IN THE COUNTY COURT OF THE XXXXXXXXXXXX JUDICIAL CIRCUIT IN AND FOR XXXXXXXXX COUNTY, FLORIDA. DIVISION: The Hon. XXXXX XXXXXX

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1 IN THE COUNTY COURT OF THE XXXXXXXXXXXX JUDICIAL CIRCUIT IN AND FOR XXXXXXXXX COUNTY, FLORIDA STATE OF FLORIDA CASE NO: 20XX-CT-XXXXXX v. TD DIVISION: The Hon. XXXXX XXXXXX DEFENDANT S MOTION TO SUPPRESS COMES NOW, Defendant, TD, by and through her undersigned counsel and pursuant to Rule 3.190(h), Fla. R. Crim. P., moves this Court to issue an order suppressing certain evidence that may be used in this case. The specific evidence sought to be suppressed is as follows: 1. All statements made by Defendant to Deputy PC; 2. All statements made by Defendant to Officer FR of the <CITY> Police Department; 3. All observations made by Deputy PV and Officer FR; 4. The results of the field sobriety exercises; 5. The refusal to submit to a breath test; 6. Any other evidence that the State intends to present at trial which is not specifically set forth above. The grounds for this motion are that all of the aforementioned evidence was illegally seized in violation of the Fourth Amendment of the United States Constitution made applicable to the States through the Fourteenth Amendment of the United States Constitution. FACTS OF THE CASE On February xx, 20XX at approximately X:25 am a tip was provided to dispatch in <NAME OF COUNTY> County. The tip was that an individual was driving recklessly traveling northbound on I-95. Ofc. FR of the <CITY> Police Department responded to the call and headed to the Northbound I-95 Exit on County Road xxx. A vehicle matching the description provided to dispatch was spotted exiting I-95 on the northbound exit ramp which turns slightly east of centerline and travels in a NNE direction. The vehicle(hereinafter defendant s vehicle ) traveled

2 NNE on the northbound exit ramp and made a right-hand turn to travel eastbound on County Road xxx. As defendant s vehicle was exiting I-95, Ofc. FR saw an individual, traveling behind defendant s vehicle, in a dark colored truck. The individual was a male, had his window down and was pointing towards defendant s vehicle which had now been identified as a Toyota SUV. Ofc. FR, traveling eastbound on County Road xxx, pulled in behind defendant s vehicle and radioed for Deputy RA to contact the male in the dark colored truck. Defendant briefly traveled eastbound on County Road xxx and made a left-hand turn onto a road leading into a gas station parking lot. Ofc. FR was behind defendant s vehicle as it made a left-hand turn into the parking lot located at xxxxx County Road xxx, xxxxxxxxx, Florida. Ofc. FR witnessed defendant park her vehicle near a gas pum. Ofc. FR approached the vehicle and made contact with defendant. He informed her that he was conducting a wellness check because of her reported driving pattern. Ofc. FR started questioning defendant at the scene. Ofc. FR asked for and did receive defendant s drivers license. Ofc. FR asked defendant when she last had an alcoholic drink and was advised by defendant that the last time she drank was yesterday. Deputy PC arrived on the scene after Ofc. FR had completed the second phase of the DUI investigation. Ofc. FR advised that defendant was not cooperating because she did not answer a question that he did not ask. Ofc. FR ordered defendant from her vehicle in order to confirm the odor of alcoholic beverages on her person. Deputy PC conducted the field sobriety exercises. The field sobriety exercises consisted of the three NHTSA standardized field sobriety exercises. Defendant did not perform the field sobriety exercises to Deputy PC s satisfaction and was placed under arrest for driving under the influence of alcohol. Throughout Ofc. FR s entire observation, Ofc. FR never observed defendant commit any traffic infractions. Ofc. FR s investigation, including his observations of defendant driving and during the wellness check, took place outside the City of <CITY>, Florida. Accordingly, Ofc.

3 FR never witnessed defendant traveling within his jurisdiction. LEGAL ANALYSIS I. JURISDICTION AND UNDER COLOR OF LAW Generally, an officer of a county or municipality has no official power to arrest an offender outside of the boundaries of the officer s county or municipality. Huebner v. State, 731 So.2d 40, 44 (Fla. 4 th DCA 1999). In addition to any official power to arrest, police officers also have a common law right as citizens to make a so-called citizen s arrest. We do not mean to imply that police officers acting outside their jurisdictions are treated as private persons for the purposes of the exclusionary rule. Rather, we mean that the legislature, by vesting police officers with official powers, did not intend to divest the officers of their common-law right as citizens to make arrests. State v. Phoenix, 428 So.2d 262, 265 (Fla. 4 th DCA 1983). To prevent officers from abusing their power as a police officer while making a citizen s arrest, the courts of this state have held that law enforcement officials may not make a citizen s arrest under the color of their office. The under color of law doctrine applies when an officer, outside of his jurisdiction, by virtue of his position as a police officer, is able to observe and/or gain access to evidence that would not otherwise be available to a private citizen. See Id. The mere identification as a police officer and/or even using police lights is not a per se violation of the color of law doctrine when all of the activity and evidence could have been obtained by the general public. See Id. II. COMMUNITY CARETAKING FUNCTION The community caretaking doctrine addresses certain law enforcement functions which are divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal law. Instead, searches and seizures under the community caretaking doctrine focuses on concern for the safety of the general public. Under the community caretaking doctrine, law enforcement may make warrantless searches and seizures under circumstances in which they reasonably believe that action is necessary in order to deal with a life-threatening emergency. Attempting to justify an out of jurisdiction search and/or seizure on the community caretaking exception is without merit as the community caretaking exception gives an officer greater power

4 than an average citizen as the law enforcement officer can make a warrantless search or seizure. III. APPLIED TO FACTS All of Ofc. FR s acts were performed outside of his jurisdiction, in violation of defendant s Fourth Amendment rights and subject to the exclusionary rule. Concerning color of law violations the simple test for the court to answer is whether Ofc. FR s position as a police officer allowed him to gain access to additional evidence or information that any other citizen making a citizen s arrest. In the case at hand, Ofc. FR s involvement was 100% outside of his jurisdiction which is in the city of <CITY>. Ofc. FR did not see any driving pattern which would make him suspect the driver was under the influence. Ofc. FR did not see any traffic infractions giving rise to a traffic stop. Accordingly, Ofc. FR attempted to circumvent defendant s Fourth Amendment Rights by labeling the seizure a wellness check. Ofc. FR clearly made this seizure under color of law sense his behavior far exceeded what is permissible of a regular citizen. Initially, Ofc. FR informed defendant that he was conducting a wellness check. Regular citizens do not have the ability to seize an individual for purposes of a wellness check. A wellness check is inextricably intertwined with the community caretaking function which is only applicable in the officer s jurisdiction. Furthermore, Ofc. FR requested defendant s drivers license and ordered her to step out of the vehicle. Whether this was classified as a request or an order is irrelevant. The mere fact that Ofc. FR is directing defendant to get out the vehicle indicates he is exercising authority under color of law. See Popple v. State, 626 So.2d 185(Fla. 1993). IV. PROBABLE CAUSE There are three phases to a DUI arrest. The first phase is termed Vehicle in Motion. In the vehicle in motion phase, a police officer is trained to observe approximately 33 different indications that a driver is impaired. Ofc. FR observed no indications of impairment from defendant s driving pattern. The second phase of a DUI arrest involves face to face contact and is sometimes referred

5 to as Pre-exit Screening. Officers are trained to look for three main indications, and other minor indicators, that an individual is impaired. These indications are almost automatically contained in a probable cause affidavit for a DUI arrest. The three main indicators of impairment are slurred speech, bloodshot glassy eyes and a strong odor of alcohol emanating from defendant s facial area. Officers are also trained to ask defendants divided attention questions to test their abilities to pay attention to multiple things at one time. The most common example is May I see your license and registration please? In the second phase neither Ofc. FR nor Deputy PC witnessed or observed any indications that defendant was impaired. In fact, Ofc. FR had to order defendant out of her vehicle to confirm the odor of alcohol. Deputy PC never claimed to smell the odor of alcohol and specifically states in his report that it was Ofc. FR who claimed to smell the odor of alcohol. By ordering defendant outside of the vehicle for an impromptu sniff test highlights will the fact that Ofc. FR was acting under color of law. Phase 3 of a DUI arrest is called pre-arrest screening. This consists of the standard field sobriety exercises. In order to conduct phase 3, the officer must have a reasonable suspicion that defendant is under the influence of alcohol, certain volatile hydrocarbon gases and/or a controlled substance under Chapter 893 Florida Statutes. As stated above neither police officer witnessed any phase 1 or phase 2 indications of impairment. Accordingly, the officers did not have reasonable suspicion to continue defendant s detention and in doing so violated Defendant s Fourth Amendment Rights rendering all of the evidence inadmissible. WHEREFORE, defendant requests this Honorable Court grant defendant s motion to suppress in its entirety and for such other and further relief as this court may deem just and proper. -Remainder of Page Intentionally Left Blank-

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the Office of the State Attorney this the day of, 20 Respectfully submitted,