DEFENDANT, by and through undersigned counsel and pursuant to Rules 3.190(h) and 3.190(i), Florida Rules of Criminal Procedure, hereby moves this Honorable Court to suppress certain evidence and admissions in above-styled cause.


Any and all statements and tangible papers or objects obtained from or made by Defendant in connection with a pedestrian stop conducted on May 31, 2010.


  1. The evidence was obtained only as a result of an illegal stop, 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.
  2. The evidence was unlawfully seized because Defendant did not give consent to stop and the officer(s) did not have requisite grounds for a stop of Defendant.
  3. 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 pedestrian stop.


On or about May 31, 2010, at 10:01 p.m., Officer John Smith of the Melbourne Police Department observed Defendant and two other black males attempt to walk across the roadway near 4360 Dairy Road, a street location approximately 150 yards north of the intersection with Palm Bay Road in Melbourne, Brevard County, Florida. Based on Defendant’s alleged actions, Officer Smith conducted a pedestrian “stop,” claiming that Defendant committed a violation of § 316.130(12), Florida Statutes, by “fail[ing] to use a crosswalk.” Officer Smith and Officer Jessi Collins allege that, upon questioning Defendant about his name and date of birth, Defendant gave false information about his identity. Officer Smith further alleges that, upon placing Defendant under arrest, Defendant stated, “OK, I’ll give you my real name.”

As a result of the encounter alleged by Officers Smith and Collins, Defendant was arrested, transported the Melbourne Police Department, and subsequently charged with Resisting an Officer Without Violence, a first degree misdemeanor under § 843.02, Florida Statutes.


The evidence seized in this case was the result of an unlawful investigatory stop or traffic stop and must be suppressed. Under the Fourth Amendment exclusionary rule, evidence obtained as a result of an illegal search or seizure is not admissible in proceedings against an accused where a timely application is made to suppress or exclude the evidence. Hilton v. State, 961 So. 2d 284 (Fla. 2007). This rule prohibits the introduction into evidence of tangible materials seized during an unlawful search, testimony concerning knowledge acquired during an unlawful search, and derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. Murray v. U.S., 487 U.S. 533 (1988).

The evidence seized in the present case must be suppressed because Officer Smith lacked the requisite founded suspicion or probable cause to conduct the above-referenced pedestrian stop of Defendant. There are three levels of encounters between the police and the members of the public: consensual encounters, investigative stops, and formal arrests. Popple v. State, 626 So. 2d 185 (Fla. 1993); State v. Simons, 549 So. 2d 785 (2d DCA 1989). The consensual encounter involves only minimal police contact and no seizure, whereas the investigative stop requires a well-founded suspicion that criminal activity is afoot. The formal arrest requires probable cause. Simons, 549 So. 2d at 786.

Although “there is no litmus test for distinguishing a police encounter from a seizure, a significant identifying characteristic of a police encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person cannot be detained without reasonable objective grounds for doing so.” Id. In Florida v. Bostick, the United States Supreme Court stated that when an officer “has in some way restrained the liberty of a citizen . . . we conclude that a ‘seizure’ has occurred.” Florida v. Bostick, 501 U.S. 429 at 434 (1991).

The United States Supreme Court has held that, in determining whether an episode began as a consensual encounter, courts must examine the totality of the circumstances and, most importantly, whether a reasonable person would believe that he or she was free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). While it has been held by the Fifth District Court of Appeals that the police may freely question an individual and ask to see his identification, and may even request to search his person without implicating Fourth Amendment rights, officers may not convey a message that compliance with their requests is required. Jeralds v. State, 664 So. 2d 56 (5th DCA1995).

In order to justify an investigatory stop, law enforcement officers must have a well-founded, reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Second District Court of Appeal has held that a law enforcement officer may temporarily detain a person and conduct an investigatory stop if the officer has a “founded” suspicion that the person has committed, is committing, or is about to commit a crime. Jordan v. State, 544 So. 2d 1073 (2d DCA 1989); State v. Allen, 994 So. 2d 1192, 1193 (5th DCA 2008).

Founded suspicion must have a factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. G.J.P. v. State, 469 So. 2d 826 (2d DCA 1985). To evaluate whether there was an objective basis for reasonable suspicion, courts must consider “the totality of the circumstances” surrounding the stop. United States v. Cortez, 449 U.S. 411, 417 (1981). Mere suspicion “is no better than random selection, sheer guesswork, or hunch; it has no objective justification.” G.J.P., 469 So. 2d at 828; Smith v. State, 592 So. 2d 1206 (2d DCA 1992). Furthermore, a police officer’s mistake of law as to what constitutes a violation of the law, no matter how reasonable, cannot provide objectively reasonable grounds to support probable cause or reasonable suspicion. United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003) (holding that an officer’s mistake of law may never provide objective grounds for probable cause or reasonable suspicion).

If the stop in the instant case is considered a traffic stop, then such a stop also constitutes “seizure” within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (U.S. 1979); Hilton, 961 So. 2d at 294. In considering whether a decision to make a traffic stop is “reasonable” for Fourth Amendment purposes, “generally the only determination to be made is whether probable cause existed for the stop in question.” Holland v. State, 696 So. 2d 757, 759 (Fla. 1997); Whren v. United States, 517 U.S. 806 (1996). Whether an officer has probable cause to make a traffic stop is judged not by the officer’s subjective belief, but by an objective standard based on the observed violations. Holland, 696 So. 2d at 759 (Fla. 1997) (citing Whren, 116 S. Ct. at 1777); Bender v. State, 737 So. 2d 1181, 1181-1182 (1st DCA 1999). However, an officer’s mistake of law can never provide an objectively reasonable basis to support a finding of probable cause. Chanthasouxat, 342 F.3d at 1276.

In the instant case, Officer Smith conducted an investigatory stop or traffic stop of Defendant on grounds of an alleged failure to use a pedestrian crosswalk. Officer Smith himself refers to the encounter as a “stop,” and he proceeded to issue a citation based on the alleged infraction. Officer Smith similarly characterized the encounter as a “pedestrian stop.” Thus, the only issue remaining is whether Officer Smith had the requisite founded suspicion or probable cause to detain Defendant and inquire as to Defendant’s identity.

Contrary to Officer Smith’s assertions, Defendant’s alleged conduct did not constitute a violation of the statute referenced in the traffic citation. Florida Statutes § 316.130(12) provides as follows:

No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb.

Here, there was no allegation by either of the officers on the scene that Mr. XXXX at any point proceeded across Dairy Road at a diagonal or by a route other than the shortest route. Thus, there was no violation of § 316.130(12).

No other provision of § 316.130 provides a basis for a pedestrian violation alleged in the instant case. “Failure to use a crosswalk” is not a listed infraction. On the contrary, § 316.130(10) specifically provides that a pedestrian may cross a roadway at any point “other than within a marked crosswalk” so long as he or she “yield[s] the right-of-way to all vehicles upon the roadway.” The only conceivable basis for the alleged infraction is § 316.130(11), which provides that “[b]etween adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.” This provision too fails to provide the basis for the pedestrian stop conducted by Officer Smith. In his arrest report, dated June 1, 2010, he concedes that he observed Defendant and two other black males “crossing Dairy Road approximately 150 feet north of the cross walk located at Palm Bay Road. Thus, the alleged crossing did not occur at or between an adjacent intersection.

Based on the above-referenced traffic statutes and the statements contained in the arrest affidavits and reports of Officers Smith and Collins, it is evident that Officer Smith, acting under a mistake of law, lacked either probable cause or reasonable suspicion to conduct a pedestrian stop of Defendant. Under Chanthasouxat, 342 F.3d at 1276, this mistake of law cannot provide the objective grounds to assert the reasonableness of the stop. As such, the stop conducted by Officer Smith was unreasonable and violative of Defendant’s Fourth Amendment rights. Since the stop represented an unlawful seizure, any evidence that derived from that initial constitutional violation must be suppressed as a fruit of the poisonous tree.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order suppressing in this cause the evidence described above.