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/
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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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Case 1:07-cr-20034-DMM Document 35 Entered on FLSD Docket 02/28/2007 Page 5 of 9
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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