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Motion To Suppress – Search and Bad Stop

MOTION TO SUPPRESS

COMES NOW the Defendant, by and through his undersigned attorney, pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure, and respectfully moves this Court to suppress any and all evidence seized and/or obtained from the Defendant, including his identity, the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and his refusal to take the breathalyzer test, and in support thereof, states as follows:
FACTS
1. The Defendant was arrested on September 1, for Driving Under the Influence (“DUI”).
2. Officer D. D. C. stopped the Defendant, allegedly for speeding and for failing to maintain a single lane and straddling the center yellow line.
3. Officer D. M. D. responded to the scene, and made contact with the Defendant, who was still seated in his vehicle.
4. After the stop and detention, the officers learned the identity of the Defendant, and determined that his license was suspended.
5. Officer D. detained the Defendant for a DUI investigation, and instructed him to step out of his vehicle.
6. Officer D. questioned the Defendant about whether he had been drinking alcohol. The Defendant allegedly admitted to having two drinks over the course of the evening.
7. The Defendant explained his medical condition, including the fact that he had recently had open heart surgery, and described the medication he was taking for that condition.
8. Officer D. requested that the Defendant perform Field Sobriety Exercises (FSE), and the Defendant agreed.
9. After completing his investigation, Officer D. arrested the Defendant for DUI and DWLS.

MEMORANDUM OF LAW

B. Unlawful Stop
Section 901.151(2) Fla. Stat. (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. Officer C. did not have a reasonable suspicion of criminal activity, a prerequisite to stop and detain the Defendant, and the evidence obtained as a result of the illegal stop and detention should be suppressed.
The stop by police of an occupied automobile for a traffic violation constitutes a “seizure” within the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to justify a warrantless seizure, the government must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). To justify a warrantless stop an officer must have an articulable, reasonable suspicion that a violation of the law has occurred. Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998). In the instant case, the stop of the Defendant for exceeding the speed limit and failure to obey a traffic control device was not justified, and the evidence, including the identity of the Defendant obtained as a result of the stop should be suppressed.
Evidence obtained as a result of an illegal stop must be excluded from both a trial and a probation revocation hearing. See State v. Scarlett, 800 So. 2d 220 (Fla. 2001). Evidence of the Defendant’s identity should be suppressed and therefore, cannot be used as evidence to prove he was driving on a suspended license at a trial or at a probation revocation hearing. See Garrett v. State, 946 So. 2d 1211 (Fla. 2d DCA 2006); State v. Perkins, 760 So. 2d 85 (Fla. 2000).

C. No Reasonable Suspicion for Detention
The odor of alcohol alone (let alone merely a “moderate” odor), does not provide reasonable cause that a person is driving under the influence. Kliphouse v. State, 771 So. 2d 16, 22 (Fla. 4th DCA 2000). The odor of alcohol does not provide reasonable suspicion for the officer to initiate a DUI investigation. Buttner v. State, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994). The odor, without more, was not an indication that Defendant was driving under the influence.
The officers’ observations did not provide reasonable suspicion that the Defendant “had committed, was committing, or was about to commit” a crime, as required by § 901.151, Florida’s Stop and Frisk Law. Therefore, the detention of the Defendant for a DUI investigation was illegal, and the results of that detention should be suppressed.
“Asking a person to exit a vehicle in order to talk to him (not as a safety measure during a legitimate traffic stop) is a show of authority that goes beyond a consensual encounter.” Gilchrist v. State, 757 So.2d 582, 583 (Fla. 1st DCA 2000). In this case, even if the court finds that the traffic stop was legal, the officer’s directive that the Defendant exit his vehicle and submit to FSE was not based on reasonable suspicion of DUI, or a concern for safety, and was an unlawful detention. Furthermore, because the officers did not have a reasonable suspicion of criminal activity, the Defendant should not have been detained for longer than was necessary for the officers to issue the traffic citations. A traffic stop must last no longer than the time it takes to write the traffic citation. See Cresswell v. State, 564 So.2d 480, 482 (Fla. 1990); Eldridge v. State, 817 So.2d 884, 885 (Fla. 5th DCA 2002). In order to justify a longer detention, an officer must have a reasonable suspicion of criminal activity. Id. Because the officers did not have a reasonable suspicion of criminal activity, the continued detention of the Defendant for a DUI investigation was unlawful.
Based on the cases cited above, the officers should not have detained the defendant longer than was necessary to write a traffic citation because they did not have a reasonable suspicion of criminal activity.

D. No Probable Cause to Arrest
All warrantless seizures are presumptively unreasonable, and invalid. See Katz v. United States, 389 U.S. 347 (1967). Thus, where a subject is seized without a warrant, the burden rests upon the state to produce evidence that the detaining officer had probable cause to arrest. Terry v. Ohio, 392 U.S. 1 (1968). A law enforcement officer may arrest a person without a warrant, either immediately or in fresh pursuit, when there is probable cause to believe that a violation of chapter 316 has been committed. Section 901.15(5), Fla. Stat.
Despite his health condition, the Defendant cooperated with the DUI investigation, and agreed to perform Field Sobriety Exercises (FSE). His performance did not indicate impairment. According to the Field Sobriety Report prepared by Officer D., On the Walk and Turn exercise the Defendant had no problem keeping his balance or making the turn, and he did not stop walking. He stepped off the line only one time, and missed his heal only twice. On the One Leg Stand exercise, the officer noted zero (0) clues which indicated impairment. On the Rhomberg Balance exercise, the Defendant did not use his arms for balance and he kept his eyes closed, as instructed.
The officer reported the Defendant’s clothes were orderly, and he was polite and cooperative during the investigation. Officer D. claimed that his face was flushed, but the Breath Test Operator contradicted this, stating his face appeared normal.
The totality of the investigation did not provide probable cause for the officer to determine the Defendant was driving under the influence to the extent his normal faculties were impaired, and thus, he did not have probable cause to arrest the Defendant for DUI.
“Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” State v, Kliphouse, 771 So.2d 16, 22 (Fla. 2000). In the absence of probable cause, the arrest was unlawful, and any evidence recovered thereafter must be suppressed.

E. Conclusion
The officers did not have a reasonable suspicion of criminal activity or probable cause to justify stopping or detaining the Defendant for a DUI investigation, nor did they have probable cause to arrest him for DUI. Therefore, any and all evidence seized and/or obtained from the Defendant, including his identity, the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and his refusal to take the breathalyzer test should be suppressed. WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the stop, detention, and arrest.