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Motion to Suppress Evidence — United States v. Fernando Falcon (S.D. Fla., Dkt. 35)

Summary

This is Fernando Falcon's Motion to Suppress Evidence, filed by counsel in No. 1:07-cr-20034, seeking to suppress evidence seized from his vehicle on October 23, 2006. It states that agents conducting surveillance at a residence followed him to another residence, where an agent pointed a service weapon at his head, he was ordered to the ground and handcuffed, and his vehicle was searched without consent. It states that a shoebox in a bag contained 4 bricks of suspected cocaine weighing approximately 4.65 kilograms. The motion argues that he was under arrest when handcuffed, that there was no probable cause to arrest him or to search the vehicle, and that the government bears the burden of proving an exception to the warrant requirement.

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Cite this document

“Motion to Suppress Evidence — United States v. Fernando Falcon (S.D. Fla., Dkt. 35).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-07-cr-20034-dkt-35-s-d-fla-2c43933bb8/, SHA-256 026ef83a790c70d369bb4402f1b55785e4e6bf8cebf861b5121134133e244c94.

Full text

Case 1:07-cr-20034-DMM Document 35 Entered on FLSD Docket 02/28/2007 Page 1 of 9




                       UNITED STATES DISTRICT COURT
                       SOUTHERN DISTRICT OF FLORIDA

  UNITED STATES OF AMERICA,
               Plaintiff,
                                        Case No. 1:07-cr-20034-DMM
  v.

  FERNANDO FALCON,
                 Defendant.
  _______________________________/


                        MOTION TO SUPPRESS EVIDENCE

        COMES NOW the defendant, FERNANDO FALCON, by and through

  undersigned counsel and moves this Court to suppress the evidence seized herein from

  the defendant=s vehicle on October 23, 2006 and in support thereof says,

                         FACTS RELEVANT TO MOTION

        On October 23, 2006, surveillance was being conducted by federal agents at the

  residence located at 4135 SW 62nd Court, Miami, FL, 33155. At approximately 7:10

  pm, a Chevrolet Tahoe, registered to the defendant, arrived at the residence under

  surveillance. At approximately 8:26 pm, the defendant was observed exiting the

  residence. Agents observed the defendant place an unknown item in the front

  passenger side seat. The defendant drove away from the residence under surveillance.

        Surveillance units followed the defendant to a residence located at 12958 SW

  91st Place, Miami, FL., 33176. The defendant parked his vehicle in a parking space

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  designated for his mother’s condo, his residence. The defendant exited the Chevrolet

  Tahoe and was walking away from the vehicle when he was approached by one (1)

  agent. The agent had his service weapon pointed at the head of the defendant. The

  agent ordered him to the ground face down with legs spread and hands to his back.

  On the agent’s radio he called in “backup” within moments an FHP officer handcuffed

  the defendant behind his back and placed him in the back of his patrol car under arrest.

  The defendant=s vehicle was searched without consent. The agents located and

  retrieved a white plastic bag containing a shoebox. The shoebox was opened and 4

  bricks of suspected cocaine was found int the box. The 4 bricks of suspected cocaine

  weighted approximately 4.65 kilograms. A drug detecting canine was brought to the

  scene subsequent to the package being located in the Chevrolet Tahoe. The canine

  was not utilized in the automobile search, but rather in a later search of the residence.

  The search of the house did not produce any contraband.

                                          ISSUES

        1. Whether the defendant was under arrest at the time he was handcuffed and

  placed on the ground outside his vehicle?

        2. Whether there was probable cause to arrest the defendant after he had exited

  his vehicle and was walking away from the vehicle?

        3. Whether the warrantless non-consensual search of the defendant=s vehicle


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  was based upon probable cause?

                             MEMORANDUM OF LAW

        The defendant submits that the answer to each of the issues is a Anegative@.

  These issues are governed by the following legal principles.

        In United States v. Jackson, 415 F.3d 88 (U.S.App.DC Cir 2005), the court

  opined the legal principles guiding courts in their determination as to whether a

  warrantless search is an exception to the Fourth Amendment=s prohibition against

  searches not supported by a warrant.

                     The Fourth Amendment provides, "The right of the

              people to be secure in their ... effects, against unreasonable

              searches and seizures, shall not be violated." In most

              instances, searches must be supported by a warrant

              obtainable upon a showing of probable cause. See, e.g.,

              California v. Carney, 471 U.S. 386, 390-91, 105 S.Ct.

              2066, 85 L.Ed.2d 406 (1985); Mincey v. Arizona, 437 U.S.

              385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). "It

              remains a cardinal principle that searches conducted outside

              the judicial process, without prior approval by judge or

              magistrate, are per se unreasonable under the Fourth


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             Amendment--subject only to a few specifically established

             and well-delineated exceptions." California v. Acevedo, 500

             U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)

             (internal quotation marks omitted).

                   Probable     cause    is       synonymous   with   "fair

             probability," Gates, 462 U.S. at 238, 103 S.Ct. 2317, and it

             is an objective standard requiring an analysis of the totality

             of the circumstances and the facts known to the officers at

             the time of the search, Ornelas, 517 U.S. at 695-96, 116

             S.Ct. 1657; Gates, 462 U.S. at 230-31, 103 S.Ct. 2317; cf.

             United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744,

             151 L.Ed.2d 740 (2002). "Subjective intentions play no role

             in ordinary, probable-cause Fourth Amendment analysis,"

             Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769,

             135 L.Ed.2d 89 (1996), and the officers' "actual motives for

             conducting the search [are] not relevant as long as [their]

             actions were objectively reasonable." United States v.

             (Rocky Lee) Brown, 334 F.3d 1161, 1172 n. 8

             (D.C.Cir.2003) (quoting United States v. Christian, 187


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               F.3d 663, 670 (D.C.Cir.1999)) (internal quotation marks

               omitted); see also Devenpeck v. Alford, --- U.S. ----, ---- -

               ----, 125 S.Ct. 588, 593-94, 160 L.Ed.2d 537 (2004);

               United States v. Holmes, 385 F.3d 786, 790 (D.C.Cir.2004).

               The court has recognized that "the discovery of contraband

               in the passenger compartment of a car is a factor that

               strongly supports the lawfulness of a trunk search." (Rocky

               Lee) Brown, 334 F.3d at 1173. And so long as probable

               cause exists to search the trunk, police officers may also

               search any of the trunk's contents "that may conceal the

               object of the search." United States v. Ross, 456 U.S. 798,

               825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see also

               Wyoming v. Houghton, 526 U.S. 295, 300-02, 119 S.Ct.

               1297, 143 L.Ed.2d 408 (1999).

  415 F.3d at 91-92.

        In United States v. Hammock, 860 F.2d 390 (11th Cir. 1998), the court

  discussed certain circumstances that indicate an arrest:

                       In determining when appellant was arrested, we ask

               at what point, "in view of all of the circumstances


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             surrounding the incident, a reasonable person would have

             believed that he was not free to leave." United States v.

             Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64

             L.Ed.2d 497 (1980) (Stewart & Rehnquist, JJ. concurring);

             see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75

             L.Ed.2d 229 (1983) (majority of Justices adopting

             Mendenhall reasonable person standard). In applying this

             standard, the courts have pointed to certain circumstances

             that indicate an arrest. These circumstances include the

             blocking of an individual's path or the impeding of his

             progress; the retention of a ticket or piece of identification;

             an officer's statement that the individual is the subject of an

             investigation, or that a truly innocent person would

             cooperate with the law enforcement officer; the display of

             weapons; the number of officers present and their

             demeanor; the length of the detention; and the extent to

             which the officers physically restrained the individual. See,

             e.g., Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877-78;

             United States v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B


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              1982) (en banc).

  860 F.2d at 393.

        Also the courts have noted that the conduct of law enforcement can go beyond
  the perimeters of reasonable suspicion and effectively constitute an arrest:

                     When actions by the police exceed the bounds of

              reasonable suspicion, the seizure becomes an arrest and

              must be justified by probable cause. Florida v. Royer, 460

              U.S. 491, 502-03, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229

              (1991) (plurality opinion). The Supreme Court has declined

              to establish a bright line rule to distinguish when a Terry

              stop becomes an arrest, leaving courts to decide the issue

              on a case by case basis. See, United States v. Sharpe, 470

              U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605

              (1985). Factors to be considered include the restraints

              placed on a person's liberty or freedom of movement, the

              length of the detention, use of weapons or bodily force. See,

              Royer, supra; and United States v. Seelye, 815 F.2d 48 (8th

              Cir.1987) (listing factors). After making any warrantless

              arrest, the police must promptly secure a judicial

              determination of probable cause. Gerstein v. Pugh, 420

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               U.S. 103, 113-14, 95 S.Ct. 854, 862- 63, 43 L.Ed.2d 54

               (1975), see, County of Riverside v. McLaughlin, 500 U.S.

               44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

  United States v. Wall, 807 F. Supp. 1271, 1275 (ED Mich. 1992),

        The defendant contends that the actions of the agent in approaching him with

  his weapon drawn, ordering him to the ground, handcuffing him in the back and

  placing him inside a police vehicle constituted an arrest. Further, the defendant

  alleges that the objective facts of a) his arrival at a residence under surveillance, b)

  remaining in that residence for approximately one hour and 16 minutes, and c) exiting

  that residence with an unknown package in his hand did not rise to the level of

  probable cause to allow a legal search of the defendant=s vehicle. The defendant

  submits that these factors would not have been sufficient to secure a search warrant

  from a magistrate, much less constitute grounds to justify a warrantless search.

        The defendant also contends that the facts herein do not establish circumstances

  that qualify as an exception to the Fourth Amendment prohibition against warrantless

  searches. It is the burden of the government to prove an exception to the warrant

  requirement. United States v. McGough, 412 F.3d 1232 (11th Cir. 2005). Citing

  United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002) and United States v.

  Jeffers, 72 S.Ct. 93 (1951). The facts as observed by the agents did not indicate any


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  danger to the agents nor indicate that contraband was at risk of being destroyed nor

  indicate any other Aexigent@ circumstances which would justify a warrantless search of

  the defendant=s vehicle.

                             Respectfully submitted,
                             LAW OFFICES OF STEPHEN H. ROSEN, P.A.
                             1221 Brickell Avenue, Suite 1020
                             Miami, Florida 33131
                             Ph: (305) 358-6789


                             s/Stephen H. Rosen
                             STEPHEN H. ROSEN
                             Counsel for Defendant
                             Florida Bar No. 154144
                             E-MAIL: ATTNYROSEN@AOL.COM

                             CERTIFICATE OF SERVICE

        I HEREBY CERTIFY that on February 28, 2007, I electronically filed the
  foregoing document with the Clerk of the Court using CM/ECF.

                             s/Stephen H. Rosen
                             STEPHEN H. ROSEN




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