IN THE COUNTY COURT OF THE 16TH JUDICIAL CIRCUIT FOR THE
STATE OF FLORIDA, IN AND FOR MONROE COUNTY
STATE OF FLORIDA,
Plaintiff,
CASE NO:
v.
,
Defendant.
_____________________________________/
MOTION TO SUPPRESS STATEMENTS
COMES NOW, the Defendant, [CLIENT NAME], by and through the undersigned
attorney pursuant to Fla.R.Crim.P. 3.190(I), and respectfully moves this Honorable Court
to suppress evidence of statements and admissions allegedly made by the Defendant, as
well as evidence that is the fruit of those statements and admissions, and in support of
this motion states as follows:
A. The Defendant, [CLIENT NAME], is charged with Driving Under the Influence, a
crime that was alleged to have occurred on [DATE OF OFFENSE] at [TIME OF
OFFENSE].
B. STATEMENTS TO BE SUPPRESSED:
Statements or admissions made by the Defendant to law enforcement agents at the
time of the Defendant’s investigatory detention and/or arrest in this case on [DATE OF
OFFENSE] at [OFFENSE LOCATION] at [TIME OF OFFENSE].
C. GROUNDS FOR SUPPRESSION:
The statements were made and taken in violation of the Defendant’s Miranda
rights; the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution;
Miranda v. Arizona, 384 U.S.436 (1960); Art. I §9 of the Florida Constitution; and
Traylor v. State, 596 So.2d 957 (Fla. 1992).
The statements were product of “words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 301 (1980); Arizona v. Mauro, 481 U.S. 520 (1987).
The statements were made after the Defendant indicated a desire to terminate
questioning or consult an attorney and then after which the law enforcement agents
reinitiated contact with the Defendant and resumed questioning concerning this case.
See, Edwards v. Arizona, 451 U.S. 477 (1981).
The statements were fruits of an illegal detention of the Defendant in violation of
the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and
Article I, §§ 9 and 12 of the Florida Constitution.
The statements were taken in violation of the Defendant’s Due Process rights
guaranteed him by the Fourteenth Amendment to the United States Constitution and
Article I §9 of the Florida Constitution. See, Doyle v. Ohio, 96 S.Ct. 2240 (1986);
Colorado v. Connelly, 479 U.S. 157 (1987); Traylor v. State, 596 So.2d 957, 961 (Fla.
1992).
The statements were taken in violation of the Defendant’s right to counsel
guaranteed him by the Sixth Amendments to the United States Constitution and by
Article I, §9 of the Florida Constitution. See, Massiah v. United States, 377 U.S. 201
(1964); Brewer v. Williams, 430 U.S. 387 (1977).
D. FACTUAL BASIS:
E. MEMORANDUM OF LAW:
The right to remain silent and privilege against self-incrimination is offered more
protection under the Florida constitution than is permitted under the federal constitution.
Hoggins v. State, 689 So. 2d 383, 386 (Fla. 4th DCA 1997), review granted, 697 So. 2d
512 (Fla. 1997); Charton v. State, 716 So. 2d 803, 805 & n. 3 (Fla. 4th DCA 1998); See
also, Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992)..
“[T]he Self-Incrimination Clause of Article I, Section 9, Florida Constitution, requires
that prior to custodial interrogation in Florida suspects must be told that they have a right
to remain silent, that anything they say will be used against them in court, that they have
a right to a lawyer’s help [the right to consult with a lawyer before being interrogated and
to have the lawyer present during interrogation], and that if they cannot pay for a lawyer
one will be appointed to help them.” Allred v. State, 622 So. 2d 984, 987 (Fla. 1993),
citing Traylor v. State, 596 So. 2d 957, 966 & n. 13 (Fla. 1992).
“Interrogation takes place for Section 9 purposes when a person is subjected to express
question, or other words or actions, by a state agent, that a reasonable person would
conclude are designed to lead to an incriminating response.” Traylor v. State, 596 So. 2d
957, 966 & n. 17 (Fla. 1992).
“Under Section 9, if the suspect indicates in any manner that he or she does not want to
be interrogated, interrogation must not begin, or if it has already begun, must
immediately stop. If the suspect indicates in any manner that he or she wants the help of
a lawyer, interrogation must not begin until a lawyer is present. Once a suspect has
requested the help of a lawyer, no state agent can reinitiate interrogation on any offense
throughout the period of custody unless the lawyer is present, although the suspect is free
to volunteer a statement to police on his or her own initiative at any time on any subject
in the absence of counsel.” Traylor v. State, 596 So. 2d 957, 966 & n. 14 (Fla. 1992).
“A waiver of a suspect’s constitutional rights must be voluntary, knowing and intelligent,
and, where reasonably practical, prudence suggests it should be in writing.” Traylor v.
State, 596 So. 2d 957, 966 & n. 15 (Fla. 1992).
“CUSTODY” FOR MIRANDA PURPOSES
Roadside questioning of a motorist detained pursuant to a routine traffic stop is not
normally considered “custodial interrogation” for purposes of Miranda. However if a
motorist is subjected to treatment that renders him “’in custody’ for practical purposes, he
will be entitled to the full panoply of protections prescribed by Miranda.” Berkemer v.
McCarty, 468 U.S. 420 (1984). The United States Supreme Court “left to the trial courts
the determination whether a detained motorist ‘thereafter is subjected to treatment that
renders him ‘in custody’ ...’ entitling him to the protections afforded by Miranda.” State
v. Burns, 661 So. 2d 842, 844 (Fla. 5th DCA 1995), citing Berkemer at 440.
Persistent questioning of a suspect, as opposed to “modest” questioning, also may create
a custodial setting. See, Berkemer, 468 U.S. at n. 36 (1984); Pennsylvania v. Bruder, 488
U.S. 9 (1988). Burns, 661 So. 2d at 844.
Under the Florida Constitution, “A person is in custody for Section 9 purposes if a
reasonable person placed in the same position would believe that his or her freedom of
action was curtailed to a degree associated with actual arrest.” Traylor v. State, 596 So.
2d 957, 966 & n. 16 (Fla. 1992).
In Burns, supra, the Defendant was held not to be in custody for Miranda purposes where
“[t]he stop was short (11 minutes), occurred in a public area, only one officer was
present, and the tests were simple.” Burns at 844.
In State v. Evans, 692 So. 2d 305 (Fla. 4th DCA 1997), the factual circumstances
surrounding the stop departed from those enumerated in Berkemer and Burns. The
Fourth District Court of Appeals distinguished Burns, stating: “Here, appellee had
already been told not to leave the area. Deputy Lahiff [who apparently arrived after the
first officer had already begun (and perhaps completed) an accident investigation] took
the appellee over to a nearby gas station, told him he was conducting a DUI investigation,
and asked him question, such as whether he had had anything to drink, whether he had
been injured, etc., as well as administering roadside testing to him. We think that this
amounted to custodial interrogation which required Miranda warnings...” Evans at 307.
Evans identifies several areas where the Defendant is in custody for Miranda purposes:
(1) being instructed not to leave, (2) a second officer arriving at the scene specifically to
conduct a DUI investigation, (3) a direct statement by that officer that he was
“conducting a DUI investigation,” (4) movement of the Defendant from the scene of
traffic stop, and (5) questioning that was apparently perceived as more than a “modest”
amount.
Other factors that determine whether a suspect is in custody for Miranda purposes are: (1)
the length of the detention, (2) the number of police officers involved in the investigation,
(3) whether the defendant is subjected to extra restraints beyond mere detention (e.g.
handcuffs), and (4) whether the language used by the officer in requesting the test would
lead a reasonable person to believe he or she was about to be arrested. See, State v.
Fowler, 26 Fla. L. Weekly D807 (Fla. 2d DCA Mar. 21, 2001); State v. Whelan, 728 So.
2d 807 (Fla. 3d DCA 1999); Burns, supra; Traylor, supra.
STATEMENTS DURING FIELD SOBRIETY EXERCISES
In Whelan, supra, the trial court suppressed the recitation of the alphabet by the
Defendant during “field sobriety exercises” as there was no Miranda warning. The Third
District Court of Appeals upheld the ruling: “A request that an “in custody” motorist
count, or recite the alphabet, calls for testimonial evidence for Fifth Amendment
purposes, and requires Miranda warnings.” State v. Whelan, 728 So. 2d 807, 810-811
(Fla. 3d DCA 1999), citing Allred v. State, 622 So. 2d 984, 986-87 (Fla. 1993)(defendant
incorrectly recited the alphabet and dropped the prefix 1000 before each number) and
Pennsylvania v. Muniz, 496 U.S.582, 592-600 (1990).
In Muniz, the defendant’s “Fifth Amendment privilege against self-incrimination was
violated by admitting at trial an audiotape of his response.” Allred v. State, 622 So. 2d
984, 986 & n. 5 (Fla. 1993), citing Pennsylvania v. Muniz, 496 U.S.582, 589 (1990).
“His response was videotaped; the audio portion to the sixth-birthday question was
held inadmissible.” Allred, 622 So. 2d at 988, n. 5 (emphasis added).
BOOKING RECORDS STATEMENTS:
The questions directed at the Defendant were designed to lead to an incriminating
response and were outside the scope of routine booking questions, e.g.: “Name,
address, height, weight, eye color, date of birth, and current age.” Allred, at 988, n.9.
See, United States v. Hinckley, 672 F.2d 115, 123 (D.C. Cir 1982)(booking interview that
covered a wide range of biographical data “bore none of the indicia of a clerical
operation.”).
Questions during booking records interviews may subject themselves to an Innis standard
of inquiry. An incorrect statement in response to “sixth-birthday” type question, is
inadmissible under Muniz, supra. “Muniz holds that compelling an arrested drunkdriving suspect to disclose the date of his sixth birthday is a “testimonial” response.
Because Muniz was not read his Miranda rights before he was asked the sixth-birthday
question, his Fifth Amendment privilege against self-incrimination was violated by
admitting at trial an audiotape of his response.” Allred v. State, 622 So. 2d 984, 986 & n.
5 (Fla. 1993)
Statements during custodial interrogation are inadmissible to the extent that they
“‘disclose[] information’ beyond possible slurred speech; it is content (incorrect
recitation) of the speech that is being introduced, rather than merely the manner (slurring)
of speech.” Allred, at 987.
“Muniz’s response to the sixth-birthday question, by contrast, was incriminating not just
because of the delivery, but also because the content of his answer supported the
inference that his mental state was confused.” Allred, at 987 & n. 7.
COMMENT ON THE RIGHT TO REMAIN SILENT
The Defendant’s alleged refusal to take a breath test is inadmissible for the further reason
that any evidence of the refusal would constitute an impermissible comment on the
Defendant’s rights to remain silent and to the assistance of an attorney.
In general, courts must prohibit all evidence or argument that is fairly
susceptible of being interpreted by the jury as a comment on the right of
silence. It is improper to comment on a defendant’s post-arrest silence,
whether or not such silence was induced by Miranda warnings.
Comments on a defendant’s right to silence are not harmless error where
evidence against the defendant is not “clearly conclusive.”
Smith v. State, 681 So.2d 894, 895 (4th DCA 1996)(citations omitted).
Any comment that is fairly susceptible of being interpreted by the jury as a comment on
these rights is inadmissible. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Under
the circumstances of this case, the Defendant reasonably believed that he had the right to
remain silent and consult with an attorney. Therefore, any testimony concerning the
Defendant’s request for an attorney, and any characterization of the request as a refusal to
submit to a breath test, is fairly susceptible of being construed as a comment on the rights
to post-arrest silence and to the assistance of counsel. Such evidence and comments
should therefore be excluded. Smith v. State, supra; State v. Smith, 573 So.2d 306, 317
(Fla.1990); Doyle v. Ohio, supra; Bernier v. State, 547 So.2d 306 (4th DCA
1989)(Presentation to jury of portions of defendant's statement to police that he did not
want to answer any more questions constituted impermissible comment on defendant's
Fifth Amendment right to remain silent); J.D. v. State, 553 So.2d 1317 (3d DCA 1989)
OTHER GROUNDS TO BE ARGUED ORE TENUS.
WHEREFORE, the Defendant respectfully requests this Honorable Court to suppress all
statements described in this paragraph ( B ) above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the
Office of the State Attorney, Key West, Florida, this ______ day of ______, 20___.
Respectfully submitted,
_________________________Samuel J. Kaufman, Esq.
1509 Josephine Street, Suite 1
Key West, Florida 33040
Tel. (305) 292-3926
Fax (305) 295-7947
Florida Bar No.: 0144304