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Motion To Suppress – Dog Sniff

COMES NOW the Defendant, by and through the undersigned counsel, pursuant to Rules 3.190(h), Florida Rules of Criminal Procedure, and respectfully moves the Court to suppress any and all evidence seized and/or obtained from him, including the firearm recovered from his person and/or the vehicle which he occupied, and any and all written and/or oral statements made by him, and in support thereof, states as follows:

STATEMENT OF FACTS

1. On September 9, the client and his wife were stopped, in Jacksonville, Florida. Attached as Exhibit A is a copy of the Arrest and Booking Report (“Report”).
2. According to the Report, and the testimony of Officers D. and J., the client and his wife were stopped because their vehicle tag had expired three days earlier, on September 6.
3. The officers had no other reason to stop the vehicle.
4. The officers did not have a reasonable suspicion that the client and his wife were involved in criminal activity.
5. Officer D. approached the driver’s side of the vehicle, and asked the client’s wife for her driver’s license, which she provided.
6. Officer J. approached the passenger side of the vehicle, and asked the client for his driver’s license, which he provided.
7. The client and his wife had no outstanding warrants.
8. Officer D. asked the client’s wife for consent to search the vehicle. She advised him that the vehicle was not hers, and that her husband was the owner.
9. The client did not consent to a search of the vehicle.
10. Officer D. did not have probable cause to search the vehicle.
11. Officer D. called for a K-9 unit.
12. The client and his wife were not free to leave.
13. Officer J.C.W later arrived on the scene with his dog.
14. The client and his wife were asked to step out of their vehicle, and they complied with the officer’s request.
15. K-9 unit is a dog trained in the detection of narcotics.
16. The dog is not trained to detect firearms.
17. Officer W. testified that the K-9 unit began his search at the front driver’s side of the vehicle, and walked one and a half times around the vehicle.
18. Officer W. testified that the K-9 alerted on the passenger door of the vehicle.
19. After the dog alerted, the officers searched the vehicle, the client, and his wife.
20. The officers did not find any narcotics in the vehicle, or on either the client or his wife.
21. Officer J. found a firearm under the passenger seat of the vehicle, where the client had been seated.
22. The client was arrested for carrying a concealed firearm, and for violation of an injunction for protection against domestic violence.
23. On November 4, the State charged the client with (1) carrying a concealed firearm, in violation of F.S. §790.01(2), a third degree felony, carrying a maximum penalty of up to five years in prison, and (2) violation of an injunction for protection against domestic violence, in violation of §741.31(4)(a)5, a first degree misdemeanor, punishable by up to one year in jail.

MEMORANDUM OF LAW

A. No Probable Cause for Detention
When a driver is stopped for a traffic infraction, he may not be detained any longer than the time necessary to write a citation, unless a police officer has a “reasonable or founded suspicion that criminal activity may be afoot.” Napoleon v. State, 985 So.2d 1170, 1173 (Fla. 1st DCA 2008), citing Golphin v. State, 945 So.2d 1174 (Fla. 2006).

In Napoleon, supra, the First DCA reversed a trial court order denying a motion to suppress evidence discovered as the result of a dog search, following a traffic stop. The driver of the vehicle, Napoleon, was a passenger in a vehicle stopped for an improper lane change, and for a bad tag light. When the officer approached, he saw Napoleon in the back seat, and observed tattoos and clothing that gave him concern about possible gang activity, and additionally reported that Napoleon was “extremely nervous.” Napoleon, supra, at 1172. Furthermore, Napoleon had no identification, and the officer recognized the driver, as being somebody he knew to have a past involving felony narcotics, and gang activity. He detained the vehicle, and when backup arrived, conducted a dog search, which indicated a narcotic odor, and lead to the search and seizure of the evidence at issue.

When an officer detains an individual longer than is necessary to write a citation, a traffic stop becomes an investigatory stop. Golphin, supra, at 1174. This additional detention is illegal, unless there is a reasonable or founded suspicion to justify the investigatory stop. Id. Furthermore, the “officer must have an objective and particularized basis for the detention, rather than an inchoate suspicion or hunch.” Napoleon, supra, at 1174, citing Tillman v. State, 934 So.2d 1263, 1273 (Fla. 2006).

“Behavior that is merely ‘suspicious but not demonstrably or conceivably criminal’ does not constitute founded suspicion for an investigatory stop.” Napoleon, supra, at 1174, Hills v. State, 629 So.2d 152, 156 (Fla. 1st DCA 1993). The Napoleon court describes a suspicion leading to the investigatory stop as hunch at best and held that the 20 minute detention after the initial traffic stop was illegal, and reversed the trial court order denying suppression. Napoleon, supra, at 1172.

In the instant case, we have a detention, based upon an expired tag. Officers D. and J. did not have a reasonable or founded suspicion of criminal activity, necessary to justify the client’s detention. The officers should have written a traffic ticket and sent the client on his way. Because the detention of the client was illegal, the evidence here should be suppressed.

The client refused to allow search of his vehicle. However, this is not evidence of any illegal activity, and can never form probable cause for a detention. To rule otherwise would present a law abiding citizen with a Hobson’s choice, of waiving his right and being searched, or asserting his right not to be searched, and being searched as a result of that assertion.

The position, while not uncommon among law enforcement officers, that anyone who refuses a search must have something to hide, ignores the fact that there is nothing illegal, improper, or suspicious about an individual’s decision to invoke his rights under the United States and Florida Constitutions. Those same documents, guarantors of our individual liberty, making this country unique among the nations of the world, allow the right to counsel.

Numerous other Florida courts have held a detention, under similar circumstances, for the length of time at issue here, to be illegal, and granted suppression. See, eg., Hines v. State, 737 So.2d 1182, 1185 (Fla. 1sr DCA 1999); Sparks v. State, 842 So.2d 876, 877 (Fla. 2d DCA 2003); Williams v. State, 869 So.2d 750 (Fla. 5th DCA 2004); Elridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002); Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001); Hoover v. State, 880 So.2d 710 (Fla. 5th DCA 2004).

Therefore, not only was this an illegal detention, mandating suppression, but an illegal arrest, mandating suppression. “Every seizure having the essential elements of a formal arrest is unreasonable unless it is supported by probable cause.” Id. at 200, quoting Michigan v. Summers, 452 U.S. 692, 700 (1981).

B. No Probable Cause to Search
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV; see also art. I, § 12, Fla. Const. Furthermore, searches conducted without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment, subject to a few exceptions. “Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed. 576 (1967).

One exception to the warrant requirement is the “automobile exception,” first established in Carroll v. United States, 267 U.S. 132, 45 S.CT. 280, 69 L.Ed. 543 (1925). Carroll held that a warrantless search of a vehicle based upon probable cause to believe the vehicle contains contraband is not unreasonable. Id. However, case law makes clear that probable cause to search a vehicle is based on the same facts that would justify the issuance of a warrant. See Maryland v. Dyson, 527 U.S. 465, 47, 119 S.CT. 2013, 144 L.Ed.2d 442 (1999) and United States v. Ross, 456 U.S. 789, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The probable cause standard “depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 124 S.CT. 795, 157 L.Ed.2d 769 (2003).

In this case, the officers did not have probable cause to conduct a warrantless search of the client’s vehicle at the time of the stop. Their probable cause was based solely on the fact that the dog alerted on the vehicle. The Florida Supreme Court has held that the State has the burden of establishing that the officer had a reasonable basis for believing the dog to be reliable, in order to establish probable cause. Harris v. State, 71 So.3d 756, 759 (Fla. 2011). The reliability of the dog as a detector of illegal substances is also subject to a totality of the circumstances analysis. Id. Here the State cannot establish the reliability of the dog, and thus, no such reasonable basis to search existed.

In Harris, supra, the Florida Supreme Court held that whether a dog has been sufficiently trained and certified must be evaluated on a case-by-case basis. Id. at 769. In Harris, the court discussed the problem of false alerts, potential for handler error, and the possibility of alerts to residual odors. Id. The court held that a necessary part of the totality of the circumstances analysis of the dog’s reliability, is an evaluation of whether the dog has falsely alerted in the past, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors.

In this case, based on the totality of the circumstances, the State cannot establish the dog’s reliability, and therefore cannot establish that the officers had probable cause to search the vehicle. Thus the search of the vehicle was illegal, and the evidence found therein must be suppressed.

C. Stop and Frisk Law
Section 901.151(2), Florida Statutes (the “Stop and Frisk” law), provides that an officer may stop and detain a person when he has a reasonable suspicion that he has committed, is committing, or is about to commit a crime, and may temporarily detain that person to ascertain his identity and the circumstances surrounding his presence in the area. However, for the reasons noted, the officers did not have probable cause or reasonable suspicion to believe that the client and his wife had committed any crime.

None of the procedures of the Florida Stop and Frisk law were complied with. Therefore, the results of the illegal detention should be suppressed. Moreover, the Florida Stop and Frisk law contains its own suppression provision. It mandates that, No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).

(emphasis added.)
Since the stop, search and seizure of the client and his vehicle was not conducted in compliance with the Florida Stop and Frisk law, no such evidence is admissible in court.

D. Statements
The statements made by the client should also be suppressed, because (1) they constitute fruit of the illegal stop and detention, and (2) a Miranda violation occurred. “In Miranda, the United States Supreme Court held that a person taken into custody or otherwise deprived of his freedom by the authorities in any significant way must be warned [of his rights] prior to any questioning. After such warnings have been given, the individual may knowingly and intelligently waive those rights, and agree to answer questions or make a statement.” Brown v. State, 565 So.2d 304, 306 (Fla. 1990), cert. denied, 498 U.S. 992. Thus, an individual has to knowingly and intelligently waive his rights.

In this case, no such waiver exists. At the time the client was questioned, he was not free to leave, and was in the custody of JSO. All evidence of those statements must be suppressed.
WHEREFORE, the client moves the Court to enter an order suppressing any and all evidence seized and/or obtained from him, including the officers’ observations, evidence recovered from his person and/or the vehicle he occupied, and any and all written and/or oral statements made by him.