DEFENDANT, by and through his undersigned counsel and pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure, moves this Honorable Court to suppress certain evidence in this matter.
EVIDENCE TO BE SUPPRESSED
Any and all evidence obtained in connection with the search of Defendant’s person on or about September 1, 2011. This would include any statements made by Defendant, any and all items of alleged drug paraphernalia seized from Defendant, and any and all testimony regarding the search of Defendant.
GROUNDS FOR SUPPRESSION
- The evidence was obtained only as a result of an illegal search and seizure, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 12 of the Constitution of the State of Florida.
- The evidence was unlawfully seized because the Defendant did not give consent to the search and the officer(s) did not have the requisite grounds for a search of Defendant.
- The evidence is the “tainted fruit of the poisonous tree,” having been obtained only as a result of illegal law enforcement activity, to-wit: an illegal search and seizure.
On or about September 1, 2011, officers from the Melbourne Police Department, acting as part of “Operation Shady Tree,” executed a search warrant for the property located at 812 Hopkins Street in Melbourne, Brevard County, Florida. The property described in the warrant was an undeveloped lot with a large oak tree, which was located in the center of the premises. There was no residence on the property, no fencing, and several dirt driveways had been worn into the ground leading to the center of the property. The property was accessible to visitors, neighbors, and passersby by vehicle or foot from adjacent Hopkins Street to the south, Race Street to the east, and Line Street to the north. The property was regularly used by the public as a shortcut to reach adjacent roads.
The warrant for Operation Shady Tree was issued at the request of Detective John Smith of the Melbourne Police Department. In his Search Warrant Affidavit, Detective Smith alleged that multiple individuals had, at various times during the previous four months, engaged in drug-related activities on the property. He alleged that controlled substances were being sold, kept, delivered, and possessed at that location. The Affidavit did not allege that every person found on the premises would be violating the law, did not allege that every person found on the premises had, at one time, violated the law, and did not state that Detective Smith or his informants had ever seen Defendant purchase drugs or engage in other unlawful activity. On September 1, 2011, Detective Smith submitted his Affidavit to the Honorable Judge David Silverman.
Judge Silverman issued a search warrant on the same day and authorized police to enter and search “the aforesaid location . . . including all vehicles located within the curtilage or any persons on the premises or curtilage reasonably believed to be engaged in or connected with [the] illegal activity . . .” (emphasis added).
In executing the search warrant, Melbourne Police detained and searched any individual who was present on the property. According to M.A. Reynolds, the commanding officer of the Melbourne Police Department SWAT team, there were approximately forty people in the immediate area of 812 Hopkins Street at the time police executed the warrant. At least eighteen individuals were arrested. Although the subject property was an open lot accessible to the general public and regularly used by the public to access adjacent roads, there appeared to be no individualized criteria used to assess probable cause or reasonable suspicion with respect to any person subject to search or arrest.
Defendant was present when police executed the search warrant around 4:00 pm on September 1, 2011. On the basis of Defendant’s presence alone, Defendant was detained and searched by Officer John Goode of the Melbourne Police Department. Officer Goode alleges that, in searching Defendant’s person, he located a crack pipe and push rod in Defendant’s right front pocket. Officer Goode conducted a field test on the alleged pipe and Defendant was charged with Possession or Use of Drug Paraphernalia (M1).
The evidence seized in the present case must be suppressed because Officer Goode exceeded the scope of the warrant by conducting a search of Defendant without a reasonable, articulable cause. The validity of a search pursuant to a warrant is determined on the basis of the authority granted by the warrant itself. Stokes v. State, 604 So.2d 836, 838 (Fla. 1st DCA 1992). A search warrant which authorizes a search of all persons present on the premises is valid where the evidence tendered to the issuing magistrate supports the conclusion that it is probable anyone in the described premises is involved in the criminal activity in such a way as to have evidence of the criminal activity on his or her person. Stokes, 604 So.2d at 838 (citing Bergeron v. State, 583 So.2d 790, 791 (Fla. 2d DCA 1991)); Samuel v. State, 222 So.2d 3, 5 (Fla.1969). Florida courts have consistently described such an instrument as a “search-all-persons-present” warrant. See D.M.D. v. State, 798 So.2d 851, 853 (Fla. 1st DCA 2001); Bergeron v. State, 583 So.2d 790, 791 (Fla. 2d DCA 1991); Szady v. State, 745 So.2d 1041, 1041 (Fla. 2d DCA 1999).
Where the language of “search-all-persons-present” warrant limits the search authority of law enforcement to those individuals “reasonably believed” to be engaged in or connected with illegal activity, officers conducting a search must, at the very least, have reasonable and articulable cause to believe a suspect is involved in criminal activity. Stokes, 604 So.2d at 839; D.M.D., 798 So.2d at 853; Bergeron, 583 So.2d at 791; Julian v. State, 528 So.2d 427, 429 (Fla. 2d DCA 1988). Mere presence cannot supply the reasonable connection to the illegal activity. Bergeron, 583 So.2d at 791 (citing Julian v. State, 528 So. 2d 427 (Fla. 2d DCA 1988)); See also Stokes, 604 So.2d at 838 (citing Samuel, 222 So.2d at 5).
In Julian v. State, 528 So.2d 427 (Fla. 2d DCA 1988), a warrant authorized officers “to enter and search the afore-described place [a private dwelling] and premises together with the yard and curtilage thereof . . . and any person thereon reasonably believed to be connected with said illegal activity.” Id. at 428 (emphasis supplied). Despite the warrant’s expressed precedent condition for a search of persons discovered on the subject premises, officers proceeded to search virtually every person found on the premises. Id. The defendant and several other persons were found standing in the yard. Id. at 429. Neither the defendant nor any other person in the yard was observed acting in a suspicious manner. Id. Officers nonetheless conducted a search of the defendant’s person and found eight grams of cocaine. Id. The officer who testified at the suppression hearing failed to articulate any reason to believe that Defendant, or any other person found within the curtilage of the dwelling, was armed or connected with the suspected illegal activity. Id. On the foregoing facts, the court found the search exceeded the authority granted by the warrant, and the evidence derived from the search should have been suppressed. Id. at 430.
In the instant case, Officer Goode lacked any reasonable, articulable cause for conducting a search of Defendant’s person. When police entered the vacant lot at 812 Hopkins Street, they proceeded to stop and search virtually every person on the basis of physical presence alone. Officer XXXX did not recognize Defendant and had no reason to believe that Defendant had committed, was committing, or was about to commit any offense under state or federal law. Defendant made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to Officer Goode or any other police officer. In short, Officer Goode and other law enforcement officers knew nothing in particular about Defendant, except that Defendant was present on a vacant lot with at least forty other individuals at the time of the execution of the warrant. Even under a “search-all-persons-present” warrant, this practice was unlawful.
The above-described search of Defendant also cannot be justified as a Terry search. To conduct a frisk or pat down search of an individual, police officers must have a reasonable belief that the suspect is armed and presently dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1 (1968). Under the facts of the present case, Officer Goode had no basis for suspecting that Defendant was armed and presently dangerous. The lighting was sufficient for police to fully observe the individuals who happened to be present on the vacant property. Defendant, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. Thus, Officer Goode and other police officers lacked reasonable suspicion to conduct a frisk or pat down search of Defendant.
Even assuming, arguendo, that Officer Goode had a reasonable belief that Defendant was armed and dangerous, he exceeded the scope of any legitimate Terry frisk once he patted down Defendant and found nothing on Defendant’s person indicative of a weapon. Where a frisk or pat down occurs under the guise of Terry, the officer’s protective search must be limited to a search for weapons. Adams v. Williams, 407 U.S. 143, 146 (1972). That is, the officer may not squeeze, slide, or otherwise manipulate the object felt as part of the frisk or pat down, once it is clear that the object could not reasonably be a weapon. State v. Burns, 698 So.2d 1282, 1285 (Fla. 5th DCA 1997). Unless the presence of contraband or other illegal object on Defendant’s person is immediately apparent from a Terry frisk, an officer has no authority to reach into a defendant’s pockets, absent a showing of probable cause. Thomas v. State, 644 So.2d 597, 598-99 (Fla. 5th DCA 1994).
WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order suppressing the evidence identified above.