IN THE COUNTY COURT OF THE 16 TH JUDICIAL CIRCUIT FOR THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY MOTION TO SUPPRESS STATEMENTS

Transcription

1 IN THE COUNTY COURT OF THE 16 TH JUDICIAL CIRCUIT FOR THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY STATE OF FLORIDA, Plaintiff, CASE NO: v., Defendant. / MOTION TO SUPPRESS STATEMENTS COMES NOW, the Defendant, [CLIENT NAME], by and through the undersigned attorney pursuant to Fla.R.Crim.P (I), and respectfully moves this Honorable Court to suppress evidence of statements and admissions allegedly made by the Defendant, as well as evidence that is the fruit of those statements and admissions, and in support of this motion states as follows: A. The Defendant, [CLIENT NAME], is charged with Driving Under the Influence, a crime that was alleged to have occurred on [DATE OF OFFENSE] at [TIME OF OFFENSE]. B. STATEMENTS TO BE SUPPRESSED: Statements or admissions made by the Defendant to law enforcement agents at the time of the Defendant s investigatory detention and/or arrest in this case on [DATE OF OFFENSE] at [OFFENSE LOCATION] at [TIME OF OFFENSE]. C. GROUNDS FOR SUPPRESSION: The statements were made and taken in violation of the Defendant s Miranda rights; the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Miranda v. Arizona, 384 U.S.436 (1960); Art. I 9 of the Florida Constitution; and Traylor v. State, 596 So.2d 957 (Fla. 1992). The statements were product of words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are

2 reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Arizona v. Mauro, 481 U.S. 520 (1987). The statements were made after the Defendant indicated a desire to terminate questioning or consult an attorney and then after which the law enforcement agents reinitiated contact with the Defendant and resumed questioning concerning this case. See, Edwards v. Arizona, 451 U.S. 477 (1981). The statements were fruits of an illegal detention of the Defendant in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, 9 and 12 of the Florida Constitution. The statements were taken in violation of the Defendant s Due Process rights guaranteed him by the Fourteenth Amendment to the United States Constitution and Article I 9 of the Florida Constitution. See, Doyle v. Ohio, 96 S.Ct (1986); Colorado v. Connelly, 479 U.S. 157 (1987); Traylor v. State, 596 So.2d 957, 961 (Fla. 1992). The statements were taken in violation of the Defendant s right to counsel guaranteed him by the Sixth Amendments to the United States Constitution and by Article I, 9 of the Florida Constitution. See, Massiah v. United States, 377 U.S. 201 (1964); Brewer v. Williams, 430 U.S. 387 (1977). D. FACTUAL BASIS: E. MEMORANDUM OF LAW: The right to remain silent and privilege against self-incrimination is offered more protection under the Florida constitution than is permitted under the federal constitution. Hoggins v. State, 689 So. 2d 383, 386 (Fla. 4 th DCA 1997), review granted, 697 So. 2d 512 (Fla. 1997); Charton v. State, 716 So. 2d 803, 805 & n. 3 (Fla. 4 th DCA 1998); See also, Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992).. [T]he Self-Incrimination Clause of Article I, Section 9, Florida Constitution, requires that prior to custodial interrogation in Florida suspects must be told that they have a right to remain silent, that anything they say will be used against them in court, that they have a right to a lawyer s help [the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation], and that if they cannot pay for a lawyer one will be appointed to help them. Allred v. State, 622 So. 2d 984, 987 (Fla. 1993), citing Traylor v. State, 596 So. 2d 957, 966 & n. 13 (Fla. 1992).

3 Interrogation takes place for Section 9 purposes when a person is subjected to express question, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response. Traylor v. State, 596 So. 2d 957, 966 & n. 17 (Fla. 1992). Under Section 9, if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin, or if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a lawyer is present. Once a suspect has requested the help of a lawyer, no state agent can reinitiate interrogation on any offense throughout the period of custody unless the lawyer is present, although the suspect is free to volunteer a statement to police on his or her own initiative at any time on any subject in the absence of counsel. Traylor v. State, 596 So. 2d 957, 966 & n. 14 (Fla. 1992). A waiver of a suspect s constitutional rights must be voluntary, knowing and intelligent, and, where reasonably practical, prudence suggests it should be in writing. Traylor v. State, 596 So. 2d 957, 966 & n. 15 (Fla. 1992). CUSTODY FOR MIRANDA PURPOSES Roadside questioning of a motorist detained pursuant to a routine traffic stop is not normally considered custodial interrogation for purposes of Miranda. However if a motorist is subjected to treatment that renders him in custody for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. Berkemer v. McCarty, 468 U.S. 420 (1984). The United States Supreme Court left to the trial courts the determination whether a detained motorist thereafter is subjected to treatment that renders him in custody... entitling him to the protections afforded by Miranda. State v. Burns, 661 So. 2d 842, 844 (Fla. 5th DCA 1995), citing Berkemer at 440. Persistent questioning of a suspect, as opposed to modest questioning, also may create a custodial setting. See, Berkemer, 468 U.S. at n. 36 (1984); Pennsylvania v. Bruder, 488 U.S. 9 (1988). Burns, 661 So. 2d at 844. Under the Florida Constitution, A person is in custody for Section 9 purposes if a reasonable person placed in the same position would believe that his or her freedom of

4 action was curtailed to a degree associated with actual arrest. Traylor v. State, 596 So. 2d 957, 966 & n. 16 (Fla. 1992). In Burns, supra, the Defendant was held not to be in custody for Miranda purposes where [t]he stop was short (11 minutes), occurred in a public area, only one officer was present, and the tests were simple. Burns at 844. In State v. Evans, 692 So. 2d 305 (Fla. 4th DCA 1997), the factual circumstances surrounding the stop departed from those enumerated in Berkemer and Burns. The Fourth District Court of Appeals distinguished Burns, stating: Here, appellee had already been told not to leave the area. Deputy Lahiff [who apparently arrived after the first officer had already begun (and perhaps completed) an accident investigation] took the appellee over to a nearby gas station, told him he was conducting a DUI investigation, and asked him question, such as whether he had had anything to drink, whether he had been injured, etc., as well as administering roadside testing to him. We think that this amounted to custodial interrogation which required Miranda warnings... Evans at 307. Evans identifies several areas where the Defendant is in custody for Miranda purposes: (1) being instructed not to leave, (2) a second officer arriving at the scene specifically to conduct a DUI investigation, (3) a direct statement by that officer that he was conducting a DUI investigation, (4) movement of the Defendant from the scene of traffic stop, and (5) questioning that was apparently perceived as more than a modest amount. Other factors that determine whether a suspect is in custody for Miranda purposes are: (1) the length of the detention, (2) the number of police officers involved in the investigation, (3) whether the defendant is subjected to extra restraints beyond mere detention (e.g. handcuffs), and (4) whether the language used by the officer in requesting the test would lead a reasonable person to believe he or she was about to be arrested. See, State v. Fowler, 26 Fla. L. Weekly D807 (Fla. 2d DCA Mar. 21, 2001); State v. Whelan, 728 So. 2d 807 (Fla. 3d DCA 1999); Burns, supra; Traylor, supra. STATEMENTS DURING FIELD SOBRIETY EXERCISES In Whelan, supra, the trial court suppressed the recitation of the alphabet by the Defendant during field sobriety exercises as there was no Miranda warning. The Third District Court of Appeals upheld the ruling: A request that an in custody motorist

5 count, or recite the alphabet, calls for testimonial evidence for Fifth Amendment purposes, and requires Miranda warnings. State v. Whelan, 728 So. 2d 807, (Fla. 3d DCA 1999), citing Allred v. State, 622 So. 2d 984, (Fla. 1993)(defendant incorrectly recited the alphabet and dropped the prefix 1000 before each number) and Pennsylvania v. Muniz, 496 U.S.582, (1990). In Muniz, the defendant s Fifth Amendment privilege against self-incrimination was violated by admitting at trial an audiotape of his response. Allred v. State, 622 So. 2d 984, 986 & n. 5 (Fla. 1993), citing Pennsylvania v. Muniz, 496 U.S.582, 589 (1990). His response was videotaped; the audio portion to the sixth-birthday question was held inadmissible. Allred, 622 So. 2d at 988, n. 5 (emphasis added). BOOKING RECORDS STATEMENTS: The questions directed at the Defendant were designed to lead to an incriminating response and were outside the scope of routine booking questions, e.g.: Name, address, height, weight, eye color, date of birth, and current age. Allred, at 988, n.9. See, United States v. Hinckley, 672 F.2d 115, 123 (D.C. Cir 1982)(booking interview that covered a wide range of biographical data bore none of the indicia of a clerical operation. ). Questions during booking records interviews may subject themselves to an Innis standard of inquiry. An incorrect statement in response to sixth-birthday type question, is inadmissible under Muniz, supra. Muniz holds that compelling an arrested drunkdriving suspect to disclose the date of his sixth birthday is a testimonial response. Because Muniz was not read his Miranda rights before he was asked the sixth-birthday question, his Fifth Amendment privilege against self-incrimination was violated by admitting at trial an audiotape of his response. Allred v. State, 622 So. 2d 984, 986 & n. 5 (Fla. 1993) Statements during custodial interrogation are inadmissible to the extent that they disclose[] information beyond possible slurred speech; it is content (incorrect recitation) of the speech that is being introduced, rather than merely the manner (slurring) of speech. Allred, at 987.

6 Muniz s response to the sixth-birthday question, by contrast, was incriminating not just because of the delivery, but also because the content of his answer supported the inference that his mental state was confused. Allred, at 987 & n. 7. COMMENT ON THE RIGHT TO REMAIN SILENT The Defendant s alleged refusal to take a breath test is inadmissible for the further reason that any evidence of the refusal would constitute an impermissible comment on the Defendant s rights to remain silent and to the assistance of an attorney. In general, courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence. It is improper to comment on a defendant s post-arrest silence, whether or not such silence was induced by Miranda warnings. Comments on a defendant s right to silence are not harmless error where evidence against the defendant is not clearly conclusive. Smith v. State, 681 So.2d 894, 895 (4th DCA 1996)(citations omitted). Any comment that is fairly susceptible of being interpreted by the jury as a comment on these rights is inadmissible. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Under the circumstances of this case, the Defendant reasonably believed that he had the right to remain silent and consult with an attorney. Therefore, any testimony concerning the Defendant s request for an attorney, and any characterization of the request as a refusal to submit to a breath test, is fairly susceptible of being construed as a comment on the rights to post-arrest silence and to the assistance of counsel. Such evidence and comments should therefore be excluded. Smith v. State, supra; State v. Smith, 573 So.2d 306, 317 (Fla.1990); Doyle v. Ohio, supra; Bernier v. State, 547 So.2d 306 (4th DCA 1989)(Presentation to jury of portions of defendant's statement to police that he did not want to answer any more questions constituted impermissible comment on defendant's Fifth Amendment right to remain silent); J.D. v. State, 553 So.2d 1317 (3d DCA 1989) OTHER GROUNDS TO BE ARGUED ORE TENUS. WHEREFORE, the Defendant respectfully requests this Honorable Court to suppress all statements described in this paragraph ( B ) above.

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the Office of the State Attorney, Key West, Florida, this day of, 20. Respectfully submitted, - Samuel J. Kaufman, Esq Josephine Street, Suite 1 Key West, Florida Tel. (305) Fax (305) Florida Bar No.: