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What is a Motion to Suppress Physical Evidence?

A Motion to Suppress is a motion filed with the court in an effort to have specific evidence thrown out of court due to a constitutional violation.  A Motion to Suppress can be used to suppress statements made by a defendant or to have physical evidence thrown out of court.  Through a motion to suppress, the defense will argue that the evidence that they are seeking to suppress was obtained in violation of the defendant’s constitutional rights.

In the case where the defense is seeking to have physical evidence (i.e. drugs, weapons or etc.) excluded, the defense would argue that the physical evidence was obtained in violation of the defendant’s Fourth Amendment right to be free of illegal searches and seizures.

Below is a Motion to Suppress that was filed in a Drug Trafficking case by Mr. Sobel. The name of the defendant has been redacted for privacy.

 

MOTION TO SUPPRESS PHYSICAL EVIDENCE

AND STATEMENTS OF DEFENDANT

     The Defendant, XXXXXXXXXXX, by and through the undersigned attorney, pursuant to Rules 3.190, Florida Rules of Criminal Procedure, moves this Honorable Court to suppress as evidence in this cause the following:

  1. Any physical evidence seized as a result of the illegal search and arrest, specifically Hydrocodone.

  2. Any statements made by Mr. XXXXXXXXXXXXX obtained by law enforcement during the course of the illegal search and subsequent arrest of the defendant.

As grounds for this motion, the Defendant would assert the following general statement of facts:

  1. On November 27, 2012 the defendant XXXXXXXXXXXXX along with his girlfriend were observed by Fort Lauderdale Police Detectives XXXX and XXXXXXX to have entered a known narcotics location.

  2. Prior to this incident, Mr. XXXXXXXXXXXXX was not a target of any narcotics investigation.

  3. The Detectives indicate that Mr. XXXXXXXXXXXXX exited the residence after a short period of time.

  4. Detective XXXXXX and Detective XXXXXXX, believing that entering and exiting a residence after a short period of time was indicative of a drug transaction, conducted a consensual encounter with Mr. XXXXXXXXXXXXX.

  5. During the consensual encounter, Detective XXXXXXX asked Mr. XXXXXXXXXXXXX for permission to conduct a pat-down search.

  6. It is alleged that during the pat-down search, Detective XXXXXX felt what he believed from knowledge, training and experience to be pills wrapped in a napkin.

  7. Detective XXXXXX then went into Mr. XXXXXXXXXXXXX’s pocket and removed the napkin.

  8. Further examination revealed that there were ten, yellow in color oval pills.

  9. After confirming with poison control that the pills were Hydrocodone, and then confirming that Mr. XXXXXXXXXXXXX did not have a valid prescription, Mr. XXXXXXXXXXXXX was arrested and charged with trafficking in Hydrocodone between 4 and 14 grams.

LEGAL GROUNDS

The aforementioned evidence was obtained by law enforcement officers in violation of the Defendant’s rights guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 and article I, section 12 of the Florida Constitution, in that:

The plain feel doctrine is similar to the plain view doctrine.  If an officer is in a place where he has a right to be and he becomes aware of contraband through his sense of sight or touch, the officer may seize the contraband.  If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure is justified by the same practical considerations that inhere in the plain view context.  Regardless of whether the officer detects the contraband by sight or by touch, the Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.  Jordan v. State, 664 So. 2d 272 (Fla. 5th DCA 1995)
If the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., if its incriminating character is not immediately apparent—the plain-view doctrine cannot justify its seizure.  Smith v. State, 95 So. 3d 966 (Fla. 1st DCA 2012)  Florida courts consistently have held that when closer examination of an item observed in plain view is necessary to confirm the incriminating nature of the contraband, its incriminating nature is not considered “immediately apparent.” See Caplan v. State, 531 So. 2d 88 (Fla. 1988); Carr v. State, 353 So. 2d 958 (Fla. 2d DCA 1978).
The facts of the present case are similar to those in Smith v. State, 95 So. 3d 966 (Fla. 1st DCA 2012).  In that case, a sheriff’s deputy found Mr. Smith lying on the ground in the rain, seemingly passed out.  The deputy approached defendant, asked for identification, and accompanied defendant, who appeared to the deputy to have been intoxicated, as he went voluntarily to retrieve his wallet and license from his nearby truck.  Mr. Smith showed his license to the deputy.  It appeared to the deputy that defendant, while returning his wallet to driver’s seat, tried to obscure a plastic bag containing several pills which were lying on the seat.  The deputy told defendant to step aside, removed the bag of pills and, holding the bag, asked defendant what the pills were.  Defendant answered that they were Lortab pills, and then volunteered that he had just purchased them.  The court reasoned that the incriminating nature of the pills was not immediately apparent to the deputy such that he had probable cause to seize the bag under the plain-view doctrine.  The court looked at the fact that the deputy did not testify to any markings on the pills, or lack thereof, which helped him identify what they were; he observed only that they were larger than a certain brand of breath mint and larger than aspirin tablets and that it is not uncommon, in the deputy’s experience, for individuals to carry their legally prescribed medication in plastic bags.  The court held that the seizure of the pills was invalid for lack of probable cause.

Again in Sawyer v. State, 842 So. 2d 310 (Fla. 5th DCA  2003) the defendant was stopped for failing to dim his headlights. The police officer saw one white pill on the console, in plain view. The officer reached into the car and seized the pill, whereupon he saw a design on it that was indicative of the drug “Ecstasy.” Defendant was charged with possession of the drug and filed a motion to suppress. The court noted that the officer had testified that he was unaware what type of pill it was until he seized it and was able to get a closer look at it.  Accordingly, there was no probable cause found that justified the seizure, as it could have been an aspirin or other legal substance.  There was nothing in the officer’s testimony that indicated that he believed prior to the seizure that the item was contraband.  Under the plain view doctrine, the pill could not have been seized because its incriminating nature was not considered “immediately apparent” where closer examination of the pill was necessary.

Although, the aforementioned cases differ in the fact that it is a plain view rather than a plain feel, the main overarching issues in the readily identifiable incriminating character of the pills.  In Smith and Sawyer the courts reasoned that the possession of pills is not illegal and that the officer could not have determined that they were illegal pills when they were seized.  In both cases, the courts looked to the facts that closer examination of the pills was necessary to determine what they were.  The same is true in this matter.

It is the incriminating nature, or lack thereof, of the pills that is the issue in this matter.  It is not illegal in and of itself to possess pills but rather the illegality come when the person does not have a valid prescription for the pills.  Hydrocodone pills, and all pills, are different from cocaine and cannabis where it is the object that is illegal rather than the lack of the prescription.  In this case, the detectives could not have known the illegal nature of the pills until they were seized and examined for their markings.  This point is further illustrated by the fact that the color and marking of the pills, which was ultimately relayed to poison control in an effort to determine what the pills were, was not able to be identified until after they were removed from Mr. XXXXXXXXXXXXX’s pocket and then examined.

Feeling pills in someone’s pocket does not automatically mean that they are illegal pills.  The pills could have been vitamins, aspirin or a valid prescription.  At the time Detective XXXXX seized the pills all that he possible could have known was that they were pills.  It was not until after the pills were seized and then examined that the incriminating nature of the pills became possible.  Finally, it was not until the detectives made a determination that Mr. XXXXXXXXXXXXX did not have a valid prescription that it was readily apparent that the pills were illegal.  Thus since the incriminating nature of the pills themselves was not readily apparent until after they were removed from Mr. XXXXXXXXXXXXX’s pocket, the search was unfounded and illegal.

           WHEREFORE, it is respectfully requested that this Honorable court suppress as evidence in this matter the aforementioned evidence collected by the police based upon the foregoing grounds.