Legal Pleadings:

Answer Brief – Counterfeit Identification Card


Throughout this brief, Appellant, the State of Florida, will be referred to as Appellant or State. Appellee, will be referred to as Appellee or Defendant. The Record on Appeal, designated as Record of Appeal Volume 1 of 2 and Record of Appeal Volume 2 of 2 are continuously paginated and will be referred to as R., followed by the appropriate page number.


Pursuant to Florida Rule of Appellate Procedure 9.210(c), does not adopt Appellant’s Statement of the Case and Facts. Although not addressed in Appellant’s Initial Brief, there were significant contradictions and discrepancies between the various witnesses in the trial court. This Statement of the Case and Facts comprises those facts most favorable to upholding the trial court’s order
On July 30, the Appellee was arrested for allegedly possessing a counterfeit identification card, a third degree felony. (R. 1). A one count Information charging unauthorized possession of an identification card was filed on August 7th. (R. 7).
On October 12, the Appellee filed his Motion to Suppress and Incorporated Memorandum of Law (hereinafter Motion to Suppress). (R. 11-20; 30-39). The Motion to Suppress comprised ten pages of legal argument and contains detailed allegations regarding the illicit detention and search of the Appellee, as well as attached transcripts of depositions from the relevant law enforcement officers. The search of Appellee was conducted without a warrant and Appellee’s Motion to Suppress cited numerous legal grounds seeking suppression of the identification document recovered from Appellee’s wallet. The Motion to Suppress was predicated on both an illegal detention of Appellee and a subsequent illicit search.
The hearing on Defendant’s Motion to Suppress was held in the afternoon of January 13. After hearing testimony from State witnesses Special Agent L., Special Agent W., and Agent E., counsel for Appellee called witnesses V. C., M. G., and the Appellee.
On the date of Appellee’s arrest, law enforcement officers and various other city, state, and federal officials entered the store without a warrant. (R. 91-97). Those individuals were employed by the Jacksonville Sheriff’s Office, the City of Jacksonville Fire Marshall, the Jacksonville Electric Authority, the Florida Department of Alcohol Beverages and Tobacco, the United States Department of Homeland Security, the United States Department of Immigration and Customs Enforcement and other unknown governmental entities. (R. 93). Appellant’s own witnesses agreed that on their arrival, Appellee “was not free to leave as soon as [Special Agent L.] walked into the store”. (R. 122). An unknown number of individuals entered the convenience store and the witnesses for Appellant testified that they entered after at least half a dozen other law enforcement officers or governmental officials had entered the business. (R. 137). Several other individuals entered after Appellant’s witnesses entered the business. (R. 137-38). The law enforcement officers and government officials who first entered the business did not testify at the hearing on Appellee’s Motion to Suppress, they were not provided for in discovery, and their identity and employing agency is unknown to Appellee.
The first individuals to enter the convenience store were armed law enforcement officers who entered the small store with masks covering their faces. (R. 160). The first law enforcement officer to enter had his firearm drawn. (R. 178). The officers announced their presence by saying, in Spanish, “Don’t move. We are the police.” (R. 160). The individuals in the store, patrons and employees, were taken to the back of the store and not allowed to leave, move, or speak to one another. (R. 160). Several individuals in the store were detained in the back of the store while a search was conducted and were not allowed to speak to one another during that search. (R. 165). The store was searched without presentation of a warrant. (R. 160). On information and belief, no warrant existed for the search and none was presented or indicated to exist in the trial court. None of the numerous law enforcement and other witnesses that first entered the store were disclosed in discovery. (R. 9). The law enforcement officer who may have initially detained Appellee was not listed in discovery and did not testify at the hearing on Appellee’s Motion to Suppress. (R. 41)
Appellee is not an employee of the store, but merely a patron. (R. 178). Appellee was put up against a wall and patted down without consent. (R. 161). Appellee was patted down three times. (R. 178). Subsequent law enforcement officers entered and asked Appellee if he had guns or drugs. (R. 181). Appellee was then asked for identification and produced a valid Mexican Passport. (R. 183). Appellee was taken outside to his truck and forced up against his vehicle. (R. 180). Appellee was questioned further after producing identification. (R. 184-86).
After his detention in the convenience store, Appellee was taken outside by law enforcement officers to his vehicle. (R. 184-85). Appellee did not give law enforcement officers permission to search his vehicle and was never asked for his consent. (R. 184). Special Agent W. asked Appellee if he searched Appellee’s vehicle, would he “’find any drugs or anything else?’” (R. 160). Without permission and already in possession of valid identification, Special Agent W. reached into Appellee’s vehicle, removed Appellee’s wallet, and searched it. (R. 186-88). A card was removed from the wallet that stated that it was a “Florida Comercial (sic) ID Card” and that it was not a government ID. (R. 133).
Appellant’s own witnesses testified that the Appellee was not free to leave the business:
Counsel for the Appellee: Was he free to leave, when you walked into the store?
Special Agent W.: Not until we determined what his business was there, and what he was doing there, no.
Counsel for the Appellee: Well, can you articulate what criminal activity you were worried he was engaged in?
Special Agent W.: Well, we didn’t know who he was.
Counsel for the Appellee: I understand.
Special Agent W.: And we didn’t know what he was doing. If he had some — again, if we were looking into human trafficking, human smuggling, how do we not know that he’s not someone there involved in that?
Counsel for the Appellee: I understand. What suspicion did you have that he was?
Special Agent W.: At that time, we didn’t.
(R. 146). Special Agent W.’s own testimony is that he told the Appellee that he was required to provide identification, even though Special Agent W. did not suspect him of any criminal activity. (R. 146, 196). Special Agent W. further testified that his memory of finding the document in question is “poor” and that he more likely than not would not have allowed Appellee to retrieve the document from the truck himself. (R. 196-97).
After hearing the evidence and testimony of the six witnesses, as well as the argument from Appellant and Appellee, the trial court granted Appellee’s Motion to Suppress Evidence. (R. 216). The trial court specifically found that Appellee was detained and that such a detention was consistent with the testimony of Appellant’s witnesses. (R. 216). A pro-forma written order was entered and the trial court made no specific findings of fact or assessments as to the credibility of any witnesses. (R. 29). Appellant subsequently filed a timely notice of appeal and the instant appeal followed.


The trial court did not err by granting Appellant’s Motion to Suppress because, even giving deference to the testimony of Appellant’s witnesses, the encounter between law enforcement officers and Appellee was consistent with an investigatory stop. Further, assuming arguendo, that there was a consensual encounter, the search of Appellee’s wallet and the recovery of the document in question was not consensual.
However, as the trial court did not make findings of credibility, the testimony must be viewed in light most favorable to upholding the ruling of the trial court. Utilizing that standard, the State is asserting that a consensual encounter exists where at least a dozen law enforcement officers storm into a commercial business with masks on and guns drawn, detain everyone in the store, throw an individual up against the wall, pat him down, demand to see identification, and then search through his wallet without permission after such a detention, all without even a bare suspicion that the individual was involved in any criminal activity.
A colorable appeal has not been presented to this Court and the Initial Brief of the State ignores the facts adduced and presented in the trial court and is wholly misleading to this Court. Such an assertion evinces either a complete lack of understanding of the standard of review before this Court or bad faith by the State of Florida in the administration of justice. Asserting that what occurred in the record before this Court offends all notions of Constitutional law, wholly lacks merit, is frivolous in nature, and should be sanctioned or admonished by this Court.


The standard of appellate review of a court’s ruling on a motion to suppress is a mixed question of law and fact. Robinson v. State, 885 So. 2d 951, 953 (Fla. 1st DCA 2004). The trial court’s ruling on a motion to suppress is clothed with a presumption of correctness. State v. Shaw, 784 So. 2d 529, 530 (Fla. 1st DCA 2001). All evidentiary issues and reasonable inferences must be resolved “in a manner most favorable to sustaining the trial court’s ruling.” Id. citing McNamera v. State, 357 So. 2d 410, 412 (Fla. 1978). Accordingly, findings of fact should be upheld if supported by competent, substantial evidence, construing all evidence and reasonable inferences there from in a manner most favorable to sustaining the trial court’s ruling. Owen v. State, 560 So. 2d 207, 211 (Fla. 1990). See also State v. Allen, 994 So. 2d 1192, 1194 (Fla. 5th DCA 2008); Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). The trial court’s application of law to the factual findings should be reviewed de novo. Shaw, 784 So. 2d at 530; Hines, 737 So.2d at 1184. The trial court’s ruling is presumed correct and the evidence is reviewed in light most favorable to sustaining order. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).

Initially, Appellant argues that “the trial court erred because under the totality of the circumstances, competent substantial record evidence demonstrates that a consensual encounter occurred between Defendant and Agents L. and W.” Initial Brief at 7. Respectfully, the trial court declined to make such a determination and this more accurately reflects this Court’s standard of review. In the hearing below, Appellant presented no witnesses as to what happened between Appellee and the first set of law enforcement officers entered the convenience store.
In the trial court below, Appellant failed to disclose as witnesses the majority of the municipal, state, and federal officials involved in the raid of the convenience store where Appellee was a patron. (R. 9). The trial court found, based on the testimony of Appellant’s witnesses, that at least half a dozen armed law enforcement officers entered the store before any of the individuals that testified on behalf of Appellant entered the store. Not a single one of those individuals testified at the hearing or were disclosed to Appellee. The only record evidence as to what occurred with those individuals was by Appellee’s witnesses, who testified that officers entered with masks on, guns drawn, ordered everyone to remain still, and began a pat down search of Appellee. (R. 160-61, 178). Further, even the testimony of Special Agent W. is unable to establish that the actual seizure of the document in question was consensual. (R. 196-97).
In a motion to suppress, in the absence of a warrant, the burden is on the State to demonstrate that the search was lawful. In Reeves, the Fifth District Court of Appeal found that “a motion to suppress . . . raises the issue of the legality of a search and seizure of the evidence.” State v. Reeves, 587 So. 2d 649 (Fla. 5th DCA 1991). In Brown, the Third District Court of Appeal stated that “[t]he only question before the court on a motion to suppress is the validity of the seizure.” State v. Brown, 257 So. 2d 263, 264 (Fla. 3d DCA 1972). See also Robertson v. State, 114 So. 534 (Fla. 1927).
In the hearing below, the trial court was tasked with determining whether the initial encounter between the Appellee and the law enforcement officers was consensual or otherwise permitted by law. Additionally, the trial court must determine, if the initial encounter was consensual, at what point the encounter was no longer consensual. Florida courts have clearly defined the three types of citizen-police encounters that frequently occur. In Popple v. State, the Florida Supreme Court enumerated and defined those encounters, finding that:
The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio. At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. . . .
[T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed.

Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).
By looking at the totality of the circumstances, this Court must determine whether the officers’ conduct would have communicated to a reasonable person that they were not free to terminate the encounter. See State v. Ferrel, 705 So. 2d 1051, 1052 (Fla. 1st DCA 1998); Jones v. State, 658 So. 2d 178, 180 (Fla. 1st DCA 1995). If it is determined that a reasonable person in the situation would not have felt free to leave, the situation is deemed an investigative stop; otherwise, the situation is deemed a consensual encounter. See Brooks v. State, 745 So. 2d 1113 (Fla.1st DCA 1999).
As conveniently indicated in the Appellant’s Initial Brief at 9, the Supreme Court has held that:
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980). In the instant case, there was a “threatening presence of several officers”, as numerous officers entered the convenience store with weapons drawn and masks on. (R. 160, 178). There was “the display of a weapon by an officer”, as there was evidence that a law enforcement officer had a firearm drawn and other officers had holstered firearms. Id. There was “some physical touching of the person of the citizen”, as Appellee was pushed up against a wall and patted down three times. (R. 161, 78). Finally, there was “use of language or tone of voice indicating that compliance with the officer’s request might be compelled”, as law enforcement officers told everyone in the store not to move, constantly asked if they had any guns or drugs, and did not allow them to speak to one another. (R. 160).
In addressing a factual situation where officers “although not in uniform, exhibited badges and possessed handguns as they exited the vehicle” surrounded several individuals outdoors. G.M. v. State, 19 So. 3d 973, 980 (Fla. 2009). The Florida Supreme Court cautioned that no reasonable person would leave under such a scenario and that:
It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

G.M., 19 So. 3d at 980. In this case, there is significant subjective, through the testimony of Appellee and objective evidence that Appellee was not free to leave. Although Special Agent W. and Special Agent L. testified that their contact with Appellee was consensual, Appellant failed to produce any evidence regarding the actions by law enforcement officers who initially entered the convenience store.
Even in the absence of the testimony of the Appellee’s three witnesses, there is competent, substantial evidence to uphold the finding of the trial court. As the Fifth District Court of Appeal has held, “where evidence involved at the suppression hearing supports both a finding of a consensual encounter and a seizure and where the trial judge makes a factual finding that a reasonable person under the circumstances would not feel that he was free to go, the trial court’s decision to suppress the evidence will be affirmed. State v. Newton, 737 So. 2d 1252, 1252-53 (Fla. 5th DCA 1999); citing Hollinger v. State, 620 So. 2d 1242 (Fla.1993).
Both the Supreme Court of Florida and the United States Supreme Court have held that, “any warrantless seizure of an individual by law enforcement officers must be based on reasonable suspicion that the individual is engaged in wrongdoing.” Caldwell v. State, 41 So. 3d 188, 195 (Fla. 2010). In this case, law enforcement officers testified that they had no suspicion whatsoever that Appellee was engaged in illicit activity. (R. 146). There was no evidence or suspicion that Appellee was at any point engaged in illegal activity. Law Enforcement Officers continued to detain Appellee and search his property even after he provided valid identification and after submitting to the authority of law enforcement. (R. 183-86).
It is clear that Appellee was detained and there was no reasonable suspicion or any other lawful reason to detain Appellee. However, assuming arguendo, that the encounter between Appellee and the unknown law enforcement officers was consensual, the trial court’s ruling should still be sustained and the evidence suppressed. Even in the event of a consensual encounter, the record evidence is that the search that resulted in the tangible evidence obtained by law enforcement was done so without the consent of Appellee and without any other legal reason or justification.
Appellee did not give law enforcement officers permission to search his vehicle and during cross-examination explicitly stated that his wallet was searched without permission. (R. 184). Special Agent W., after being handed a valid passport by Appellee, asked Appellee if he searched Appellee’s vehicle, would he “’find any drugs or anything else?’” (R. 160). Again, without permission, Special Agent W. went into Appellee’s vehicle, retrieved Appellee’s wallet, and searched it, finding the document in question. (R. 186-88). At the time of this search, there was no reasonable suspicion of criminal activity on the part of Appellee. Although this Court must resolve factual disputes in favor of upholding the trial court’s ruling, even Special Agent W. admitted that he has no specific recollection of how he actually obtained the document, admitted that he likely would have retrieved it from Appellee’s wallet himself, and admitted that his memory of the actual event was poor. Id. It is aphoristic that a law enforcement officer lacks authority to search an individual or his property absent legal authority or permission, both of which are lacking in this case.
Appellant’s Initial Brief, although generally citing the correct legal standards and law that this Court should apply, clearly ignores the record below. Appellant asks this Court to “reverse the trial court’s judgment and sentence” and determine that “competent and substantial evidence exists to indicate that the Defendant did not acquiesce to a show of police authority, and thus, engaged in a consensual encounter.” Initial Brief at 14. Throughout the Initial Brief, Appellant fails to acknowledge the testimony of any witnesses that were not called by Appellant, ignores facts and testimony that is detrimental to their cause, and fails to acknowledge that all factual inferences must be resolved in a manner most favorable to sustaining the trial court’s ruling when actually discussing the merits of the case. The trial court did not make any factual determinations or otherwise discredit the testimony given by Appellee and his witnesses. Given the content of said witnesses, the assertions in Appellant’s Initial Brief are wholly without merit and should be sanctioned. A review of Appellant’s Initial Brief indicates that here is no suggestion or argument that the trial court applied the incorrect law. Additionally, there is no suggestion or argument that there is not competent, substantial evidence to uphold the ruling of the trial court. Appellant invites this Honorable Court to ignore the testimony of half the witnesses that testified before the trial court, ignore the findings and conclusions of the trial court, fill in testimony for events that occurred before the agents that testified were even present, fill in memory gaps of the agents regarding the actual seizure of the document, completely reweigh the evidence adduced below, and ignore the appropriate standard of review. Appellee respectfully requests that this Court decline that invitation, uphold the ruling of the trial court, and based on the frivolous nature of Appellant’s Initial Brief, grant any other relief that this Court deems necessary and proper.


WHEREFORE, in light of the foregoing, Appellee respectfully requests this Court to affirm the trial court’s grant of Appellee’s Motion to Suppress and grant any other relief this Court deems necessary and proper.