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Success with Motions to Suppress Evidence

The Fourth Amendment of the United States Constitution protects citizens’ rights to be free from unreasonable searches and seizures. The courts have held that, if the police conduct an illegal stop or seizure, any evidence they obtain as a result of that illegal activity must be suppressed or thrown out, including any evidence they are lead to by the illegally seized evidence. This is often referred to as the Exclusionary Rule.

DUI – No Independent Recollection – Motion to Suppress Granted

At Fallgatter Catlin & Varon, P.A., we have been successful in suppressing evidence for two clients, under very different circumstances. The first case involved a client charged with Driving Under the Influence (DUI), who was stopped for weaving within his lane and for speeding.

When the officer testified regarding his stop of the driver, he admitted he had no independent memory of the stop. He also testified that, even reviewing the Arrest and Booking Report did not refresh his recollection of the stop.

Lisa Varon filed a Motion to Suppress Evidence, and argued that, pursuant to KEA v. State, 807 So.2d 410, 411 (Fla. 3d DCA 2001), if a witness has no present recollection or memory of the events, the witness cannot testify to those events. Furthermore, if the police officer’s memory is not refreshed by his review of the Arrest and Booking Report, his testimony cannot form the basis to establish a lawful stop.

The court agreed that, without an independent recollection of the events, the officer could not testify to the events surrounding the stop of the driver. The court held that all of the evidence obtained by the officer as a result of the stop, including the officer’s observations, the driver’s performance on the Field Sobriety Exercises, and the results of the breathalyzer test, must be suppressed. Thus, as a result of the court granting the Motion to Suppress, and application of the Exclusionary Rule, all evidence needed to prove a DUI was suppressed by the court, thus preventing our client’s prosecution.

DWLS – Unlawful Stop for Window Tint Violation – Motion to Suppress Granted

In another case, a client was stopped by a Florida Highway Trooper, allegedly for illegal window tint. The client’s license was suspended at the time, so, in addition to a civil citation for illegal window tint, he was charged with the criminal offense of diving with a suspended license.

Curtis Fallgatter filed a Motion to Suppress, arguing that the window tint stop was illegal, and that all of the evidence obtained as a result of the illegal stop, including the identity of the driver, should be suppressed.

Section 316.2953, Fla. Stat., authorizes sun screening material on a vehicle’s side windows, if the transmittance of light is of at least 28% – which, by application of the 3% “tolerance” provisions of F.S. §316.2955(2), makes a transmittance of at least 25% lawful. The Trooper asserted in his tint citation the side windows only transmitted 6% of the light. However, an actual test of the side windows, by a 30-year owner of a window tint business, established the true transmittal percentage was 25%.

Additionally, a photograph, taken though both front side windows, clearly displayed a lady on the other side, with very clear details of her clothing, as well as a magazine she was holding, on which the headlines of the magazine were readily readable. Both the Trooper and the defense expert testified that, if the tint was actually only 6% on those windows, one would likely not be able to see anything.

Thus, the assertion by the Trooper of 6% transmittance was off by a dramatic and exceptionally large factor of four. This 6% assertion was so far off the mark, that it could not constitute a “reasonable” mistake.

During the hearing on the Motion to Suppress, Mr. Fallgatter cited the recent case of United States v. Longoria, 2016 WL 1642654 (NDFla. 2016). In Longoria, an FHP trooper stopped a vehicle, asserting he thought the rear side windows were too dark. The lawful percentage for rear side windows under Florida’s tint law is 15%. However, the windows actually tested at 28%. Thus, the officer was off by 13%. The Longoria court held that, by being that far off, the FHP trooper could not have reasonably suspected the windows were illegally tinted.

The Longoria court further held that, if this significant mistake was accepted, it “would basically make every stop of a passenger vehicle with tinted windows lawful,” and “would eviscerate the Fourth Amendment.” Id. Mr. Fallgatter argued the same must be said here, with even greater strength.

The Court granted Mr. Fallgatter’s Motion to Suppress, and held that, as a result of the unlawful stop, and in accordance with the Exclusionary Rule, the identity of the driver must be suppressed, pursuant to State v. Perkins, 760 So.2d 85, 88 (Fla. 2000). Because the officer and the State would not know the identity of the driver, but for the unlawful stop, suppression of the DWLS citation was also granted, and the case was dismissed.