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Motion to Suppress Evidence – Possession of Cocaine

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

STATEMENT OF FACTS

1. On June 23, the client was arrested for allegedly possessing a modest amount of cocaine.
2. A one count Information charging possession of cocaine (a third degree felony) was filed on July 16.
3. Three officers were involved in this investigatory stop and arrest. Sgt. J. C. L. was the senior officer at the scene. He led the investigation, did the background check on the client, and searched the purse/bag. Officer B. S. H. was riding with Sgt. L. He wrote the narrative in the Arrest and Booking Report. Officer L. M. F. is listed as the reporting officer. However, as noted, Officer H. wrote the Narrative in the Arrest and Booking Report.
4. All three officers were assigned to the “Crime Free Multi-Housing Unit.” The purpose of that unit is to investigate criminal conduct in such multi-housing areas, especially potential drug dealing. However, the location where the client and her father were detained is some mile to a mile and a half from the nearest Multi-Housing Unit. Indeed, there were no such multi-housing units in the area of where the client’s vehicle was stopped.
5. Sgt. L. was driving a marked police vehicle in which Officer H. was a passenger.
6. Officer F. was in his separate vehicle. All three officers, in their two separate vehicles, communicated by radio and converged on the client’s vehicle. The client’s vehicle was driven by her 82 year old father. The vehicle was a ‘99 Chevrolet.
7. According to the Arrest and Booking Report, and as asserted by each of the officers, the officers “pulled over to assist the occupants with any issues they may have.”
8. However, neither the client, nor her 82 year old father requested their assistance in any way.
9. No “issues” were observed, other than the fact the client and her father were “pulled over,” and it might be a broken down car. However, the officers never inquired about any car trouble, and immediately learned there was no car trouble. Indeed, the officers provided no assistance to the client and her father whatsoever. When the officers learned, virtually immediately, that the client’s 82 year old father, who was the driver, was taking her to a nearby apartment complex to a friend’s apartment, the officers still did nothing to assist. They testified that they rendered no assistance to her to go to the apartment. Indeed, they did not even ask her for the address of the apartment where she was heading.
10. Incredibly, the only “assistance” the officers provided was, “We assisted her [the client and her father] to the jail that night. That’s the only assistance we gave her.”
11. Both marked patrol cars pulled up behind the client’s vehicle, with their lights on – on both patrol cars. The blue lights were readily visible to the client, as she stood outside her father’s vehicle. The officers knew it was his vehicle. All three officers were in uniform and were armed. The police cars, with their blue lights on, and the officers, stayed in that position the entire time during this encounter, up to and including the arrest of the client.
12. The officers took positions around the vehicle, with Officer F. standing at the rear of the vehicle, and Sgt. L. and Officer H. stationed next to the client, on the passenger side of the vehicle.
13. The officers commenced their encounter with the client and her father at 00:36 (that is, 36 minutes after midnight), on June 23, and the client was arrested at 1:00 a.m. that evening – 24 minutes later. The [unlawful] search of the client’s purse/bag took “less than a minute”, after which approximately two minutes were spent listening to her denial of knowledge of the cocaine. Those were the two events that immediately preceded the arrest. Thus, the client and her father had been detained during this investigatory stop for at least 21 of the 24 minutes – prior to her arrest.
14. As noted, almost immediately after arriving at the scene, the officers learned that the client was there, with her 82 year old father, the driver of the vehicle, who was taking her to a nearby apartment complex to a friend’s apartment. Thus, the officers immediately knew “the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad.”
15. The officers could see that her 82 year old father was handicapped, and was hunched over. They knew he did not look like a drug dealer, and had no belief he was drug dealing, or helping his daughter do so. The officers also knew that the vehicle was registered to her father.
16. Importantly, prior to discovering the cocaine (approximately three minutes prior to the arrest) the officers didn’t have any reasonable suspicion or probable cause to believe that they had committed, were committing or were about to commit a crime.
17. Given the complete absence of any evidence of criminality, the lead (ranking) officer was asked, why then, did he continue his lengthy investigation of the client, to which he responded “Because I wanted to.” When pressed as to why he wanted to, he simply repeated his same answer. When asked for the second time why he wanted to, he stated, “I have no idea. I just felt like it.” His subjective desires do not meet constitutional standards. Instead, they highlight the unlawful nature of this improper dealing with two Florida citizens.
18. Notwithstanding the fact that the officers had no evidence whatsoever that the client and/or her 82 year old father were committing a crime, or had committed a crime, or were going to commit a crime, the officers continued to interrogate them. They obtained the identity of the client and her father, including obtaining identification from the client. After the initial discussion with the client, and obtaining her identity, Sgt. L. ran a criminal history check on her, back in his patrol vehicle, while leaving Officer H. stationed beside her, and Officer F. stationed at the back of the vehicle.
19. The background check by Sgt. L., in his patrol vehicle “revealed multiple drug arrests.” However, Sgt. L. could not recall what any of the arrests were for, their dates, or their disposition. Moreover, the officers agreed, merely because someone had prior drug arrests, would not constitute reasonable suspicion to detain them.
20. Although claiming to have received consent from the client, immediately prior to the search of the purse/bag, the consent of her father – who was the driver and owner of the vehicle – was not obtained. This lack of consent of the driver and owner of the vehicle was disregarded, notwithstanding the bag (container) was located in his vehicle, on the passenger floorboard.
21. The Arrest and Booking Report asserts the client was “very intoxicated,” and described other indicia of her other normal faculties being impaired. Indeed, she was “pretty much out of it.” She was so impaired that the officers would not have let her drive. Nor would they believe she would be competent to take a written driver’s test, while in her condition. Indeed, her condition was such that, if she was their own sister, and was in that condition, they would not let her sign an important document like a deed or a will.

MEMORANDUM OF LAW

A. Florida Stop and Frisk Law

1. Florida has enacted a statute that expressly governs the conduct of these officers. It is the “Florida Stop and Frisk Law,” codified at F.S. §901.151. Specifically, at subparagraph (2), that statute provides as follows:
Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person has committed, was committing, or was about to commit a criminal offense.
(emphasis added).
2. As noted above, and as confirmed by the sworn testimony and the Arrest and Booking Report itself, these officers had absolutely no “circumstances” that provided reasonable suspicion that the client and her father had committed, were committing, or were about to commit “a violation of the criminal laws.” There was a complete absence of any information to lead “the officer to believe” they were committing any criminal activity.
3. Thus, clearly, the officers violated the Stop and Frisk law, by their initial detention of the client and her father. Even if that were not so, the only thing they could have done would have been to establish the “identity” of the persons detained, and “the circumstances surrounding the “person’s presence abroad” (that is, why they were waiting in or beside the Tahoe) – which reasonably led the officers to believe that the person “has committed, was committing, or was about to commit a criminal defense.” In this case, the officers promptly obtained the identity of the client and her father, and knew he was driving her to a friend’s apartment. That should have ended their inquiry. There was nothing illegal, or even remotely suspicious, about the conduct of the client and her father.
4. The Florida Stop and Frisk law has its own suppression provision, set forth in subparagraph (6), which provides as follows:
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).
5. As noted above, there was not “compliance” with subsection (2). Thus, aside from any other deficiencies in the manner in which the officers acquired the subsequent evidence, from the outset, having violated the Florida Stop and Frisk law, all later-acquired evidence must be suppressed.

B. Unlawful Investigatory Stop

1. The “Crime Free Multi-Housing Unit” had as their sole role investigating crime. That is precisely why two marked patrol cars, with blue lights, and three armed officers, descended on the client and her 82 year old father. They were there for the sole purpose of investigating crime. They knew immediately they had no reasonable suspicion whatsoever that the client and/or her father were engaged in criminal activity – yet they continued an inappropriate investigative detention for some 24 minutes.
2. Officer H. said it best, in acknowledging (as all the officers did), that they did not provide any assistance whatsoever. Instead, the only “assistance” provided was assisting the client by “taking her to jail.”
3. The officers have claimed that they were not “detaining” the client and her 82 year old crippled father. That claim is demonstrably false, and defies not only common police procedures but common sense. No reasonable person, let alone a handicapped lady and her handicapped 82 year old father, would believe they were free to go, when two marked vehicles with their blue lights flashing, and three armed officers confronted them, circled their vehicle, and detained them while running background checks and interrogating them. Indeed, as noted, the officers stationed themselves around the vehicle in a fashion that clearly reflected they were guarding the vehicle, and its occupants, to prevent them from departing. At no time did the officers tell the client or her father they were free to go. Officer H. conceded he did not expect them to drive off, with the blue lights on.
4. So widely recognized is the law enforcement power and authority of blue lights on a law enforcement vehicle that other drivers must honor the “Move Over” law whenever a law enforcement vehicle is even parked on the side of the road, with its “displayed blue or red lights.” F.S. §316.16(1)(a). Indeed, if the police vehicle is approaching a moving vehicle, the citizen driver must “yield the right-of-way … and shall immediately proceed to a position parallel to, and as close as reasonable to the closest edge of the curb of the roadway … and shall stop and remain in position until the authorized emergency vehicle has passed, unless otherwise directed by any law enforcement officer.” Id. (emphasis added). The client and her 82 year old father dutifully obeyed this Florida Statute, and awaited directions from the officers.
5. Consistent with the long-standing position of officers and prosecutors that blue lights constitute a command to stop, the State has been on record in prior recent cases, asserting the proposition that a police officer’s blue lights constituted an order to stop, and, indeed, encouraged the trial court to conclude that the “illuminating of police lights” constituted an “order to stop” by a police officer. The same applies here, with even greater strength.
6. The officers’ display of authority, and restriction on the client’s freedom of movement, demonstrates this was not a mere consensual encounter between citizen and officer, but an investigatory stop that invokes Fourth Amendment protections against unreasonable searches and seizures. A person is seized, if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart. Brye v. State, 927 So. 2d 78, 82 (Fla. 1st DCA 2006) (quoting Popple v. State, 626 So. 2d 185, 188 (Fla. 1993)).
7. As noted, the officers admittedly had absolutely no basis for any investigative detention of the client or her father. Moreover, even if they did, any such concern was dispelled immediately upon their arrival, when they ascertained the innocent circumstances surrounding the presence of the client and her father in the area.
8. “In order to stop and detain a person for investigation, a police officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.” J.P. v. State, 855 So. 2d 1262, 1265 (Fla. 4th DCA 2003); see also Terry v. Ohio, 392 U.S. 1, 27 (1968), Cooks v. State, 28 So. 3d 147 (Fla. 1st DCA 2010); Here, as confirmed by the officers’ testimony, no such reasonable suspicion existed.
9. The requirement for reasonable, objective justification [for detention] governs all seizures, including those that involve only a brief detention, short of traditional arrest. G.M. v. State, 19 So. 3d 973 (Fla. 2009).
10. The facts in G.M. supra, are very similar to the present case. In G.M.,, officers activated their emergency lights, entered a park, and positioned their police vehicle behind two parked cars, around which people were congregating. Id. at 979. The officers were not in uniform, but exhibited badges and possessed handguns. Id. at 980. One officer approached the vehicle and the other positioned himself to observe the other individuals. Id. However, in G.M., unlike in this case, the suspect, who was a passenger in the vehicle, did not see the emergency lights, and was not aware of the police presence, until the officer was directly outside his window. Id. at 976. The Florida Supreme Court held that the lower court correctly determined, under the totality of the circumstances, that the suspect was not detained for Fourth Amendment purposes, because he was not even aware of the police presence. Id.
11. Importantly, the Florida Supreme Court stated that, under the same circumstances, if the suspect had been aware of the blue lights and the police presence (as was the case here), then the suspect would have been seized. Id. In that regard, the court stated the following:
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. 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 the lawful instructions.

Id. at 980 (emphasis added).
12. Therefore, pursuant to the Florida Supreme Court ruling in G.M. supra, when the officers parked behind the client and her father, with their blue lights activated, approached them, and interrogated them, they were seized for Fourth Amendment purposes, and not free to walk or drive away.
13. Similarly, in Brooks v. State, 745 So. 2d 1113 (Fla. 1st DCA), an officer approached a vehicle which was stopped on the side of the road to change drivers. As in this case, the officer admitted he did not have reasonable suspicion of criminal activity at the time he approached the vehicle, and claimed the encounter was not an investigatory stop. Id. The State argued that it was a consensual police-citizen encounter and the appellants were free to leave at any time. Id.
14. The First District disagreed, and stated that a reasonable person under the circumstances would not have believed he or she was free to leave and terminate the encounter. Id. at 1114. The court cited § 316.2397, Fla. Stat. (1997), which allowed only police vehicles to have blue flashing lights, and § 316.126, Fla. Stat. (1997), which required all vehicles to pull to the closest edge of the roadway upon the approach of a vehicle displaying blue or red lights, to demonstrate the laws requiring citizens to stop, when police activate red or blue flashing lights. Id.
15. The court in Brooks held:
Based on the show of authority by Bates’ use of the flashing blue lights, the encounter constituted an investigatory stop. Bates admitted he did not have the requisite reasonable suspicion of criminal activity, he lacked authority under section 901.151, Florida Statutes (1997), to stop appellants. Therefore, the evidence seized as a result of the unlawful detention should have been suppressed (emphasis added).

Brooks at 1114 (emphasis added).
16. Finally, in Armatage v. State, 954 So. 2d 669, 670 (Fla. 1st DCA 2007), the First District again stated that, when the arresting officer pulled up behind the defendant’s truck, and activated the red and blue lights on his patrol car, the defendant was detained. The court held that, because the arresting officer lacked reasonable suspicion of criminal activity at the time of the stop, the trial court should have granted the motion to suppress. Id. The facts in this case are identical, and thus, the evidence should be suppressed.

C. Consent – Product of Unlawful Detention

1. When the State relies on a defendant’s consent to justify the lawfulness of a search, the State has the burden to prove that consent was freely and voluntarily given. See Bumper v. N.C., 391 U.S. 543, 548 (1968). Here, the client’s consent to search was “a product of the unlawful police activity.”
2. Any consent to search following an unconstitutional stop is presumptively tainted by the illegal stop, and hence invalid. Norman v. State, 379 So. 2d 643 (Fla. 1980); Robinson v. State, 388 So. 2d 286 (Fla.1st DCA 1989).
3. In Brye v. State, 927 So. 2d 78, 82 (Fla. 1st DCA 2006), the First DCA reversed the trial court order denying a motion to suppress evidence discovered after an officer unlawfully detained the defendant during an investigatory stop, not founded on a reasonable suspicion of criminal activity. The appellate court held that the consent to search was involuntary, because the interaction was an illegal investigatory stop. See id. at 86-87. The reasoning relied on the fact that “[u]nder the applicable objective standard, a reasonable person would not have felt that he or she was free to leave,” Id. at 82.
4. Similarly, in Perko v. State, 874 So. 2d 666 (Fla. 4th DCA 2004), consent to search was obtained after the defendant had been unlawfully seized. The court held that, under these circumstances, the search was unlawful, and the fruits of the search must be suppressed. Id.

D. Lack of Competent Consent

1. Of course, as noted above, based on the unlawful detention, no consent can properly be considered, whether it was a knowing and competent consent or not. However, as demonstrated above, the consent in this case was obtained from a person who the officers, by their sworn testimony, was not competent to provide consent.
2. Law enforcement officers may obtain consent to search, but they must establish the consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). An individual’s ignorance or knowledge of his right to refuse consent may serve as one factor in the court’s consideration of whether consent was given voluntarily. Id. at 227.
3. When evaluating the admissibility of confessions, the courts have held that, in some circumstances, the influence of drugs or narcotics can be so severe as to render the confession involuntary. See Reddish v. State, 167 So. 2d 858 (Fla. 1964); Harrison v. State, 562 So. 2d 827 (Fla. 2d DCA 1990).
4. Here, the client’s consent was not “knowing and voluntary” – due to the level of intoxication attested to by the officers.
5. As noted above, the officers testified that the client was so impaired that they would not allow her to drive, or expect her to be able to pass a written driver’s test, or to be competent to sign a deed or a will. If she was not competent to drive, take a simple driver’s test, or make a determination on something as important as a deed or a will, a fortiori, she was not competent to waive important constitutional rights.

E. Consent from Father – Failed to Obtain

1. Although claiming to have received consent from the client, immediately prior to the search of the purse/bag, the consent of her father (who was the driver and owner of the vehicle), to extract a container from his vehicle and search it, was not obtained.
WHEREFORE, the client moves the Court to enter an order suppressing any and all evidence seized and/or obtained from her, and/or the vehicle in which she was a passenger, including the officers’ observations, evidence recovered from her person and/or the vehicle she occupied, and any and all written and/or oral statements made by her.