Warrantless searches in the state of Florida by Veronica Rivera: Trial Materials

In document drafting it is useful to review other materials such as briefs that have been submitted relating to your argument. This will save time and allow you to tailor your argument to your clients specific case. Different arguments have been provided below for either Prosecution or Defense. Remember, looking at a brief from the opposite side can still assist the attorney in discovering where their argument should go.

Additional Briefs:

-State of Florida v. Beltz - Motion to Suppress Evidence was valid based upon the totality of the evidence in the automobile stop.          State of Florida, Petitioner, v. Kellen Lee BETZ, Respondent., 2001 WL 34114643 (Fla.), 1.

-State of Florida v. White - Motion to Suppress Evidence was valid since the search was improper as it relied on a bad warrant.         State of Florida, Petitioner, v. David WHITE, Respondent., 1994 WL 16013350 (Fla.), 1.

-State of Florida v. Bamber - Motion to Suppress Evidence was valid since the execution of the warrant was improper as a violation of the "knock and announce" rule. Reviewed whether the existence of normal plumbing in one's home is sufficient for a possible destruction of evidence exception to the "knock and announce" rule.           State of Florida, Petitioner, v. Earl L. BAMBER, Respondent., 1992 WL 12013326 (Fla.), 1.

The Warrant Requirement:

• Section 23:2 Procedural Matters - Federal Search Warrants: Generally, a warrant may be issued for property, contraband, or a person, upon showing of probable cause to believe that a crime has been committed, and that evidence of a crime is contained within a specific location. Such a showing may be made in an affidavit or upon oral testimony to a federal magistrate. 1 Criminal Practice Manual, 23-5 (2013).
• Section 23:5 Procedural Matters - Motion to Suppress: Challenges to the admissibility of evidence must be made by motion filed prior to trial absent good cause, failure to raise suppression issues prior to trial constitutes a waiver. The time for the filing of such motions is generally set by local or federal court rules, and may be modified in most cases by the presiding judge. Warrants are generally challenged on the ground that they lack probable cause or due to defects in the execution of the warrant. Id.
• Section 23:6 Procedural Matters - Motion to Suppress - Particularity: The motion to suppress should allege with particularity the grounds upon which the motion is based. Failure to cite a specific set of facts accompanied by specific points of law and authorities may even result in the denial of a pretrial suppression hearing. Herring v. State, 394 So.2d 433 (Fla. Dist. Ct. App. 3d Dist. 1980). Id. at 23-6 - 23-6.
• NOTE: Defense counsel might not wish to disclose too much of the defense position in the written motion, lest the prosecution witnesses tailor their testimony in order to defeat the defense motion. Id. at 23-6.
• Section 23:14 Procedural Matters - Suppression Hearing: Although the exact procedure will vary from jurisdiction to jurisdiction, the suppression hearing typically is conducted outside the presence of the jury. The minutes are normally recorded and the court will set down its findings in writing in order to preserve meaningful appellate review. Witnesses must testify under oath and are subject to cross-examination. But hearsay is often admissible even though it might not be later admissible at trial. The rules also encourage defendants to testify on their own behalf. Typically, prosecution cross-examination is very limited and the defendant may not be queried about other issues in the case. See, e.g. Fed. R. Evid. 104 (d) (accused does not open door to cross-examination regarding general issues when he testifies on preliminary matters). Moreover, the prosecution may not use this testimony against the defendant at trial on the issue of guilt. Simmons v. U.S., 390 U.S. 377 (1968). Id. at 23-13.
• Section 23:15 Procedural Matters - Suppression Hearing - Burden of Proof: If the police executed the search pursuant to a warrant, most courts follow the federal rule which lays the burden of proof in a suppression hearing at the defendant's doorstep. U.S. v. Berick, 710 F.2d 1035 (5th Cir. 1983). If the search was warrantless, though, the majority rule places the burden of persuasion upon the prosecution. As noted in Coolidge v. New Hampshire, 403 U.S. 443, 445, (1971), those seeking to justify deviation from the warrant requirement should be able to demonstrate "that the exigencies of the situation made that course imperative." Id.

Exceptions to the Warrant Requirement:

• Section 25:3 Stop and Frisk: Stops must be supported by particularized reasonable suspicion based on specific articulately facts. 1 Criminal Practice Manual, 25-7 (2013).
• Section 25:4 Stop and Frisk - Anonymous Tips: An anonymous tip, if sufficiently corroborated, may be the basis for an investigatory stop. A flexible "totality of the circumstances" test applies for judging the tipster's veracity, reliability, and knowledge, and reasonable suspicion can arise from information that is less reliable than that required to show probable cause. See, Florida v. J.L., 529 U.S. 266 (2000). (p. 25-8)
• Section 25:5 Arrests: The test for determining whether the detainee has been arrested is an objective one: i.e., whether in view of all the circumstances surrounding the incident a reasonable person would have believed he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544 (1980). Id. at 25-10.
• Section 25:11 Arrests - Homes: Police may not make a warrantless, non consensual entry into a suspect's home in order to execute a routine felony arrest. Payton v. New York, 445 U.S. 573 (1980). Id. at 25-13.
• Section 25:28 Searches Incident to Arrest: In 1969, the Supreme Court first formally recognized that police enjoy a "strictly limited right" to search a suspect's person and area of "immediate control," contemporaneous with arresting that individual. Chimel v. California, 395 U.S. 752, 759 (1969). Then in New York v. Belton, the Court reaffirmed the "bright-line" test in Chimel but limited this holding to the particular context of traffic-related stops of automobiles, the Court declared that incident to a lawful custodial arrest an officer can search (1) the passenger compartment of the automobile in which the arrestee is riding as well as (2) the contents of any containers found within the passenger compartment. 453 U.S. 454, 460 (1981). Id. at 25-23.
• Section 25:74 Consent: Where valid consent is given, law enforcement can execute a search without probable cause and without a warrant. U.S. v. Matlock, 415 U.S. 164 (1974).  Id. at 25-56.
• NOTE: Most courts have concluded that a defendant can withdraw or limit his consent at any point during the police search. See e.g., Smith v. State, 753 So.2d 713, 715 (Fla. Dist. Ct. App. 2d Dist. 2000). Id. at 25-76.
• Section 25:105 Plain View: The plain view doctrine allows police to execute a warrantless seizure of incriminating evidence that they come upon during the course of a lawful search or arrest when three prerequisites are satisfied: (1) the officer must not have violated the Fourth Amendment in arriving at the place from which the item could be plainly viewed; (2) the officer must have a lawful right of access to the object itself; (3) the item's incriminating character must be "immediately apparent." Id.
• Section 25:112 Emergency - "Hot" Pursuit: When chasing an armed felon, police officers may follow him and make a warrantless entry into a residence to apprehend him if: (1) the police have probable cause to arrest the fleeing felon; (2) immediate apprehension is necessary to prevent the destruction of evidence, prevent the completion of a crime, or to prevent the suspect's escape; and (3) the pursuit is "hot" - i.e., the police have continuous knowledge of the supect's whereabouts. Id. at 25-82.
• Section 25:113 Emergency "Warm" Pursuit: If the police are not actually pursuing the suspect or do not actually see him flee into the private premises, the warantless pursuit may still be valid if: (1) the offense was "grave," i.e., a life-threatening felony; (2) whether the suspect is reasonably believed to be armed; (3) whether there exists more than the minimum probable cause, i.e., whether probable cause is "clear"; (4) whether there is "strong reason" to believe that the suspect is in the premises; (5) whether the suspect is likely to escape if not apprehended instantly; (6) whether the entry was as peaceable as practicable under the circumstances; and (7) whether the entry was made in daytime or night-time. Dorman v. U.S., 435 F.2d 385 (D.C. Cir. 1970). Id. at 25-83.
• Section 25:114 Emergency - Destruction of Evidence: In some limited instances, the police may legally engage in a warrantless entry to prevent the destruction of incriminating evidence, even though they are not pursuing a suspected fleeing felon.
• Section 25:116 Energency - Persons in Danger: Perhaps the classic justified warrantless entry case involves the situation where a person may be in imminent danger, see, Wooten v. State, 398 So.2d 963 (Fla. Dist. Ct. App. 1st Dist. 1981). Id. at 25-85.
• Section 25:124 Automobiles - The Automobile Exception: Automobiles are said to be inherently exigent due to their mobility, therefore, if officers have probable cause to believe that a car contains contraband they may search it immediately and completely without waiting for a warrant to issue. See, Carroll v. U.S., 267 U.S. 132 (1925); Maryland v. Dyson, 527 U.S. 465 (1999). Id. at 25-93.
• Section 25:128 Automobiles - "Terry" Automobile Stops: "Vehicular Frisk" was established through Terry v. Ohio, that police may stop motor vehicles and question the occupants when they observe "unusual conduct which lead them reasonably to conclude in light of their experience that criminal activity may be afoot." Id. at 25-96.
• Section 23:42 Challenges to Probable Cause - Taint: Fruit of the Poisonous Tree: The police may not exploit evidence derived from illegal behavior in order to establish probable cause. See, Wong Sun v. U.S., 371 U.S. (1963). Id. at 23-25.
• NOTE: The illegality must actually "taint" the procurement of the warrant. If there is an independent source for the probable cause cited in the document, suppression will not be granted. Murray v. U.S., 487 U.S. 533 (1988). Id.

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Below are links to various government websites that may be useful during trial preparation. Specifically the websites for each Judicial Circuit in Florida are listed and can be used to easily locate the circuit or county court website in a particular location and to find: local rules, dockets, and judges.

Interrogatories

Interrogatories are written questions served by one party on any other party that may relate to any matter, not privileged, that is relevant to the claim or defense of any party. Interrogatories are typically used to determine the basis for a claim or defense, and to delineate the facts and issues in dispute. 2 Federal Litigation Guide, § 12.01 (Matthew Bender).

Section 12.05 Two Types of Interrogatories:

(1) Identification interrogatories which seek factual information.

(2) Contention interrogatories inquiring into an opinion or contention that relates to fact or the application of law to fact and helps a party determine the other party's theory of the case. 2 Federal Litigation Guide, § 12.05 (Matthew Bender).

Section 12.101[2] Answers to Interrogatories:

A party must respond to each interrogatory by any of the following:

         -Answer

         -Objection

         -Motion for Protective Order

2 Federal Litigation Guide, § 12.101[2] (Matthew Bender).

Section 12.100[5] Limits on Number of Interrogatories:

Rule 33 limits the number of interrogatories that may be served by one party on another party to 25. However, some district courts have opted out of this limit. 2 Federal Litigation Guide, § 12.100[5] (Matthew Bender).

Depositions

Depositions are meaningful mechanisms for discovering what potential witnesses know and what they may say at trial.

2 Federal Litigation Guide, § 16.01[2] (Matthew Bender).

A trial notebook might include the following tabs or folders, with an index or table of contents behind each tab:

• List of Witnesses
• Indictment or Information
• Pretrial Motions and Orders
• Jury Selection Materials
• Opening Statement
• Order of Proof Sheet
• List of Exhibits with References to Witness
• Notes for Direct and Cross-Examinations
• Legal Research
• Notes for Motion for Judgment of Acquittal Argument
• Potential Rebuttal Material
• Closing Argument
• Jury Instructions with Legal Authority
• Section for Trial Notes

3 Criminal Practice Manual, 91-14 - 91-15 (2013).