IN THE SUPREME COURT OF FLORIDA CASE NO. RAFAEL SANCHEZ-DOPAZO, Petitioner, -vs- CHARLES CRIST, ATTORNEY GENERAL FOR THE STATE OF FLORIDA Respondent. ON PETITION FOR DISCRETIONARY REVIEW AMENDED PETITIONER S BRIEF ON JURISDICTION MARISA TINKLER MENDEZ, P.A. MARISA TINKLER MENDEZ, ESQ. 901 Ponce deleon Blvd. Suite 304 Coral Gables, Florida 33134 Florida Bar No. 586455 (305) 444-3747 Counsel for Petitioner
TABLE OF CONTENTS PAGE(s) TABLE OF CONTENTS... i TABLE OF CITATIONS... iii INTRODUCTION... 1 STATEMENT OF THE CASE... 1 STATEMENT OF JURISDICTION OF THIS COURT... 5 I. THIS CASE SHOULD BE REVIEWED GIVEN THE DIRECT CONFLICT WITH THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN NULPH V. STATE, 838 SO.2D 1244 (FLA. 2D DCA 2003), WHICH IS RESULTING IN DISPARATE APPLICATION OF THE FLORIDA SUPREME COURT STANDARD TO BE APPLIED IN EVALUATING FOURTH AMENDMENT CLAIMS OF UNREASONABLE SEARCHES AND SEIZURES, LEADING TO FURTHER CONCERNS WARNED OF IN THE UNITED STATES SUPREME COURT CASE OF WHREN V. UNITED STATES, 517 U.S. 806 (1996) ARGUMENT... 5 I. A CLEAR CONFLICT EXISTS IN THIS CASE WITH THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN NULPH V. STATE, 838 SO. 2D 1244 (FLA. 3D DCA 2003), SINCE THERE HAS BEEN A CLEAR MISAPPLICATION OF THE FLORIDA SUPREME COURT STANDARD IN EVALUATING FOURTH AMENDMENT CLAIMS OF UNREASONABLE SEARCHES AND SEIZURES, LEADING TO FURTHER CONCERNS WARNED OF IN THE UNITED STATES SUPREME COURT CASE OF WHREN V. UNITED STATES, 517 U.S. 806 (1996)
i CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF TYPE SIZE... 10 APPENDICES... A-1, A-2
ii TABLE OF CITATIONS CASES PAGE(s) Terry v. Ohio, 392 U.S. 1 (1968)ÿÿÿÿÿÿÿÿÿÿÿÿÿÿ.. 6 Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)ÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ 5,7,8,9 Borys v. State, 824 So.2d 204 (Fla. 2 nd DCA 2002)ÿÿÿÿÿ 7 Holland v. State, 696 So.2d 757 (Fla. 1997)ÿÿÿÿÿÿÿ 8,9 Nulph v. State, 838 So.2d 1244 (Fla. 2d DCA 2003)ÿÿÿÿ 5,6 State v. Daniel, 665 So.2d 1040 (Fla. 1995)ÿÿÿÿÿÿÿÿ 7 OTHER AUTHORITIES Article V sec.3 of the Florida Constitutionÿÿÿÿÿÿÿÿ 5 Rule 9.030(a)(2)(iv), Fla.R.App.Proÿÿÿÿÿÿÿÿÿÿÿ.. 5 U.S.Const.Amend.IVÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ.... 8
iii IN THE SUPREME COURT OF FLORIDA CASE NO. RAFAEL SANCHEZ-DOPAZO, Petitioner, -vs- CHARLIE CRIST, ATTORNEY GENERAL FOR THE STATE OF FLORIDA Respondent. ON PETITION FOR DISCRETIONARY REVIEW AMENDED PETITIONER S BRIEF ON JURISDICTION INTRODUCTION This case is presented to this Court for discretionary review from the decision from the Fourth District Court of Appeal entered on May 21, 2003, rehearing denied on July 3, 2003. STATEMENT OF THE CASE On May 21, 2003 the Fourth District Court of Appeal entered its four page order, affirming the Circuit Court order denying his dispositive motion to suppress, and further affirming his convictions and sentence for possession of cocaine, trafficking in cocaine, and possession of a firearm by a convicted felon. Petitioner filed a timely motion for rehearing and clarification, which was denied by the Court by order dated July 3, 2003. The direct appeal was based on the underlying legality of the police actions in this case, and the subversion of Petitioner s Fourth Amendment rights. On or about August 27, 1999, Miami Police undercover narcotics investigator Roberto Solar was assigned by his supervisor, Sergeant Castro, to investigate Rafael Sanchez. Solar explained that Castro had received
information from an unverified, anonymous caller 1 that Rafael Sanchez was transporting cocaine from Miami up North two or three times a week. Police set up intermittent surveillance of Sanchez at his home and place of work. On November 3, 1999 the police decided to surveil Sanchez for the entire day. Sanchez left his house and drove North on the highway. Sanchez was stopped by Officer Greco only after traveling almost seventy (70) miles. The police involved had agreed and planned to stop Sanchez and search his car with a narcotics dog. [R.4:21-3] While en route following Sanchez, Solar radioed ahead to Florida Highway Patrol Officers to be on the lookout for Sanchez vehicle, and attempt to stop the vehicle. Solar explained that the police, in toto had a pre-arranged plan to follow Sanchez as he drove North, stop his vehicle, and search it for drugs with K-9 drug sniffing dogs. Solar searched jurisdictions in order to find some officer to stop Sanchez to allow the drug search of Sanchez vehicle.[tr.9-10,20-22] It was Florida Highway Patrol Officer Salvatore Greco who, after receiving information about Sanchez vehicle description and tag number, ultimately stopped Sanchez vehicle. Greco admitted that he made a decision to stop Sanchez vehicle once he was advised by his supervisor that the vehicle described was possibly carrying drugs.[r.4:35] This decision to stop Sanchez was made well before Greco actually located the vehicle. Greco located Sanchez vehicle approximately one-half (1/2) an hour later at mile marker 128 on the Turnpike. He said he pace clocked the vehicle, and his (Greco s) speedometer read 78 miles per hour. 2 3 Greco agreed that this was not an ordinary traffic stop where he would stop a vehicle and issue a citation.[r.4:43-4] Greco said that when he stopped Sanchez he asked for his license and registration, and Sanchez promptly produced the requested documents. He noticed that Sanchez had a business restriction on his license, and he ran a check on the license. Greco questioned him about the business restriction and other matters relating to his travel. Sanchez promptly answered his questions.[r.4:46-8] Greco acknowledged that Trooper Benevedez showed up some time later (he could not recall how long after he had stopped Sanchez). Greco contradicted himself on a very important point that is regarding the writing of a traffic citation for speeding which, according to Greco, was supposedly the basis for the stop. Greco first claimed that when the K-9 trooper Rodriguez arrived with the dog, he was still writing Sanchez a ticket; then admitted that when Rodriguez arrived he had not yet written Sanchez a ticket for speeding; then, his third version of events was that he was speaking with Sanchez when Rodriguez arrived (some twenty or so minutes after the stop), and, was only going to give Sanchez a warning for speeding rather than issue a ticket, but, after speaking with Rodriguez, Rodriguez told him to issue Sanchez a speeding citation, which he ultimately did. [Tr.30-31;43-48] FHP Trooper Benevedez appeared at the scene of the stop. When she arrived she saw that Trooper Greco and Mr. Sanchez were already standing outside of their vehicles. Greco told Trooper Benevedez that he wanted to search Sanchez car, and was waiting for the K-9 unit to 1 The police had no information as to the identity of the anonymous person, and did not otherwise have information to verify the tip. 2 Since the State never established that the trooper s speedometer had been properly and timely calibrated, Greco s testimony about speed was only an opinion and estimation of his speed at the time he pace clocked Mr. Sanchez.[R.4:29] 3 Greco also agreed that he usually only writes speeding citations for people who travel fifteen (15) miles per hour over the speed limit.[r.4:38]
arrive. [R.4:91-93] Thereafter, 4 canine Officer Rodriguez arrived at the stop site with his dog Lex. Greco said that he was still writing a speeding ticket for Sanchez when Rodriguez showed up. [R.4:31-2] Greco engaged Sanchez in more conversation while Rodriguez and his drug-sniffing dog searched Sanchez car. [R.4:49-50] There was no evidence presented when Officer Greco actually wrote the traffic ticket for speeding.[r.4:52-4] This timely request for discretionary review and brief on jurisdiction follows. STATEMENT OF JURISDICTION OF THIS COURT The discretionary jurisdiction of this Court is invoked pursuant to Rule 9.030(a)(2)(iv) of the Florida Rules of Appellate Procedure, and Article V sec.3 of the Florida Constitution. ARGUMENT IN SUPPORT OF THIS COURT S JURISDICTION I. A CONFLICT EXISTS IN THIS CASE WITH THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN NULPH V. STATE, 838 SO. 2D 1244 (FLA. 2D DCA 2003), SINCE THERE HAS BEEN A CLEAR MISAPPLICATION OF THE FLORIDA SUPREME COURT STANDARD IN EVALUATING FOURTH AMENDMENT CLAIMS OF UNREASONABLE SEARCHES AND SEIZURES, LEADING TO FURTHER CONCERNS WARNED OF IN WHREN V. UNITED STATES, 517 U.S. 806 (1996) The basis premise of Fourth Amendment Constitutional law, as followed by the State s is that all persons must be protected from unlawful and unreasonable searches and seizures. While a police officer may, under certain circumstances, stop a person for the purpose of investigating what is possible criminal activity, if the officer has reasonable suspicion that the person is engaged in criminal activity. see Terry v. Ohio, 392 U.S. 1 (1968), the police cannot stop a person without some probable cause to believe that a traffic violation has occurred or there is criminal activity afoot. Notably, when the police stop a driver based on sufficient, probable cause to believe that a traffic infraction has occurred, the State that bears the burden of establishing that the infraction did indeed occur. Beyond this, even if the traffic stop was lawful, the traffic stop in this case, and detention here lasted well beyond the time necessary to write the citation. 1 Sanchez should have been free to leave once sufficient time had passed for issuance of the citation. See e.g. Nulph v. State, 838 4 4 It was never clear actually how much time passed from the time Sanchez was first stopped to the time that the narcotics dog arrived. Trooper Greco could not recall how long he waited for Trooper Rodriguez, but, given his testimony that he was waiting so that Sanchez car could be searched, the motivation was clear that Greco would do what was necessary to intentionally stall the process.
So.2d 1244 (Fla. 2d DCA 2003)(detention unreasonably long where police intended to stop car in which defendant a passenger, ran driver s license and registration check, and was standing at back of police vehicle when canine unit arrived to conduct pre-planned search of car); Borys v. State, 824 So.2d 204 (Fla. 2 nd DCA 2002)(detention after point where police officer learned that initial, lawful stop for apparent temporary tag violation was resolved, became illegal stop, requiring suppression of all information learned from the subsequent improper inquiry). The case at bar, warranting this Court s intervention given the conflict in District s, is exactly the type of case the Supreme Court warned of in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The stop here was the type of pre-textual stop that must not be tolerated, even if there existed probable cause to stop Sanchez vehicle based on a traffic violation. The reason is clear -allowing the objective standard to be skewed to allow the police to follow a person for more than 120 miles, lying in wait until a traffic infraction is witnessed, must require more proof that a traffic violation occurred. The traffic stop was not legal, and only a pretext to create probable cause to search the vehicle. The test to be applied to determine the validity of a traffic stop was set forth by the United States Supreme Court in Whren, supra. 5 There, the Supreme Court held that, under the Fourth Amendment, an officer s reasons for a stop of an automobile are immaterial as long as the officer has probable cause to believe that a traffic violation has occurred. Id. at 808. see Holland v. State, 696 So.2d 757 (Fla. 1997)(adopting objective test Whren ). However, as the Supreme Court in Whren recognized, the leniency afforded police officers in making traffic stops must still necessarily be balanced against the Fourth Amendment guarantees of persons to...be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S.Const.Amend.IV. 6 As such, Whren automobile traffic stops are valid and permissible under the Fourth Amendment for only the temporary detention of the violator, and for the limited purpose of assessing the traffic violation. Our Constitution still continues to protects even those persons properly stopped from excessive detention and unreasonable searches and seizures The fear, of course, is that the police will use traffic stops as a means of investigating other law violations, for which there is no probable cause or even existing articulable suspicion of a law violation. There still must exist the traditional justification of probable cause to validate a traffic stop. In this case, the stop of Sanchez vehicle was not a random stop; it was a specifically calculated and pre-arranged stop made by police who followed Sanchez vehicle on the highway for over seventy (70) miles and was under direction from his superiors to make the stop. The record below is clear the speeding allegation and citation were merely a pretext used to create a probable cause justification to stop Sanchez, this to fit within the objectively reasonable standard of Whren. The traffic stop conducted in this case by Florida Highway Patrol Officer Grecco was not legally authorized, and was merely a ruse to detain Mr. Sanchez and conduct an illegal search. This Court should address the matters presented in this case and the conflict that has resulted in the District Court s of Appeal in attempting to apply the objectively reasonable standard of Whren to police traffic stops and detentions. A clear standard must be set and complied with in all circumstances. The intentional delay in issuing the traffic citation in our case 5 Whren overruled the Florida Supreme Court determination in State v. Daniel, 665 So.2d 1040 (Fla. 1995) that a reasonable officer test was to be applied to determine the validity and legality of an automobile stop. 6 The Fourth Amendment protections are guaranteed to the citizens of States through the Fourteenth Amendment.
proves that the stop was only based on the desire to search Mr. Sanchez vehicle for drugs, and, was calculated in a way to circumvent the Fourth Amendment and hide behind the objectively reasonable standard. Our case presents the exact scenario warned of in Whren. While there no longer exists a reasonable officer standard for automobile stops, the police here abused their power, in order to circumvent the protections required under the Fourth Amendment. A conflict in the District Court s of this State exists, and a clear and unequivocal standard for police traffic stops and temporary detentions must be followed to ensure uniformity in the Court s of Appeal and to further insure protection of Fourth Amendment rights. CONCLUSION The Petitioner urges this Court to accept discretionary review of this case. Respectfully submitted, MARISA TINKLER MENDEZ, P.A. MARISA TINKLER MENDEZ, ESQ. 901 Ponce deleon Blvd. Suite 304 Coral Gables, Florida 33134 (305) 444-3747 By MARISA TINKLER MENDEZ, ESQ. Florida Bar No. 586455 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petitioner s brief on jurisdiction was delivered by mail to the Office of the Attorney General, The Capitol PL-01, Tallahassee, Florida 32399-1050 this 26 th day of August, 2003. By MARISA TINKLER MENDEZ, ESQ. 5.1. CERTIFICATE OF TYPE SIZE I hereby certify that this brief is printed in 12 point Courier New, DOS WordPerfect, By MARISA TINKLER MENDEZ, ESQ.
APPENDIX 1. The evidence at the suppression hearing showed that the citation was only finally issued as an afterthought, while Sanchez sat handcuffed in the rear of a police car, and well after he had been stopped, questioned by several officers and his car searched.