Articles Posted in Motion to Suppress & Dismiss

scales.jpgIt’s time for me to stroke you, dear reader. Congratulations for exposing yourself to important justice issues, issues that corporate news networks either do not have the time, or intelligence, to report. And, if you need further stroking, simply donate to any popular Hollywood cause–the accompanying “gala” will involve an orgy of “important” folks telling each other how important they are. Yes, the view from the back of a limo is rarely accurate, but often entertaining (especially upon exiting with a short skirt–don’t they see all those cameras out there?). Anyway.

There has been a long standing battle between those in favor of justice, and those who favor procedure. To understand this fight, we’ll use the real life case of Woodbury v. State. 730 So. 2d 354 (Fla. 5th DCA 1999) Woodbury was convicted of a felony drug offense. His criminal defense attorney filed a one page Motion to Suppress, arguing an illegal search of the vehicle in which Woodbury was a passenger. The problem with the defense attorney’s argument was that he left out one important argument; an argument that would have won Woodbury’s case. Ouch. Well, isn’t that why we have appeals courts? Shouldn’t an appeal restore justice? Isn’t that the job of appellate judges?

Here’s the problem. The appellate court may only review arguments made by the initial defense attorney. If the first attorney didn’t make the proper argument, the appeals court will not consider an additional argument–even though they know a costly mistake was made. That’s what happened to Woodbury. The appeals court acknowledged that Woodbury’s search was completely unconstitutional. As such, Woodbury was wrongfully convicted of a felony drug offense. The appellate court’s opinion points out what the defense attorney did wrong on his motion: “the core question here should have been whether a dog alert on a vehicle, in and of itself, authorizes the arrest and search of all the occupants of that vehicle. The answer is no. . . . Unfortunately, the motion to suppress failed to clearly state this reason as a basis for suppression . . . [n]or did counsel ever present argument to the trial court that the search of Woodbury’s person based only on the dog alert on the vehicle was improper.” Id. at 356 [emphasis added]
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police iraq.jpgIt’s never fun being confronted by government officials wearing guns and shiny badges. This is especially true in places like Iran, or North Korea. But, it’s scary here too. Lucky for us, we have “rights”. We can halt the questions, and get an attorney to come and help us, before we say something stupid. The police must warn us that we’re about to say something stupid, and the Miranda Warnings go something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Today, we’re going to focus on “You have the right to an attorney.” Actually, you don’t always have the right to an attorney. If you’re not in police custody, or the police are not conducting an interrogation, there’s no need to be warned of your rights. This is true even when being arrested, the police do not have to read Miranda warnings unless, of course, they plan on questioning the arrested person. So, here’s the deal. Plain and simple. If a citizen asks for an attorney during police questioning–the officer must stop the interrogation until an attorney is present. Sure, rights are nice to have, and they look good on paper, but what happens when the police ignore this right?

When the police do something they shouldn’t do, we criminal defense attorneys file various motions, such as a Motion to Dismiss, a Motion to Suppress, or a Motion in Limine. These motions ask the judge to remedy the wrong created by the police misconduct. Some police misconduct rises to the level of dismissal (entrapment, for example), but other police misconduct warrants that the court exclude whatever evidence was obtained as a result of the misconduct. A Motion to Suppress asks for just such a remedy, moving the court to exclude whatever was said or discovered as a result of the wrongdoing. Our real life case of the day involves wrongdoing on the part of law enforcement, and on the part of the criminal defense attorney arguing a motion to suppress.

In Laurito v. State, the defendant was convicted of aggravated battery with a firearm, two counts of aggravated assault with a firearm, and shooting into an occupied vehicle. 120 So. 3d 203 (Fla. 5th DCA 2013) The case was fairly simple. Shots were fired from a car containing three individuals. The police couldn’t figure out who fired the shots, until a detective got Laurito to confess. Of course, it took some fancy 90’s cop show dialogue to get the confession, as the detective called Laurito “a little girl”, a “stupid bitch”, and “said he would be ‘proud’ of him if he admitted shooting the ‘motherf*****'”. Id at 205. I’m pretty sure this dialogue was stolen from the Beastie Boys video for Sabotage (my favorite music video, ever), but I can’t be sure until I watch the video for the thousandth time. Anyway, it wasn’t the cheesy lines that got the detective in trouble. No, what offended our Constitution was the fact that before confessing, Laurito asked the detective, “Can I make a phone call so I can get a lawyer?”
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bear.jpgIf I had a dollar for every time someone called to tell me their rights were violated, I wouldn’t have to work; I could just keep answering the phone and make a dollar here, dollar there. Part of my work as a criminal defense attorney is to challenge the constitutionality of a government search. Its one of my favorite things to do (boring, huh?). What we’re going to examine today are the very foundations of a challenge to a government search.

The Fourth Amendment is all about privacy rights. A government search will violate the Fourth Amendment prohibition against unreasonable searches only if a citizen can first prove that he has a reasonable expectation of privacy in the thing or place searched. When defending a criminal case, it is not enough to just stand at the podium and ask the court to suppress all the state’s evidence because my clients rights were violated. We “ask” the court to do things through motions. If we’re alleging an illegal search and seizure, the written form of this request is known as a Motion to Suppress.

The problem is, filing a Motion to Suppress is only the beginning. Practice Tip: there are different theories on how detailed a motion to suppress should be. Many defense attorneys file bare bones motions, so that the state is not tipped off as to what specific legal issue might be argued at the hearing. I disagree with that approach. You want to provide the court, and the state, with the bulk of your analysis in the motion so that everyone can prepare to argue the finer points. This is especially true if law enforcement has already articulated their position at depositions. Without depositions, I can see how a detailed motion might “influence” a witness to say things on the stand that will hurt the motion. Of course, this is why we have depositions, to lock the witnesses into their testimony.

Anyway, a Motion to Suppress hearing is conducted with live witnesses, and it is the defendant’s burden to start calling witnesses. No matter how unconstitutional a government search may appear to be on its face, it is still the defendant’s burden to first establish that there’s a privacy interest at stake. The very core of the Fourth Amendment is privacy rights. So, to win a Motion to Suppress, it must be established (typically by the Accused) that the defendant had a privacy interest in the item searched and seized. Alright, to see how this issue plays out, let’s examine Henderson v. State, 38 Fla. L. Weekly D 1786 (Fla. 2d DCA 2013).
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gun held.jpg Here’s a few basic principles of any criminal justice system. Juries are typically the fact finders. Judges are typically referees, calling balls and strikes throughout the process. But, what happens when the facts of a case are so weak that there is no need to have a jury trial? Well, we defense attorneys ask the judge to step into the fray, and make factual determination that will cause the case to be dismissed. Prosecutors don’t want judges dismissing weak cases, because they know that many defendants cannot afford the risk of going to trial, even on weak facts. Technically, when a criminal defense attorney poses this question to a judge, it is in the form of a Motion to Dismiss. This motion tells the court that the facts of the case do not constitute the crime charged, so why waste time tax payer money? We’re going to take a look one such waste of money, found in O.S. V. State, 120 So. 3d 130 (Fla. 3d DCA 2013).

O.S. was convicted of possession of a concealed weapon (brass knuckles) in his vehicle. Now, several issues may be examined in a concealed weapons case, issues regarding the stop of the vehicle, issues regarding constructive possession, or issues regarding the definition of a weapon. But the issue for today involves what constitutes “concealed”. And, who gets to make a determination as to what is concealed–the judge, or the jury?

When O.S. was pulled over for a bad tag light (yes, a classic bogus stop) the officer asked him to step out of the car. Once the door opened, the officer “could observe the brass knuckles sitting in the pocket by the driver’s door.” Id. An important question on any concealed weapons charge involves the degree to which the weapon was recognized by the officer. In this case, the defense attorney’s cross examination noted that the officer recognized the weapon “right away”. Id. O.S. also admitted to the officer that he had the brass knuckles in the car.
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police car.jpgOur criminal justice system punishes two parties–the government, and citizens (defendants). The government gets punished when it does something illegal in order to obtain evidence. Theoretically, such unconstitutional things don’t happen, but we live in an imperfect world, and in order to deter the government from illegal searches and seizures we criminal defense lawyers get to “suppress” illegally obtained evidence.

Today we’re going to discuss a Motion to Suppress in a fleeing and attempting to elude case. As you probably already know, motions ask the judge to do something. In a Motion to Suppress, a criminal defense attorney asks the court to suppress a piece of evidence. Sometimes, the effect of suppressing a key piece of evidence will be that the whole case must be dismissed. Other times, suppression simply makes life more difficult for the prosecutor. Either way, I’m happy.

In State v. Kirer, the defendant/driver wasn’t breaking any traffic laws, but he failed to stop when the cop behind him turned on his lights, sirens, and P.A. system. 120 So. 3d 60 (Fla. 4th DCA 2013). Of course, once the P.A. system comes on, it should be no surprise that you’re about to encounter one pissed off cop. The second nasty result of an officer wielding his P.A. system is that you tend to receive several more tickets than you deserve. Getting back to Kirer’s case, he failed to stop in a timely manner, but the statute does not tell us how much time we have to stop. Is two minutes of failing to pull over a felony fleeing charge? Three minutes? Four? The problem here is “timing” and physics–time is relative, scientifically speaking (if it even exists at all, it is now called “spacetime”). Sure, I’m not qualified to go any further with this concept, but you get the point. Fleeing and attempting to elude charges are often based upon the mere opinion of a frustrated cop screaming through the P.A. for you to pull over. That being said, “cop time” is always very short. If you don’t pull over instantly, law enforcement will assume you are fleeing and attempting to elude them. Many of us have seen the Rodney King beat down, YouTube is full of bad cop behavior, so it seems reasonable to pull our vehicle into a safe, well lit location, right?. Is there any law that you MUST pull over on the side of a dangerous highway with cars routinely exceeding the 70 mph limit? Well, yes, there’s a fleeing charge–and it’s a felony.
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pill bottle.jpgWhen it comes to prescription pill arrests, there seems to be little to no investigation conducted by police. I know that’s shocking to you, but somebody has to tell it like it is. But, do the police conduct an Interrogation? You bet. “Interrogation” is the new substitute for “investigation”. Basically, if you’re caught with prescription meds–without a pill bottle–you’re probably going to jail. I know of numerous cases here in Orlando in which the citizen had a prescription, but the police never did an investigation via local pharmacies in order to uncover the truth. The truth just isn’t that important these days. Fortunately, you have defense attorneys around who know how to find the truth, and use that knowledge to get a case dismissed.

When someone hires me to defend a felony charge of possession of oxycodone, hydrocodone, Xanax–or whatever–the first question asked is whether or not the client has ever had a prescription for the pill they were caught with, because there is such thing as a prescription defense in the State of Florida. Most cops think there is some sort of law out there that requires citizens to throw out their pills after a certain number of years. There is no such law. And, the police really have no excuse for not conducting an investigation on these matters. Pharmacy records are not “medical records” for confidentiality purposes, so the police have easy access to pharmacy records (they can just ask, no subpoena necessary), but are often too lazy to confirm or deny a suspect’s story. It’s easier to simply take the citizen to jail. But hey, who am I to tell Crime Incorporated that they should cut down on the number of arrests made by simply verifying a suspect’s claim that they have a prescription for the pill in their possession? As you know, the world is not a perfect place. We defense attorney’s can’t stop an arrest, but we can attempt to prevent a conviction.

If I had a dollar for every time I’m asked “Can’t we just file a motion to dismiss this case and make it all go away?” Sometimes, the answer is yes, we can. In a prescription pill case, motions to dismiss are common (technically called a “(c)4” motion, after the subsection of the criminal rules which permits a court to dismiss charges when the sworn facts do not allege a criminal act). The problem with (c)4 motions is that the defense and the state must agree to the “material facts”. When the two parties agree to the material facts, the (c)4 motion forces the court to dismiss the charges. Of course, the question is, will the prosecutor to agree to the facts? If they don’t agree, they file something called a “traverse”. A “traverse” will sink a motion to dismiss, as a legal traverse lets the court know that there is some disagreement as to the “material facts”. Let me show you how this plays out in real life. (and, you can check out another article I wrote on this topic, creatively titled “Motions to Dismiss“)
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guns.jpgSo, we can all agree that America is the Land of the Free, but just how free are we? The NSA, and other three-letter government entities, are monitoring our every move. Ok, I admit that Big Brother is an easy target these days, but to make matters worse, even local law enforcement seems to be watching us with a similar intensity. Downtown Orlando has video cameras everywhere. Some folks would argue that, if the cops follow you long enough, they’ll come up with something. That’s just what happened in the recent case of Pamphile v. State, 110 So. 3d 517 (Fla. 4th DCA 2013).

Pamphile was doing something perfectly legal–shopping at a gun show in West Palm Beach. Nothing wrong with that. But, as you know, certain legal activities draw more law enforcement attention than others. It would make you sick to see how much of your tax payer dollars is spent monitoring perfectly legal activity. In this case, there was a task force of tax payer dollars spent on agents from the Bureau of Alcohol Tobacco and Firearms (ATF), members of the Palm Beach County Sheriff’s Office, and West Palm Beach Police officers. These agents were working undercover at the gun show, and attempting to stop “straw purchases” of guns–a transaction in which a legal gun buyer purchases a gun for someone not permitted to have a gun.

When Pamphile entered the gun show with another individual, they looked at a few things together, and then split up. This caused the undercover agents some concern that they may have a straw purchase on their hands. The agents watched the defendant on and off for two hours. During this time, Pamphile purchased an AK-47, and openly carried it to his vehicle in the parking lot. So, any hopes of getting an arrest for carrying a concealed firearm were shot down at that point. The agents also overheard Pamphile claim he was bringing the gun to New York (it “can” be illegal to transport a weapon from one state to another, but this is a story for another day). Once Pamphile drove off with his friend, the agents had his vehicle stopped about a half a mile down the road. When he went to get his driver’s license, a fraudulent California driver’s license slipped out. Ops.

After tons of taxpayer dollars on this operation, don’t you feel safer knowing that these three government agencies were able to make one felony arrest for unauthorized possession of a driver’s license? But Pamphile lawyered up, and like any good criminal defense lawyer, Pamphile’s attorney filed a motion to suppress, arguing that the cops had no reason to stop him–as they observed nothing illegal. The trial judge disagreed, finding that the agents saw “him commit a violation of the law by carrying a gun openly out in the parking lot.” Id. At 519. The Defendant appealed, and this appellate decision makes for a good discussion of a typical motion to suppress based upon the lack of reasonable suspicion to stop a defendant.
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judge wigs.jpgAs a criminal defense attorney, I file lots of motions. The reasons for filing motions vary, but the basic principle here is that I’m asking the court to do something for me. Say, for example, I want a witness to not give his opinion on a certain topic, I file what’s called a Motion in Limine (limiting the testimony of that witness). Or, let’s say I want to prevent the state from introducing certain items into evidence, I file a Motion to Suppress that evidence. Or, should there be a reason to dismiss the charges, I will file a Motion to Dismiss. And so on, and so on.

There are many different types of Motions to Dismiss. Without going into the boring details, it’s important to know that some Motions to Dismiss (called (c)(4) motions, technically) are filed based upon certain facts which are sworn to by a witness. If the state does not agree with the sworn facts of the Motion to Dismiss, they file what is called a “traverse”. If the “traverse” is legally sufficient (we’ll get to what that means in a moment), the state wins and the motion is denied. This type of motion basically says, judge, we all agree as to what happen in this case, but what happen does not constitute a crime. Technically speaking, the function of a (c)(4) motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981) citing State v. Davis, 243 So.2d 587 (Fla.1971). “The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute”. State v. Pasko, 815 So. 2d 680, 681 (Fla. 2nd DCA 2002).

For example, take a “wrong place at the wrong time” situation, like a shoplifting or theft charge, in which multiple people are arrested even though only one person actually stole an item. An overly aggressive loss prevention officer decides to have everyone in the group detained, and the whole group is eventually arrested. A “(c)(4)” motion to dismiss in such a case essentially says, hey, we all agree the defendant was hanging out with the wrong crowd, but the defendant played no part in the theft, his friend did all the stealing, the defendant was just standing next to him while he was stealing, but there’s no evidence the defendant knew his friend was going to do such. Being in close proximity to a crime is not guilt of such, so judge, please dismiss the theft charges. With just those facts, the motion to dismiss would be granted. But, the state could traverse such a motion by claiming that, sure, the defendant didn’t steal anything, but he was seen looking around, and as such, we believe he was a lookout, so this motion to dismiss should be denied based upon the fact that the defense and state do not agree as to the defendant’s involvement in this case.
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