IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASENO.: — 16-2016-CF-007454-AXXX DIVISION: CR-A STATE OF FLORIDA v. MARQUIS IHKEEM JEROME JACKSON, ‘Defendant. __ / ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMI LACK OF PROBABLE CAUSE TO STOP THE DEFENDANT. THIS CAUSE came on to be heard at the February 20, 2018 hearing on the Defendant, Marquis Ihkeem Jerome Jackson's ("“Jackson’s” or “Defendant”), Motion to Suppress Physical Evidence and Statements: Lack of Probable Cause to Stop the Defendant (“Motion”) filed with the Clerk on June 2, 2017. The Court has reviewed the Motion, taken testimony, reviewed exhibits admitted into evidence, heard argument of counsel, reviewed cases cited by the State of Florida (“State”) and Defendant, and is fully advised in the premises. The Motion is granted. ‘The Defendant moves this Court to suppress the following evidence: “1. All statements made by the Defendant after the police detained him, and 2. All physical evidence, including but not limited to, cocaine, pentylone, 9 mm semi-automatic with magazine and fourteen live 9 mm rounds.” The Defendant raises as grounds for this Motion that the “evidence mentioned above ‘was illegally seized without a warrant in violation of Defendant’s rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 12 of the Florida Constitution, and in violation of Defendants right to privacy guaranteed by Article 1, Page 1 of 13Section 23 of the Florida Constitution.” 1. FACTUAL BACKGROUND TESTIMO! The State has charged the Defendant with Possession of Cocaine, Possession of Heroin, Carrying a Concealed Firearm and Tampering with Evidence. The Defendant has moved to suppress all statements made by him after police detained him and all physical evidence, including, but not limited to, cocaine, pentylone, nine mm semi-automatic with magazine and fourteen live nine mm rounds. The court held an evidentiary suppression hearing on February 20, 2018 and the State called Sergeant J. C. Nobles (“Sgt. Nobles”) and Officer J. D. Mills “Off, Mills") (collectively referred to as “Officers”) of the Jacksonville Sheriff's Office (“ISO”) to testify. The testimony and evidence presented during the course of the motion hearing will be summarized as follows: 1, On August 21, 2016, at around 10:00 p.m., Sgt. Nobles and Off. Mills of the JSO were actively patrolling the area of East 63" Street and Buffalo Avenue in reference to complaints of illegal drug activity in the area involving a burgundy Ford pickup truck. The Defendant was driving a red Nissan Altima. 2. Sgt. Nobles testified at his pre-hearing deposition on March 1, 2017 that he was traveling westbound in the 600 block of East 63" Street approaching the intersection with Russell Street when the Defendant, who he described as traveling northbound on Russell Street ran the stop sign and turned into the westbound lane of East 63° Street, nearly striking Sgt. Nobles’ marked JSO patrol vehicle. Sgt. Nobles further testified at his deposition that he was forced to lock up his brakes to avoid a collision with the Defendant's vehicle and claimed that he was able to see that the Defendant was not wearing a seatbelt. Page 2 of 13Sgt. Nobles testified in his deposition on March 1, 2017 that he alerted Off. Mills via car-to-car radio of the traffic infractions and the vehicle description Off. Mills testified that he observed the Defendant's vehicle approximately 100 yards in front of him, but he did not observe the Defendant commit any traffic infraction. During his deposition, Sgt. Nobles drew a traffic diagram of the events leading up to the stop that was admitted into evidence during the motion hearing as Defendant's exhibit number one. On the day of the motion hearing, nearly a year after his deposition, Sgt. Nobles completely and materially changed his swom testimony about the events that led to the Defendant's traffic stop. Sgt. Nobles first discovered his testimony in his March 1, 2017 deposition was inaccurate “right after the depo”, they didn’t make any effort to contact either the State or Defendant’s attomey’s office to notify them that his testimony was not accurate. Sgt. Nobles made his first attempt to notify the State of this material change in his testimony on the day of the motion hearing. On March 1, 2017, Sgt. Nobles testified he was driving northbound on Buffalo Avenue, tured westbound onto 63" Street; and wi traveling west on 63 Street toward Russell Street he observed a car traveling northbound on Russell Street run a stop sign and tum westbound in front of him onto East 63" Street. Sgt. Nobles further testified in his deposition that the Defendant's vehicle almost “T-boned” his vehicle and that he had to “jam” his brakes to avoid a crash. ‘As Sgt. Nobles described his initial encounter with the Defendant's vehicle during his March 1, 2017 deposition, it would not have been physically possible for him to see whether or not the Defendant was wearing a seat belt or that he committed any traffic Page 3 of 1310. Me 12. violations. Sgt. Nobles testified at the motion hearing, nearly one year after his deposition, that the directions of his vehicle, Off. Mills’ vehicle and Defendant’s vehicle as he described them, together with the diagram he voluntarily drew to support his testimony, in the deposition were “crossed”. Sgt. Nobles changed his testimony at the motion hearing without any warming provided to Defendant's attorney and only advised the State of what he conceded were problems with his testimony only a short time before the motion hearing. The Defendant called two civilian witnesses, Bertha Mae Robinson (“Robinson”) and Vanessa Sharee Dixon (“Dixon”), who resided near the intersection of East 63" Street and Russell Street, and had a close-up, unobstructed view of the events leading up to the Defendant's traffic stop and the encounter between the Defendant and the Officers. Robinson’s home was located at the comer of East 63 Street and Russell Street where Sgt. Nobles alleges the Defendant ran the stop sign and Dixon's home was located on Russell Street with a front porch facing Russell Street with a clear view of its intersection with East 63° Street. Robinson observed the Defendant approach the stop sign at the intersection of Russell Street and East 63" Street and come to a complete stop. She did not see any other traffic on East 63% Street when the Defendant made his left turn to the eastbound lane of East 63 Street. Robinson then observed the police vehicles approaching the Defendant's vehicle from the nearby Baptist Church and Officers grabbing the Defendant while he tried to unbuckle his own seat belt while shouting at him to “Open your mouth”. She also observed Officers beating the Defendant. Page 4 of 1313, Dixon’s home was located on Russell Street, two houses from the stop sign at its intersection with East 63" Street. She was on her front porch facing Russell Street when the Defendant drove past her, yelling something at her and laughing as he approached the stop sign. Dixon corroborated and confirmed the same observations made by Robinson that the Defendant completely stopped at the stop sign located at the intersection of Russell Street and East 63 Street, there was no traffic going east or west on East 63" Street and the Defendant did not tum his vehicle in front of any police vehicles. Dixon was standing in front of Robinson’s house when she observed officers with the Defendant on the ground “pouncing on him real good.” 14. On March 22, 2018, the State and Defendant re-opened the Motion hearing and submitted a joint stipulation conceming the Defendant's two arrest and booking photographs attached to the stipulation. The parti agreed and stipulated that the Defendant's booking photographs “show bruising under the Defendant’s right eye and that the Defendant's face is swollen” and that the photographs are a true and accurate depiction of how the Defendant looked after he was arrested and booked into the Duval County Jail on August 21, 2016. I, STANDARD OF RE (W AND APPLICABLE LAW A Trial Court's ruling on a Motion to Suppress is a mixed question of law and fact Appellate Courts must independently review mixed questions of law in fact that ultimately determine constitutional issues arising in the context of the Fourth Amendment.' The standard of review of the findings of fact is whether competent, substant I evidence supports the findings made during an evidentiary hearing? Testimony that is not impeached, discredited, or * Connor v, State, 803 So. 2d $98, 608 (Fla, 2001). * See Teffeteller v. Dugger, 734 So. 2d 1009, 1017 (Fla. 1999), Page 5 of 13controverted, nor is self-contradicting or physically impossible, must be accepted by the trial court.’ Findings of historical fact should be reviewed only for “clear error”, with “due weight to be accorded to inferences drawn from those facts” by the lower tribunal. Appellate Courts must construe all of the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the Trial Court’s ruling.’ Appellate Courts review the Trial Court's application of the law to the facts de novo.® “A reviewing court is bound by the trial court’s findings of fact — even if only implicit — made after a suppression hearing, unless they are clearly erroneous.”” It is well established that the Fourth Amendment's prohibition of unreasonable searches and seizures includes investigatory stops of automobiles.* An explanation of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable.” In Whren v. United States,'° the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The only concem under the Fourth Amendment is the validity of the basis asserted by the officer involved in the stop.'' The Whren Court also rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine where a ‘reasonable officer’ would have been moved to * See State v. Daniel, 665 So. 2d 1040, 1044 n. 2 (Fla. 195), rev'd on other grounds, Holland v. State, 696 So. 24 757 (Fla. 1997); See also State v. G. H., $49 So. 2d 1148, 1149 (Fla. 3d DCA 1989). * Omelas v. United States, $17 U. 8,690, 699, 134 L, Ed. 24911, 116 8. Ct. 1657 (1996); CG. v. State, 689 So, 2d 1246, 1248 (Fla. 4" DCA 1997), * Owen v. State, 560 So. 2d 207, 211 (Fla. 1990). * Ornelas, $17 U. 8. at 699; United States v. Harris, 928 F.2d 1113, 1115-16 (11® Cir. 1991), ” State v. Setzler, 667 So. 2d 343, 346 (Fla. 1" DCA 1995). © United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct, 690, 66 L. Ed.2d 621(1981). ° Terry v. Ohio, 392 US. 1, 9, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). ° 517 U.S, 806, 116 S. Ct. 1769, 135 L. Ed.2d 89 (1996). aa Page 6 of 13act upon the traffic violations.”!? Whether the stop was pre-textual is irrelevant as long as the officers had probable cause to believe a violation of law had occurred.'* Stopping an automobile and detaining its occupant constitutes a seizure within the meaning of the Fourth Amendment to the United States Constitution.'* The Florida Supreme Court adopted the objective test as set forth by the United States Supreme Court in Whren.'* This was required by Article I, Section 12 of the Florida Constitution.'® A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment.'’ If an officer makes a traffic stop based on a mistake of fact, the Court must determine whether the officer’s mistake of fact was reasonable; great deference is given to the judgment of trained law enforcement officers “on the scene,”"* “[W]hat is generally demanded of many factual determinations that must regularly be made by agents of the government...is not that they always be correct, but that they always be pio reasonable.”'? An officer's mistake of fact may provide the objective basis for reasonable suspicion or probable cause under the Fourth Amendment because of the intensely fact-sensitive nature of reasonable suspicion and probable cause determinations.”” Consequently, an officer's mistake of fact does not necessarily render his actions unreasonable, because what is reasonable "1d ais. + 74. at 811 (“[O]nly an undiscerning reader would regard {previously discussed cases) as endorsing the principle that ulterior motives can invalidate police conduct tha is justifiable on the basis of probable cause to believe that a violation of law has occurred."); See also Holland v. State, 696 So. 24.757 (Fla. 1997). * State v, Jones, 483 $0.24 433 (Fla, 1986) * Holland v. State, 696 So. 24 757 (Fla. 1997). + As Amended in 1982, Section 2 provides that “(this right shall be construed in conformity with the Fourth ‘Amendment tothe United States Constitution as interpreted by the United States Supreme Court * Saucier v Kate, $33 U. S. 194, 205, 121 S. Ct. 2151, 150 L. Ed, 26 272 (2001); United States v. Chanthasowxat, 342 F.3d 1271, 1276 (11° Cir. 2003). 8/4, 533 U.S. at 205-6 (discussing excessive force and probable cause determinations are subject tothe same Fourth Amendment analysis). ¥ iuinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 111 L. Ed, 2 148 (1990). ® See Ornelas v. U.S, $17 U. S. 690 at 695-96. Page 7 of 13will be dependent on the specific circumstances presented by each case! To hold otherwise would force police to determine conclusively whether a violation had occurred before they have probable cause to investigate it; such a standard would be more expansive than the Fourth Amendment, which limits only “unreasonable” searches and seizures.” ‘The United States Supreme Court has attempted to explain and describe the meaning of reasonable suspicion and probable cause as follows: Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible. They are commonsense, nontechnical conceptions that deal with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”(citations omitted). As such, the standards are “not readily, or even usefully, reduced to a neat set of legal error rules.” (Citation omitted). We have described reasonable suspicion simply as “a particularized and objective basis” for suspecting the person stopped of criminal activity, (Citation omitted), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence and the belief that contraband or evidence of a crime will be found. (Citations omitted). We have cautioned that these known principles are not “finely-tuned standards”, comparable to the standards of proof beyond a reasonable doubt or proof by preponderance of the evidence. (Citation omitted). They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. (Citations omitted) (“This Court has a long established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of a Procrustean application”; “[eJach case is to be decided on its own facts and circumstances” (intemal quotation marks omitted)); Terry v. Ohio, 392 U. S., at 29, 88 S. Ct, at 1884 (the limitations imposed by the Fourth Amendment “will have to be developed in the concrete factual circumstances of individual cases”). * See Chanthasauxat, 342 F. 34 at 1276. ® State v. Wimberly, 988 So. 2d 116, 119-20 (Fla. $* DCA 2008) ® Omnelas v. U.S, 517 U. S, 690, at 695-96 (1996). Page 8 of 13The United States Supreme Court has found that a police officer may, consistent with the Fourth Amendment, briefly stop an individual who appears to be engaged in criminal activity if the officer has a reasonable and articulable suspicion that criminal activity is afoot." Moreover, a police officer may stop an individual who has committed a traffic violation. Specifically, “a traffic stop can be executed as long as the officers have reasonable grounds to suspect that the person detained was, is, or will be engaged in criminal activity.”’> Typically, a traffic infraction is committed while operating a vehicle; however, commission of a traffic infraction in Florida does not require vehicular operation.’ Moreover, “a traffic stop is a constitutional detention if it is justified by reasonable suspicion under Terry or probable cause to believe a traffic violation has occurred.....”27 When determining whether reasonable suspicion exists to believe criminal activity is afoot, “the Court must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrong doing.””* Although there must be an objective basis for suspecting wrong doing, officers may assess the facts in light of their unique training, expertise, and experience in the field.” Reasonable suspicion exists if the cumulative information of which the detaining officer is aware suggests criminal activity, even if each fact, viewed in isolation, can be given an innocent explanation.” In Illinois v. Wardlow, the United Supreme Court stated: % Terry v. Ohio, 392.U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). % US v. Rodrigues-Morales, 929 F.2d 780, 784 (I* Cir, 1991) (citing Berkemer v. McCarty, 468 U. S. 420, 439, 104 . Ct. 3138, 82 L. Ed. 24 317 (1984) (analogizing routine traffic stops to pedestrian stop-and-frisk activity pursuant to Terry). * See Fla, Stat. §316.130 (“no pedestrian shall, accept in a marked crosswalk, cross a roadway at any other place than by a route at right angles tothe curb or by the shortest route to the opposite curb [..] A violation of this Section isa non-criminal traffic infraction”). » United States v. Chanthasowcat, 342 F. 341271, 1275 (11" Cir, 2003) * United States v. Hunter, 291 F. 34 1302, 1306 (11 Cir. 2002) (internal quotation marks omitted). ® United States v. Arvizu, 534 U. 8. 266, 273-15, 122 S. Ct. 744, 151 L, Ed. 2d 740 (2002). id Page 9 of 13An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we [The United States Supreme Court] have previously noted the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis." Furtive movements, nervousness, and the fact that conduct occurs in an area known for criminal activity are all appropriate factors to consider in determining whether reasonable suspicion exists.” The United States Supreme Court in Wardlow, further explained the relevant contextual considerations in a Terry analysis as follows: Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of the store, peering into the window and periodically conferring. All of this conduct was by itself lawful, but it also suggested that individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. In addition, in considering a Motion to Suppress, the role of the trial court is to weigh the credibility of witnesses and to resolve evidentiary conflicts.” The trial court must weigh the testimony of all witnesses and determine the issue based upon the totality of the circumstances; the trial court is not required to accept at face value the testimony of any witness.*> The trial court, as fact-finder, is free to ignore or place less emphasis on certain testimony, based on * 528 U. S. 119, 124, 120 S. Ct. 673, 145 L. Ed, 2d $70 (2000) (emphasis added) (internal citations omitted), * United States v. Bullock, $10 F. 3d 342, 348 (D. C. Cir. 2007) (stating that “furtive gestures in response to the presence ofthe police can serve as the basis ofan officer's reasonable suspicion”) (infernal quotation marks ‘omited), Cert, Denied, Bullock v. U. S., 553 U. S. 1024, 128 S. Ct. 2095, 170 L. Ed. 2d 827 (2008). ® Wardlow, 528 U. 8. at 124 (internal citations omitted). * Holden v. State, 877 So. 24 80 (Fla, 5® DCA 2004); State v. Dorsey, 991 So. 24.393 (Fla. 1® DCA 2008); State v Robinson, 740 So. 249 (Fla. 1" DCA 1999); Brown v. State, 352 So. 24 60 (Fla. 4® DCA 1977). ® State v. Oakley, 751 So. 2d 172 (Fla. 2 DCA 2000); Lewis v. State, 979 So. 2d 1197 (Fla. 4" DCA 2008). Page 10 of 13credibility determinations.°° A Motion to Suppress presents issues solely for the trial court to determine and the jury has no part in the matter.°” Il. FINDINGS OF FACT AND CONCLUSIONS OF LAW The Defendant in his motion has made a prima facie showing that the officers did not have probable cause to stop the Defendant’s vehicle for running a stop sign or failing to wear a seat belt. Therefore, the burden shifts to the State to prove that the officers did have probable cause to stop the Defendant’s vehicle. There is no case law holding that the burden ever shifts back to the Defendant to show that the stop was illegal. Thus, regardless of whether or not the Defendant presented the testimony of Robinson and Dixon, the court is required to weigh the evidence presented by the State and determine whether it met its burden to show that there was probable cause to stop the Defendant's vehicle. The defense did not have the burden to prove anything in the motion hearing. The court must ‘weigh the credibility of the State’s witnesses and determine the issues in the instant case motion based upon the totality of the circumstances. The court is not required to accept at face value the testimony of any witness, including the officers.** By analogy, the court in determining the issues raised by the instant case motion has the same ability and responsibility to determine the believability of the State’s witnesses as a trial jury."® Applying the Florida Standard Jury Instructions in Criminal Cases" to the State’s witnesses in the instant case, the Court finds that the testimony of the officers in general, in Sgt. Nobles specifically, was not credible as it concerns the events leading to the stop of the Defendant's vehicle. Furthermore, after applying % Sunby v. State, 845 So. 24 1006 (Fla. $* DCA 2003). * Moore v. State, 647 So. 2d 326 (Fla. 2° DCA 1994). * Maurer v, State, 668 So. 2d 1077, 1079 (Fla. S® DCA 1996) (“A Judge acting as a fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence present; just as a jury may disbelieve evidence presented by the State even if it is un-contradicted , so too the Judge may disbelieve the only evidence offered in a suppression hearing.”). » Lewis v, State, 979 So. 2d 1197 (Fla. 4" DCA 2008). * Fla, Sud, Jury Instr. (Crim.) 3.9 “Weighing the Evidence”. Page 11 of 13common sense in considering the things contained in Fla. Std. Jury Instr. (Crim.) 3.9, the court concludes that it will not believe the “corrected” testimony of Sgt. Nobles at the motion hearing in the instant case. Sgt. Nobles’ testimony changed materially and significantly from the deposition testimony given nearly a year before the motion hearing, without any warning to the parties, even though he knew his testimony was wrong the day after his deposition. In order for Sgt. Nobles testimony to make sense and make him appear to “have an opportunity to see and know the things about which [he] testified" he had to change his story concerning his initial encounter with the Defendant. Sgt. Nobles did not seem to have an accurate memory and he acted in a way that was evasive, confrontational, argumentative and non-responsive during defense counsel’s cross-examination, Although the Defendant was not required to testify or call any witnesses to testify (in the instant case the State would have failed to meet its burden even without the Defendant calling any witnesses to testify in the motion hearing), the testimony of Robinson and Dixon provide the court further contradictions of the testimony provided by the State's witnesses. The court finds Robinson and Dixon to be credible witnesses and chooses to believe their testimony based upon the same application of Fla. Std. Jury Instr. (Crim.) 3.9. After carefully weighing the evidence and the credibility of the State’s witnesses, based upon the totality of the circumstances, in the instant case, the officers did not have probable cause to stop the Defendant’s vehicle for running a stop sign or failure to wear a seat belt. Accordingly, it is ORDERED: Defendant, Marquis Ihkeem Jerome Jackson’s Motion to Suppress is GRANTED, and the “fruits” of this unlawful stop, including any and all physical or intangible evidence secured thereby, including, but not limited to, drugs, firearm, ammunition, and statements, shall be Page 12 of 13inadmissible in any proceeding against the Defendant.” DONE AND ORDERED in Chambers, at Jacksonville, Duval County, Florida this 268 BRUCE R. aNDERSOKAR Circuit Judge day of April, 2018. Copies to: Office of the State Attorney Declan Duffy, Assistant State Attomey Anthony D. Rosati, Esquire Attomey for Defendant © Wong Sun v. United States, 371 U. S. 471, 83 S. Ct 407, 9 L. Ed. 2d 441 (1963). Page 13 of 13