IN
THE COUNTY COURT IN AND
CRIMINAL DIVISION
MOTION TO SUPPRESS AND
INCORPORATED MEMORANDUM OF LAW
The defendant, Xxxx Xxxxxx, by and through undersigned counsel, and respectfully files the following supplemental memorandum of law in support of Mr. Xxxxxx’s Motion to Suppress Evidence:
Cases discussing the issue raised herein are many, and consistent. The below-noted opinions hold that police may not stop a motorist driving as nearly as practicable within a lane (or) safely moving to another lane.
Police may stop a citizen driving a car if there is probable cause the citizen has committed a traffic violation. Holland v. State, 696 So.2d 757 (Fla. 1987).
Cases discussing probable cause in the context of a F.S. 316.089(1) traffic violation are many, and consistent. The below-noted opinions hold that police may not stop a motorist driving as nearly as practicable within a lane (or) safely moving to another lane.
Please note that in Mr. Xxxxxx’ case, the police report listed only three “visual detection cues” to support the stop. There was an anonymous tip. He was not cited for any of the alleged violations. The “cues” in the following cited cases have also been counted to better compare Mr. Xxxxxx’s case with the prevailing case law. The Video of Mr. Xxxxxx’s driving is here. The actual driving begins at about twelve minutes (omitted for privacy reasons).
1. State v. Labra, 5 Fla. L.
Weekly Supp. 556 (11th Judicial Circuit, Dade County Court, 4/15/98). Defendant was driving at
Held: No violation of F.S. 316.089(1). Motion to Suppress, granted.
(Visual detection cues: 4)
2. Staley v. State, 6
Fla. L. Weekly Supp. 761 (19th Judicial Circuit Court, Indian River County,
8/18/99). Defendant was driving at
Held: “Ms. Staley did not commit any traffic infraction nor was she involved in any erratic driving giving rise to a founded suspicion to justify stopping her vehicle. The stop was illegal.” Motion to Suppress, granted.
(Visual detection cues: 5)
3. DeJesus v. State, 7 Fla. L. Weekly Supp. 508 (15th Judicial Circuit Court, Palm Beach County, 4/4/00). The police report (probable cause affidavit) alleged appellant was weaving, however, it did not indicate how many times or to what degree.
Held: Evidence insufficient to prove defendant violated the “weaving statute” or to prove police had an objective founded suspicion defendant was impaired. Motion to Suppress, granted.
(Visual detection cues: 1)
4. State v. Alford, 2
Fla. L. Weekly Supp. 483 (17th Judicial Circuit Court, Broward County Court,
9/14/94). Defendant was traveling
eastbound at
Held: If a driver’s movement from a lane can be accomplished without endangerment, there is no violation of F.S. 316.089(1). Motion to Suppress, granted. The Court went on to explain,
"Indeed, several analogous cases instruct that in order to justify the stopping of an automobile, more than minor deviations from the traffic law must exist. For example, in Collins v. State, 65 So.2d 61 (Fla. 1953), the Florida Supreme Court held that a defendant who drove on the wrong side of the road on three occasions in the course of a mile by driving one foot over the center line of the highway was insufficient to justify the police officer’s stop of the defendant ... See also, Kehoe v. State, supra., 521 So.2d at 1097 (“It is difficult to operate a vehicle without committing some trivial violation …”)."
(Visual detection cues: 1)
5. State v. Crawford,
9 Fla. L. Weekly Supp. 562 (15th Judicial Circuit, Palm Beach County Court,
6/25/02). Defendant was driving
eastbound at
Held: Motion to Suppress, granted. In granting the motion, the court briefed 13 cases in support of its ruling [Bailey v. State, 319 So.2d 22 (Fla. 1975); Esteen v. State, 503 So.2d 356 (5th DCA 1987); State v. Carrillo, 506 So.2d 495 (5th DCA 1987); State Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349 (2nd DCA 1992); Crooks v. State, 710 So.2d 1041 (2nd DCA 1998); Roberts v. State, 732 So.2d 1127 (4th DCA 1999); Finizio V. State, 800 So.2d 347 (4th DCA 2001); State of Florida v. Meyers, 6 Fla. L. Weekly Supp. 646 (County Court, Pinellas County, 1999); State v. Townley, 6 Fla. L. Weekly Supp. 531 (9th Judicial Circuit in and for Orange County); Staley v. State, 6 Fla. L. Weekly Supp. 761 (19th Judicial Circuit in and for Indian River County, 1999); Noorigan v. State, 2000 WL 291557 (4th Judicial Circuit, 2000); Dobrin v. State DMV, 9 Fla. L. Weekly Supp. 355 (7th Judicial Circuit, 2002); Bell v. State DMV, 9 Fla. L. Weekly 354 (9th Judicial Circuit in and for Volusia County, 2002)]. The Court concluded its opinion with the following:
“This Court will not grant police officers blanket
authority to conduct investigatory stops for DUI, by virtue of a ‘well being
check’ on motorists who simply are lost, unfamiliar with the vicinity, or pose
no danger to surrounding traffic.”
(Visual detection cues: 5)
6. State v. Wainberg,
4 Fla. L. Weekly Supp. 669 (11th Judicial Circuit, Dade County Court, 1/24/97).
The policeman was traveling
Held: No probable cause to stop defendant's car. Motion to Suppress, granted.
(Visual detection cues: 3)
7. Delafe v. State, 8 Fla. L. Weekly Supp. 594 (11th Judicial Circuit Court, Miami Dade County, 7/24/01). Police followed defendant's car for 10 ½ blocks, as he weaved within his lane, while driving at a slow speed.
Held: Evidence of weaving within a lane is alone an insufficient reason to stop a motorist. Motion to Suppress, granted.
(Visual detection cues: 2)
8. State v.
Gschwendtner, 9 Fla. L. Weekly Supp. 620 (11th Judicial Circuit, Miami Dade
County Court, 7/18/02). Police were
following defendant as he was driving northbound at
Held: Motion to Suppress, granted.
(Visual detection cues: 4)
9. State v. Gonzales,
3 Fla. L. Weekly Supp. 701 (17th Judicial Circuit, Broward County Court,
12/26/95). Defendant was driving at
Held: Since the other traffic was not affected by defendant's driving pattern, there was no violation of F.S. 316.089(1). Motion to Suppress, granted.
(Visual detection cues: 2)
10. Noorigan v. State, 7
Fla. L. Weekly Supp 369 (4th Judicial Circuit, Duval County Court, 2/23/00). Police were driving behind defendant, who was
driving at
Held: Motion to Suppress, granted.
(Visual detection cues: 2)
11. State v. Stahr, 4 Fla. L. Weekly Supp. 225 (4th Judicial Circuit, Clay County Court, 7/16/98). Police were driving behind defendant, who was driving in the middle of 3 lanes. Defendant crossed and drifted one foot into the right lane then drifted back to touch the left line of the middle lane. No evasive action was taken by the other vehicles.
Held: Motion to Suppress, granted.
(Visual detection cues: 2)
12.
Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998). Police were driving
behind defendant who drove over the right hand lane lines, into the emergency
lane three times.
Held: Motion to Suppress, granted. There was no basis that defendant was outside the "practicable" lane mentioned in F.S. 316.089(1), and even if he was outside the margin of error, the movements could be made with safety.
(Visual detection cues: 2)
13. Jordan v. State, 27 Fla. L.
Weekly D2651 (Fla. 5th DCA 12/13/02). The
Held: F.S. 316.089(1) "recognizes that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision." Motion to Suppress, granted.
(Visual detection cues: 2)
14. United States v. Smith, 799 F.2d
704 (11th Cir. 1986). The police
were following defendant for one mile at
Held: The police did not have probable cause, under
(Visual detection cues: 2)
15. Graham v. State, 60 So.2d 186 (Fla. 1952). Defendant drove across the centerline between
Held: The Court stated, "If one is to be charged with reckless driving for crossing the center line of the road, except where 'no passing lanes' have been plainly marked, then we are all going to jail, sooner or later." Motion to Suppress, granted.
(Visual detection cues: 2)
16. Bell v. State, 9 Fla. L.
Weekly Supp. (7th Judicial Circuit, Volusia County Court, 4/10/02). Defendant was driving westbound at
Held: Motion to Suppress, granted.
(Visual detection cues: 4)
17. State v. Myer, 2 Fla. L.
Weekly Supp. 484 (17th Judicial Circuit, Broward County Court, 9/29/94). Defendant was driving northbound at
Held: Motion to Suppress, granted.
(Visual detection cues: 2)
Based upon the foregoing precedent, undersigned respectfully suggests Mr. Xxxxxx’s Motion to Suppress should be granted, as the basis for the stop was insufficient.
Respectfully submitted,
W.F. "Casey" Ebsary, Jr.
Board Certified Criminal Trial Lawyer
813.222.2220 Voice
813.222.2222 Facsimile and Data
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by US Mail to the State Attorney's Office, New Port Richey, Florida on this 7th day of February 2011.
W.F. “Casey” Ebsary, Jr.