Mississippi officers then

called the Pasco County Sheriff’s Department which confirmed that Voorhees was

wanted in connection with a murder. Id.

This Court found that “Voorhees’ detention was legal beginning at the time

that the Mississippi officers became aware that Voorhees and Sager were wanted

for a murder in Pasco County.” Id. at 610. Prior to this point in time, the

Mississippi officers and their Pasco County counterparts were involved in

unrelated investigations and had not engaged in any communications regarding the

murder investigation. But once the Pasco County officers communicated the

critical fact that Voorhees was wanted for murder to the Mississippi officers, the

fellow officer rule applied and the detention of Voorhees by the Mississippi

officers became legal. See id.

We reaffirm our holding in Voorhees that “[t]he fellow officer rule allows an

arresting officer to assume probable cause to arrest a suspect from information

supplied by other officers.” Id. at 609 (emphasis added). Consistent with

Voorhees, we recognize that the fellow officer rule does not allow an officer to





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assume probable cause for an arrest or a search and seizure from uncommunicated

information known solely by other officers. Id.

The State argues that the fellow officer rule applies in this case simply

because Sergeant Tejera engaged in “general communications” with Trooper

Molina regarding the same investigation. But this assertion is inconsistent with our

case law.

[The fellow officer rule] typically requir[es] a direct communications link between officers who possess probable cause and the arresting officer. This often takes the form of a direct order that the arrest be effected, United States v. Woods, 544 F.2d 242 (6th Cir. 1976), cert. denied, 429 U.S. 1062 (1977), but also can consist of general communications among officers at least one of whom possesses probable cause. United States v. Edwards, 885 F.2d 377 (7th Cir. 1989).



Johnson, 660 So. 2d at 657. The officer conducting the search or arrest must be

“act[ing] . . . based upon what he or she is told by a fellow officer.” Bowers, 87

So. 3d at 708. Nothing in the record indicates that Sergeant Tejera or any other

officer directed Trooper Molina to take a blood draw from Montes-Valeton, gave

any indication that probable cause existed for such a blood draw, or communicated

anything regarding Montes-Valeton to Trooper Molina. Without the

communication to the arresting officer of some information that initiates the arrest,

the predicate for application of the fellow officer rule is lacking. Trooper Molina

therefore lacked imputed probable cause knowledge of Montes-Valeton’s

intoxication under the fellow officer rule. See Edwards, 885 F.2d at 382 (“A





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supervising officer’s knowledge about a defendant cannot be relied upon to

provide probable cause for his arrest where there is no evidence that such

knowledge was communicated to the agents on the scene who actually made or

ordered the defendant’s arrest.”).

B. Voluntariness of Consent

We now address whether the blood draw was permissible because Montes

Valeton voluntarily gave his consent. “[T]he Fourth and Fourteenth Amendments

require that a consent not be coerced, by explicit or implicit means, by implied

threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973); see

Bumper v. N. Carolina, 391 U.S. 543, 550 (1968) (“Where there is coercion there

cannot be consent.”). “The question of whether a consent is voluntary is a question

of fact to be determined from the totality of the circumstances.” Reynolds v. State,

592 So. 2d 1082, 1086 (Fla. 1992). “[I]t is not the presence or absence of any one

factor alone that determines the validity of a consent. The question turns on the

particular circumstances of each case.” Id. at 1087. In the absence of an illegal

detention or other illegal conduct on the part of police, “the voluntariness of

the consent must be established by a preponderance of the evidence.” Id. at 1086.

“Where there is an illegal detention or other illegal conduct on the part of the

police, a consent will be found voluntary only if there is clear and convincing

evidence that the consent was not a product of the illegal police action.” Id.





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When examining the voluntariness of a person’s consent under the totality of

the circumstances, Florida courts have considered a non-exclusive list of factors

including: (1) the time and place of the encounter; (2) the number of officers

present; (3) the officers’ words and actions; (4) the age and maturity of the

defendant; (5) the defendant’s prior contacts with the police; (6) whether the

defendant executed a written consent form; (7) whether the defendant was

informed that he or she could refuse to give consent; and (8) the length of time the

defendant was interrogated before consent was given. See, e.g., State v.

Hernandez, 146 So. 3d 163, 165 (Fla. 3d DCA 2014).

The State argues that Montes-Valeton voluntarily consented to the blood

draw. We disagree. After asking Montes-Valeton to consent to a blood draw,

Trooper Molina read the implied consent warnings that came with the blood draw

kit to Montes-Valeton. The warnings threatened that a refusal would result in the

suspension of his driver license. Trooper Molina further explained Florida’s

“implied consent law”1 to him. But because Trooper Molina lacked probable cause



1. The implied consent law consists of sections 316.1932, 316.1933, and 316.1934, Florida Statutes (2008), “which essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence.” Robertson v. State, 604 So. 2d 783, 789 n.4 (Fla. 1992). The record before this Court does not provide full details concerning what Trooper Molina explained to Montes-Valeton regarding Florida’s implied consent law.





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to require the blood draw under section 316.1933(1)(a), neither the implied consent

warnings nor Florida’s implied consent law applied to Montes-Valeton. See, e.g.,

Robertson v. State, 604 So. 2d 783, 790 n.7 (Fla. 1992) (“[T]he implied consent

statute . . . appl[ies] only when blood is being taken from a person based on

probable cause that the person has caused death or serious bodily injury as a result

of a DUI offense specified in the statutes.”); State v. Murray, 51 So. 3d 593, 595

n.1 (Fla. 5th DCA 2011) (“Here, [the defendants] were not under lawful arrest and

did not seek medical treatment, and the troopers did not have probable cause to

believe that they were impaired. Consequently, the implied consent law was

clearly not implicated.”); State v. Burnett, 536 So. 2d 375, 377 (Fla. 2d DCA 1988)

(“Here, the first requirement [of section 316.1932(1)(c)] was not met.

Accordingly, section 316.1932(1)(c) was not applicable to this situation; therefore,

the implied consent warning should not have been given to [the defendant].”).

Montes-Valeton was thus improperly threatened with punishment.

The fact that Trooper Molina improperly threatened Montes-Valeton with

the suspension of his driver license for refusing to give consent to the blood draw

renders his consent involuntary. See, e.g., State v. Slaney, 653 So. 2d 422, 430

(Fla. 3d DCA 1995) (“[W]here, as here, a DUI arrestee consents to a blood

withdrawal after being improperly advised that he will lose his driver’s license if

he fails to give such consent, the ensuing consent is involuntary in nature because





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it was induced by a misrepresentation.”); see also Cooper v. State, 587 S.E.2d 605,

612 (Ga. 2003) (“Consequently, the trooper completely misled [the defendant],

albeit unintentionally, about his implied consent rights, and any consent based

upon the misrepresentation is invalid.”). Because of the coercion arising from the

improper threat, Montes-Valeton’s consent was involuntary.