In re: Amendments to the Florida Small Claims Rules

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Chavis Ziegler v. State of Florida

SC06-589

THE GREAT GREAT STATE OF
FLORIDA AND THIS HONORABLE
COURT.
>> GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIEND AND
WELCOME TO THE ORAL ARGUMENT
SCHEDULE FOR MONDAY JANUARY
8th.
WE'RE PLEASED TO SEE THAT
OUR INTERNS HAVE ARRIVE JOIN
US FOR THE SPRING SEMESTER.
WE HOPE YOU WILL FIND THE
ARGUMENT INFORMATIVE.
WEIR READY TO BEGIN OUR
FIRSTS.
THERE ARE SOME FACTUAL
ISSUES IN THIS CASE IT
APPEARS, THOUGH, THAT YOU
PROBABLY NEED TO ADDRESS
THOSE.
PLEASE USE YOUR TIME WISELY.
WE HAVE A LOT OF QUESTIONS
AND WANT TO BE SURE YOU HAVE
AN OPPORTUNITY TO GET YOUR
FULL PRESENTATIONS OUT WHILE
YOU ARE HERE.
WE'RE READY TO PROCEED.
MR. PATTERSON.
>>.
>> MAY IT PLEASE THE COURT
MY NAME THE PHIL PATTERSON.
WE REPRESENT THE PETITIONER'S
CHAVIS STKAOEGLER AND
TRISTAN ELLIS.
>> THIS IS WHAT I WOULD LIKE
YOU TO FOCUS ON AND ALSO THE
STATE.
ONE OF THE CRITICAL FACTS IS
WHETHER THE OFFICER ASKED
FOR IDENTIFICATION BEFORE
THE WINDOW WAS ROLLED DOWN.
AND DID THE TRIAL COURT MAKE
A FINDING AS TO THAT ISSUE
AS TO THE SEQUENCE OF WHAT
OCCURRED AND IS THAT A
CRITICAL FACT IN OUR
DECISION AS TO EITHER ISSUE
1 OR ISSUE 2?
>> THIS CASE IS UNIQUE THE
SENSE THAT EVERYTHING THAT
TRANSPIRED IS CAPTURED ON
VIDEOTAPE AND AUDIOTAPE.
>> RIGHT AND WE HAVE THAT
VIDEOTAPE HERE.
>> AND IT'S CLEAR THAT THE
OFFICER STOPPED THE CAR, AND
NOTICED THE TAG WAS GOOD.
WENT TO THE WINDOW, WRAPPED
ON IT WITH HIS MAG LIGHT AND
SAID, GOT SOME ID, MA'AM.
AT THIS POINT THE WINDOW WAS
LOWERED.
THE PASSENGER WAS RESPONDED
THAT HE HAD NO IDEA -- ID
AND THE OFFICER PUT HIS HEAD
INSIDE THE WINDOW AND AT
THAT POINT HE SMELLED
MARIJUANA.
>> IS THAT ALSO CLEAR FROM
THE TAPE THAT HE PUT HIS
HEAD INSIDE?
>> YES.
YES IT IS.
AND IT'S ALSO CLEAR FROM THE
RO'S DEPOSITION.
>>, DIAZ THE FIRST PART
WOULD BE A VIOLATION.
THAT IS ASSUMING THAT HE DID
ASK FOR IDENTIFICATION THAT
DIAZ SAYS NO.
THE ONLY THING YOU ARE
SUPPOSED TO DO IS EXPLAIN
THE REASON FOR THE STOP.
>> CORRECT.
OKAY.
NOW UNDER THE SECOND AND SO
THERE'S REALLY NO CONFLICT
WITH DIAZ BECAUSE THE FIRST
DISTRICT RECOGNIZES
THAT -- DID THEY NOT?
>> TO THAT POINT THERE COULD
BE NO CONFLICT.
THE CONFLICT ARISES WHEN THE
DCA HELD IT WAS PERMISSIBLE
FOR THE OFFICER TO ASK FOR
IDENTIFICATION RATHER THAN
TO EXPLAIN WHY HE HAD
STOPPED THE CAR AND THAT
THESE PEOPLE WERE FREE TO
GO.
BUT THE DIAZ OPINION STATES
THAT THE OFFICER CAN ONLY
EXPLAIN TO THEM WHY HE MADE
THIS STATEMENT.
OTHER THAN THE FIRST
DISTRICT SAID ONLY AFTER HE
SMELLED THE MARIJUANA AND
THEN DEVELOPED PROBABLE
CAUSE WAS IT PERMISSIBLE TO
THEN GO FURTHER.
I'M SORRY I DIDN'T GET.
>> I THOUGHT THE FIRST
DISTRICT ACKNOWLEDGED THERE
WOULD BE A DIAZ VIOLATION
BUT THAT UNDER -- THEY USE
INEVITABLE DISCOVERY, BUT
POSSIBLY THEY MEANT
INDEPENDENT SOURCE.
THAT ONCE HE SMELLED
THE -- ONCE HE SMELLED THE
MARIJUANA, THERE THEN WOULD
BE PROBABLE CAUSE TO PROCEED
WITH AN ARREST.
>> IF THE OFFICER HAD WALKED
UP TO THE VEHICLE AND
SMELLED BURNED MARIJUANA
SMOKE, THIS WOULD HAVE BEEN
IN THE ANDERS BRIEF I
BELIEVE.
HE CERTAINLY WOULD HAVE HAD
PROBABLE CAUSE TO MOVE THE
OCCUPANTS FROM CAN CAR.
>> BE MORE PRECISE ABOUT
THAT.
IF THE OFFICER HAD WALKED UP
TO THE AUTOMOBILE, AND ASKED
TAPPED ON THE WINDOW AND
THEN IT COME DOWN AND THEN
AFTER THE WINDOW CAME DOWN I
GUESS SORT OF A COMMON SENSE
WAY WE WOULD THINK THAT THE
ODOR FROM THE AUTOMOBILE
WOULD NOT EMANATE FROM THE
AUTOMOBILE UNTIL THE WINDOW
WAS RETRACTED AND CAME DOWN
SO THE OFFICER APPROACHED
THE AUTOMOBILE, TAPPED ON
THE WINDOW, THE WINDOW COMES
DOWN, AND THEN THAT IS -- AT
THAT POINT THE DETECTION
OF --
>> NO, SIR.
>> WELL THAT'S WHAT I'M
ASKING YOU.
THAT IS THAT YOU MENTIONED A
MINUTE AGO ANY SORT OF A
SEMIDRAMATIC FASHION, AT
LEAST, THAT THE VIDEOTAPE
SHOWS THE OFFICER STEURBGING
HIS HEAD INTO THE -- TO THE
VEHICLE.
WOULD YOU -- REALIZING THAT
WE HAVE THE VIDEO HERE,
WOULD YOU GIVE US YOUR
CHARACTERIZATION OF THAT AND
HOW RELEVANT THAT IS TO THE
DETECTION OF THE ODOR.
>> I HAD A DIFFICULT TIME
MAKING THE VIDEOTAPE PLAY.
I -- ULTIMATELY I DID GET IT
TO PLAY AND I COULDN'T GET
IT TO PLAY A SECOND TIME.
AS I RECALL -- ACTUALLY WHAT
I'M RELYING ON IS THE
OFFICER'S DEPOSITION
TESTIMONY ON THAT POINT
WHERE HE SAID THE FIRST TIME
HE SMELLED THE MARIJUANA
SMOKE WAS AFTER HE PUT HIS
HEAD INSIDE THE CAR.
I -- I MAY HAVE TO BACKTRACK
ON SAYING THAT THE VIDEOTAPE
SHOWS THAT.
BUT HE DIDN'T -- THE WINDOW
IS CLEARLY LET DOWN, THE
PASSENGER RESPONDS TO HIS
DEMAND FOR ID AND HE AT THAT
POINT HE STILL HASN'T
SMELLED ANYTHING.
I DON'T KNOW --
>> WHETHER THERE'S AN
APPRECIABRE PERIOD TIME
WHICH OTHER THINGS ARE GOING
ON IN THE DETENTION, IT
WOULD BE YOUR POSITION
BEFORE THERE WOULD BE ANY
DEDUCTION OF THE ODOR OF
MARIJUANA.
>> YES, I THINK IT WAS
ALMOST TWO MINUTES AFTER THE
CARS PULLED TO THE SIDE OF
THE ROAD BEFORE HE SMELLED
MARIJUANA.
>> SO IT WOULD BE YOUR
POSITION THAT WAS BEYOND ANY
REASONABLE TIME JUST TO MAKE
A COMMENT ABOUT THE TAG AND
TO LEAVE THE SCENE.
>> I THINK HAD THE OFFICER
TOLD THEM I COULDN'T SEE
YOUR TAG, BUT NOW I REALIZE
THAT IT'S LAWFULLY PLACED
THERE, YOU ARE FREE TO GO --
>> REGARDLESS OF THE CONTENT
OF THE OFFICER'S METHOD,
THERE'S SOME AMOUNT OF TIME
THAT IT WOULD TAKE TO CONVEY
THAT AND IT SEEMS LIKE IT
WOULD BE A RELEVANT FACTOR
IF IMMEDIATELY UPON THE
WINDOW COMING DOWN THE ODOR
COMES FROM, YOU KNOW THE SWR,
IT WOULD -- FROM THE
INTERIOR, IT WOULD SEEM,
THEN TO CAST DOUBT ON THE
AMOUNT OF TIME, YOU KNOW
THAT HE WAS THERE IF THE
ODOR EMANATED IMMEDIATELY.
AS SOON AS THE WINDOW COMES
DOWN I CAN SMELL MARIJUANA,
THAT DOESN'T REALLY -- NOW
IT WOULD ALMOST APPEAR NOT
TO MAKE A HECK OF A LOT OF
DIFFERENCE AS TO WHAT HE WAS
GOING TO SAY OR WHAT HIS
PURPOSE WAS THERE.
I WOULD TAKE ISSUE WITH THAT
AND GO FURTHER AND SAY
THAT'S ACTUALLY NOT WHAT
HAPPENED.
HAD THE WINDOW BEEN LOWERED
IN THE IMMEDIATELY SMELLED
MARIJUANA SMOKE THAT WOULD
BE ONE THING, BECAUSE HE
WOULD HAVE DEVELOPED
PROBABLE CAUSE TO BELIEVE --
>> THAT'S WHO -- WHAT I'M
ASKING YOU, THOUGH.
THAT WHETHER OR NOT THIS
VIDEO, PLUS THE TESTIMONY OF
THE OFFICER WOULD SUPPORT A
FACTUAL POSITION, REALLY
FAVORABLE TO THE STATE THAT
WITH THE WINDOW DOWN THAT
THE OD OR WAS OBVIOUS.
>> NO, IT WAS NOT.
>> LET ME GO BACK TO
SOMETHING.
WE'RE HERE, FIRST OF ALL I
ASKED YOU WHETHER THERE WAS
CONFLICT WITH DIAZ AND YOU
SAID THAT THE FIRST DISTRICT
HAD FOUND THAT IT WAS
PERMISSIBLE FOR THE OFFICER
TO ASK THE DEFENDANT FOR
IDENTIFICATION.
THE -- THEY SPECIFICALLY SAY,
ALTHOUGH OFFICER BROWN FEELS
IMPERMISSION -- IMPERMISSIVELY
ASKED FOR THE
IDENTIFICATION.
SO THEY ACKNOWLEDGE THAT
DIAZ WOULD NOT ALLOW FOR THE
IDENTIFICATION TO BE ASKED
FOR AT THE TIME OF THE STOP.
WOULD YOU NOW AGREE THAT DID
NOT -- IN THE STATEMENT
CONFLICT DIAZ?
WHEN THEY SAY "ALTHOUGH
OFFICER BROWN
IMPERMISSIONABLY ASKED FOR
THE IDENTIFICATION?"
>> YES.
>> NOW THE ONLY THING IS THE
QUESTION AS TO THE TIMING OF
WHETHER CERTAINLY IF IT IS
PERMISSIBLE UNDER DIAZ TO GO
OVER TO THE VEHICLE ONCE
IT'S DETERMINED THAT THERE
IS NO SRAOEUR HRAEUGS AND
EXPLAIN THE
REASON -- VIOLATION AND
EXPLAIN THE REASON ISN'T IT
CERTAINLY REASONABLE THAT IN
EXPLAINING THE REASON THAT
THEY WOULD TAP ON THE
PASSENGER'S WINDOW AND THE
PASSENGER WOULD ROLL THE
WINDOW DOWN IN ANY EVENT.
>> I DON'T THINK THAT'S
REASONABLE OR NECESSARY.
BUT THE PEOPLE INSIDE THE
CAR COULD CERTAINLY HEAR THE
OFFICER.
WELL, IT SEEM -- WELL,
BECAUSE THE QUESTION
IS -- IF -- IF WE ASSUME IT
IS REASONABLE THAT -- IF AN
COMES UP AND IS ABOUT TO
TALK TO OCCUPANTS, THAT
THOSE OCCUPANTS WOULD ROLL
THE WINDOW DOWN.
THE TIMING ISSUE IS WHAT I'M
CONCERNED ABOUT AND WHETHER
WE'RE GOING TO REWEIGH THE
EVIDENCE.
BECAUSE THE FIRST DISTRICT
SAID THAT THE TRIAL COURT
DETERMINED THAT OFFICER
BROWNFIELD SMELLED MARIJUANA
WHEN HE WENT TO AN PLANTE'S
STOPPED VEHICLE.
SO THAT -- AN PLANTE'S
STOPPED VEHICLE.
SO THAT'S THE FACT OF AT
LEAST THE FIRST DISTRICT ON
THE FACE OF THE OPINION HAS
MADE A DETERMINATION.
WHAT DO WE DO IN A SITUATION
WHERE YOU SAY, WELL, NO YOU
WILL LOOK AT THIS VIDEO AND
YOU ARE GOING TO COME UP
WITH SOME DIFFERENT
CONCLUSIONS ABOUT IT.
ISN'T THAT AS FAR AS FOR OUR
REVIEW OF A CASE AT THE
SUPREME COURT FOR US TO
REWEIGH OR LOOK AT THE VIDEO
AND SAY, YOU KNOW THE TRIAL
COURT GOT T WRONG.
THE FIRST DISTRICT GOT IT
WRONG.
WE WILL GO WITH
MR. PATTERSON.
IS THAT REALLY THE FUNCTION
OF THIS COURT TO SORT OF
RESET OUT THE FACTS?
>> THE CONFLICT BETWEEN THE
FIRST DISTRICT OPINION AND
THIS COURT'S OPINION IN DIAZ
IS YOUR OPINION SAYS AND I
QUOTE THE SHERIFF'S DEPUTY
COULD LAWFULLY MAKE PERSONAL
CONTACT WITH MR. Z -- DIAZ
ONLY TO EXPLAIN THE REASON
FOR THE INITIAL STOP.
AND THE FIRST DCA IS
ALLOWING HIM TO GO UP TO THE
WIND WITHO AND DO EXACTLY
WHAT THE OFFICER IN DIAZ DID
AND THIS COURT FOUND
UNACCEPTABLE AND THAT'S
REQUEST THE ID.
>> I JUST DON'T SEE THEY SAY
THAT.
WE CAN QUIBBLE WITH IT.
THEY SAID ALTHOUGH THEY
IMPERMISSIONABLY ASKED FOR
IDENTIFICATION.
I THINK THE ASSUMPTION OF
THE FIRST DISTRICT AND THE
TRIAL COURT WAS THAT IN WHAT
YOU WOULD BE DOING IN
Z -- DIAZ TO EXPLAIN THE
REASON FOR THE STOP, THERE
COULD BE INEVITABLY SOME
CONTACT WITH THE PASSENGERS,
WHICH WOULD THEN IN THIS
CASE GIVE RISE TO HIM HAVING
SMELLED THE MARIJUANA.
>> I DON'T THINK DIAZ
PERMITS HIM TO GO UP AND
CHAT UP THE OCCUPANTS OF CAR
ONCE HE FOUND OUT HE HAS NO
LEGAL BASIS FOR DETAINING
THOSE PEOPLE.
>> WHAT WOULD HAPPEN.
YOU WOULD GO UP AND WHAT
WOULD THE OFFICER DO?
I MEAN, IF WE NEED TO
CLARIFY DIAZ.
>> IDENTIFIES I DIDN'T SEE
YOUR TAG IN THE BACK WINDOW.
YOU'RE FREE TO GO.
>> HOW WOULD HE SAY THAT TO
THE OCCUPANTS OF CLOSED
WINDOW.
>> THE SAME WAY YOU DO WHEN
YOU SAY "GOT SOME ID ON YOU,
MA'AM?"
>> YOU BELIEVE THE CRITICAL
FACT IS WHETHER OR NOT THE
OFFICER HAD THE RIGHT TO
HAVE THE WINDOW COME DOWN.
HE.
>> HE HAD NO RIGHT TO MAKE
THEM LOWER THE POSITION.
>> SO THAT'S YOUR POSITION.
SO THIS CASE IN YOUR VIEW
WILL TURN ON WHETHER OR NOT
WE AGREE WITH YOU THAT THE
OFFICER HAD NO RIGHT TO HAVE
THE WINDOW COME DOWN.
>> THAT'S MY CONTENTION.
AND KEEP IN MIND THAT THE
OFFICER TESTIFIED HE DIDN'T
SMELL THE MARIJUANA SMOKE
WHEN THE WINDOW CAME DOWN.
HE SMELLED --
>> BUT HE ASKED THEM TO
LOWER THE WINDOW.
WASN'T THAT MORE A VOLUNTARY
ACT.
HE ASKED THEM FOR THE I.D.
AND THEN IN THE PROCESS THEY
LOWERED THE WINDOW.
>> ONE HAD I.D.
THE PASSENGER DENT.
>> AND SO.
>> IT'S OBVIOUSLY YOU NEED
THE LOWER THE WINDOW TO SHOW
THE DRIVER'S LICENSE.
>> WHAT TOOK PLACE?
YOU MAINTAIN THAT THIS ALL
TOOK LIKE A TWO-MINUTE
PERIOD BEFORE HE ACTUALLY
SMELLED THE MARIJUANA.
SO WHAT -- ARE YOU
MAINTAINING THAT ASKING FOR
ID TOOK TWO MINUTES?
>> FROM THE TIME THAT THE
CAR STOPPED HE WALKED UP,
SAW THE TAG WAS GOOD.
CONTINUED ON UP, KNOCKED ON
THE WINDOW.
LOWERED THE WINDOW AND THEY
HAVE THE CONVERSATION.
I'M BASING THAT ON THE
TRANSCRIPT OF THE
SUPPRESSION HEARING.
I DID NOT TIME IT MYSELF.
BUT THE PASSENGER NEED
TO -- DID THE PASSENGER NEED
TO SHOW IDENTIFICATION?
>> IF THE OFFICER ASKED UP
AND ASKED HIM FOR SOME I
WOULD THINK HE WOULD BELIEVE
HE HAD TO.
>> YOU ARE INTO YOUR REBUT
PHYSICAL YOU WOULD LIKE TO
SAVE THAT TIME.
>> THANK YOU.
>> GOOD MORNING MAY IT
PLEASE THE COURT.
DANIEL DAVID ON BEHALF OF
THE ATTORNEY GENERAL'S
OFFICE.
IN TERMS OF THE QUESTIONING
OF TIME AND FACT FOUND BY
THE TRIAL COURT.
THE TRIAL COURT'S ORDER IS
VOLUME 1 OF 5152, PARAGRAPH
5 AND I WILL GUST QUOTE THIS
BRIEFLY.
WHEN THE OFFICER WENT TO THE
STOP SLASHED PULLED OVER
VEHICLE THAT'S WHEN HE
SMELLED THE BURNED CANNABIS
MARIJUANA SMELL.
WHETHER HE WAS THERE FOR A
FEW SECONDS OR LONGER IS NOT
SIGNIFICANT.
THE ODOR HAD BEEN DETECTED
AND PROBABLE CAUSE WAS
EXISTING.
>> NOW, WAS THERE TESTIMONY
AT THAT HEARING TO SUPPORT
THAT CONCLUSION?
>> THAT IS THE WAY THAT
YOU'VE READ THAT IT APPEARS
THE TRIAL COURT IS SAYING
JUST AS SOON AS THE OFFICER
GOT NEAR THE WINDOW OF THE
AUTOMOBILE NEAR THE DRIVER'S
SIDE THERE THAT HE PICKED UP
THE ODOR OF THE MARIJUANA.
IS THAT A CORRECT
CHARACTERIZATION OF WHAT YOU
JUST READ?
>> THAT'S A DIRECT QUOTE ON
PARAGRAPH 5.
WELL, LET ME --
>> WAS THERE TESTIMONY THAT
SUPPORTS THAT?
THAT IS IN ESSENCE WHAT
YOU'VE JUST READ AT LEAST
THE WAY THAT I UNDERSTOOD IT
WAS THAT THE OFFICER
APPROACHED THE DRIVER'S SIDE
AND IMMEDIATELY DETECTED THE
ODOR OF MARIJUANA.
WAS THERE TESTIMONY TO THAT
EFFECT?
>> THE TRIAL COURT BASED ITS
RULING AS IT SAID IN ITS
ORDER.
IT HAD THE VIDEOTAPE.
THE DEPOSITIONS OF DEPUTY
BROWNFIELD WHO WAS THE MAIN
OFFICER IN THIS.
DEPUTY JACKSON AND ALSO
THERE WAS --
>> I'M LOOKING FOR SOMETHING
MORE SPECIFIC.
YOU ARE OBVIOUSLY MUCH MORE
FAMILIAR WITH THE RECORD.
WHAT ARE -- THAN I AM AT
THIS STAGE.
BUT WOULD YOU POINT TO
EITHER THE OFFICER SAYING
LITERALLY WELL JUST AS SOON
AS I GOT NEAR THE AUTOMOBILE
I COULD SMELL MARIJUANA AND
YOU KNOW REGARDLESS OF ANY
WINDOW COMING UP OR DOWN OR
YOU KNOW THAT, THAT
WAS -- OR THAT THE VIDEO
SHOWS HE JUMPED BACK OR
SOMETHING, IN OTHER WORDS
WHAT -- WHAT PARTICULAR
PIECE OF EVIDENCE IS THERE
IN THE RECORD THAT WOULD
SUPPORT A CONCLUSION THAT
THE TRIAL COURT MADE THERE?
>> WHAT I WOULD POINT TO
YOUR HONOR IS THAT THE
VIDEOTAPE WHICH I REVIEWED
AND BY MY CALCULATIONS AS
REFLECTED IN THE UPPER
RIGHT-HAND CORNER OF THE
VIDEOTAPE THERE'S A
COUNTDOWN CLOCK IN MILITARY
TIME.
BY MY NOTATION ON THIS THE
OFFICER WAS AT THE CAR AT
22:54:09.
HE TAPPED ON THE WINDOW WITH
HIS RIGHT HAND AT 22:54:011.
HIS HEAD IN DOWN OR NEAR THE
WINDOW AT 22:54:15.
BEFORE HE TAPPED ON -- ON
THE WINDOW, WHEN HE TAPPED
ON THE WINDOW BEFORE THE
WINDOW WAS ROLLED DOWN DID
HE ASK FOR TIE DOMI?
>> NO, YOUR HONOR.
MY REVIEW OF THE RECORD AND
AGAIN I WOULD DEFER TO THE
COURT, MY RECOLLECTION IS
THAT, THAT HE DID NOT ASK
FOR ID UNTIL THE WINDOWS
ROLLED DOWN AND HE PLACED
DOWN NEAR IT AND IF YOU
WATCH THE VIDEOTAPE AT THAT
ALMOST PRECISE MOMENT THERE
IS A LARGE KNOT OF TRAFFIC
MOVING BY IN THE OTHER TWO
LANES AND YOU CAN EVEN HEAR
THE NOISE ON HIS -- I GUESS
THE TERM IS HIS LAPELL
MICROPHONE.
THERE IS AUDIO AND VISUAL AS
WELL.
THE STATE'S POSITION IN THAT
IN BENDING DOWN -- EVEN IF
HE STUCK HIS HEAD IN THE
VEHICLE WAS AN ENTIRELY
REASONABLE AND PERMISSIBLE
THING TO DO GIVEN THE --
>> DOES THE VIDEO -- DID HE
BEND DOWN OR DID HE PUT THE
HEAD IN THE WINDOW.
WHAT DOES THE VIDEOTAPE
SHOW?
>> YOUR HONOR, I CAN'T
HONESTLY REPRESENT DO YOU
THAT YOU CAN MAKE A CLEAR
CONCLUSION ON THIS.
IT'S A BLACK AND WHITE
VIDEO.
IT'S KIND OF GRAINY IN THE
CAR IS 50 FEET AWAY.
DO FLATLY CONCEDE THAT HE'S
STUCK HIS HEAD DOWN NEAR
THERE.
I DO SON -- CONCEDE IN HIS
DEPOSITION TESTIMONY WHICH
WAS RELIED ON BY THE TRIAL
COURT PAGE 8, HIS EXACT
PHRASING IS "THEN APPROACHED
THE VEHICLE" AS I STUCK MY
HEAD THROUGH THE WINDOW
THAT'S WHEN I DETECTED THE
ODOR OF MARIJUANA.
>> DOES IT MAKE A DIFFERENCE
IF HE ACTUALLY INVADED THE
VEHICLE BY PUTTING HIS HEAD
IN THE WINDOW?
>> NO, YOUR HONOR I DON'T
BELIEVE SO FROM THE
CIRCUMSTANCES OF THE CASE.
AND, AGAINST, AS
MR. PATTERSON HAS INDICATED
THE VIDEO MAY BE OUR BEST
WITNESS.
THIS IS 7 -- I-75 NORTHBOUND
IT'S ABOUT 11:00 P.M.
AND AS HE IS TAPPING ON THE
WINDOW YOU CAN SEE A LARGE
KNOT OF CARS AND SEMITRAILER
AND OTHER TRAFFIC SPEEDING
BY AT 0 TO 0 MILES PER HOUR
AND YOU CAN HEAR THE RUSH
AND THE ROAR THE VEHICLES ON
HIS LAPELL MOUNTED
MICROPHONE.
SO AT THAT POINT, I DO NOT
SEE HOW ANY REASONABLE
PERSON COULD BE EXPECTED TO
HAVE A CONVERSATION WITH
SOMEONE UNDER THOSE FIELD
CONDITIONS UNLESS YOU GOT
RIGHT DOWN NEAR THEIR MOUTH
AND WERE ABLE TO HEAR WHAT
THEY HAD TO SAY.
>> THE INFERENCE BEING THAT
THE PURPOSE OF EITHER
LEANING DOWN OR STICKING THE
HEAD IN OR NEAR THE
INDEPENDENT -- WINDOW WAS TO
FACILITATE THE
COMMUNICATION?
>> SIMPLY TO HEAR.
>> IT'S THE STATE'S POSITION
IF -- IF WE SAY THAT DIAZ
LIMITED NARROWLY THE AMOUNT
OF TIME, THE PURPOSE THAT
THIS DID NOT EXCEED ANY
REASONABLE TIME AND THAT THE
ODOR WAS DETECTED WITHIN A
VERY BRIEF TIME.
IT WOULD HAVE BEEN THE SAME
AMOUNT OF TIME IF THE
MESSAGE WAS BEING CONVEYED.
>> THAT IS THE STATE'S
POSITION BY MY COUNT
THE -- IT WAS A PERIOD OF 22
SECONDS FROM THE TIME THE
WINDOW WAS ROLLED DOWN UNTIL
HIS HEAD WAS ARGUEABLY IN
THE WINDOW UNTIL HE BACKED
UP -- BACKED UP AND WALKED
AWAY.
>> WHY SHOULDN'T WE ACCEPT
THE DEFENDANT'S POSITION
THAT IT WAS CLEAR HERE THAT
THE OFFICER REALLY WAS
AFFECTING A DETENTION AND
WAS SEEKING IDENTIFICATION,
WAS GOING BEYOND DIAZ AND
THAT WE SHOULD SIMPLY SAY
BECAUSE THE OFFICER REALLY
WAS VIOLATING THE DIAZ RULE
THAT THE STOP WAS
IMPLEMENTED.
>> OUR POSITION YOUR HONOR
IS THAT WE HAVE NO
INDICATION OF BAD FAITH
ORELINGABLE TEMPORARY TAG IS
PERMISSIBLE UNDER DIAZ.
IF YOU BRING THIS ONE STEP
FURTHER BEYOND THE RECORD
AND HYPOTHESIS THAT THE
POLICEMAN WAS ON A FISHING
EXPEDITION.
WHAT HE DID WAS PERFECT I
WILL PERMISSIBLE UNDER DIAZ
BUT FOR AND WE CONCEDE HE
COULDN'T IS ASK FOR THE
IDENTIFICATION.
UNDER DIAZ HE COULD HAVE
LAWFULLY STOPPED THE CAR.
UNDER DIAZ HE COULD HAVE
GONE TO THE PASSENGER SIDE
AWAY FROM THE PREDOMINANT
FLOW OF TRAFFIC IN THE
INTERSTATE LANE, IT WOULD BE
PERFECT I WILL PERMISSIBLE
TO TAP ON THE WINDOW TO
FACILITATE COMMUNICATION.
AND UNDER DIAZ HE WOULD HAVE
BEEN AUTHORIZED TO HAVE A
DIALOGUE IN EFFECT, I'M
SORRY I STOPPED YOU.
I THOUGHT YOUR TAG WAS BAG.
>> WHATEVER OTHER COMMENTS
THE STATE WOULD CHARACTER
RYCE THOSE AS HARMLESS.
>> EVEN -- HARMLESS
OR -- EVEN IF IT HAS BEEN
PERMISSIBLE.
EVEN IF HE HAD BEEN ODORING
A DIALOGUE THAT WAS PERFECT
I WILL PERMISSIBLE UNDER D I
I AZ.
I'M SORRY I STOPPED YOU.
I THOUGHT YOUR TAG WAS BAD.
NOW I SEE IT'S GOOD.
AS HE WAS DUCKING DOWN
STICKING THE HEAD IN WINDOW.
PROBABLE CAUSE WOULD HAVE
PRESENTED ITSELF.
AT THAT POINT THE --
>> IS THAT WHAT THE RULING
OF THE FIRST DISTRICT WAS.
>> THAT'S MY READ OEUFPBG
THE FIRST DISTRICT.
I AGREE WITH JUSTICE
PARIENTE'S INTERPRETATION.
I READ THAT FOUNDDY AS
BECAUSE OF OLEFACTORY
PROPABLE CAUSE DURING THE
EXPLANETARY PHASE WHEN HE
SHOULD HAVE BEEN SAYING
SORRY I STOPPED YOU.
DO YOU THINK YOU NEED TO
CLARIFY?
THEY USED INEVITABLE
DISCOVERY.
DOCTRINE.
AND THE INEVITABLE DISDOS
LIVE DOCTRINE REQUIRES AN
INVESTIGATION ALREADY BE
UNDER WAY AT THE TIME OF THE
STOP.
THERE'S ALSO A CLOSELY
RELATED DOCTRINE NICKS
REFERS TO IT AS INDEPENDENT
COURSE.
WHICH IS IF IT COULD BE
DISCOVERED BY MEANS
INDEPENDENT OF ANY
CONSTITUTIONAL SRAOEULATION.
IS IT THE FIRST DISTRICT
USED THE WORD AND OR THE
TERM INEVITABLE DISCOVERY.
DO YOU CONTEND THAT IT IS
INEVITABLE DISKOF I THAT,
THAT DOCTRINE CONTROLS BASED
ON YOUR VERSION OF THE FACTS
HERE OR IS IT INDEPENDENT
SOURCE?
>> YOUR HONOR, WE HAVE
ARGUED THAT AS A SECONDARY
POSITION.
OUR PRIMARY POSITION IS THAT
THE FIRST DISTRICT'S
DECISION WAS PERFECT I WILL
GOOD UNDER DIAZ BECAUSE IT
WAS ADEQUATELY DISTINGUISHED
ON THE FACTS IN THE RECORD
AND THEIR POSITION
SUCCINCTLY IS ONCE THE
MARIJUANA ODOR WAS
DISCOVERED DURING THIS
PERMISSIBLE PERSONAL
ENCOUNTER THAT CHANGED THE
ANALYSIS.
>> LET ME ASK A QUESTION.
LET'S ALTER THE FACTS A
LITTLE BIT AND UNDER DIAZ
LET'S ASSUME THAT EVERYTHING
IS IDENTICAL HERE.
THEY COME UP AND THEY NOTICE
THE LICENSE IS A VALID
LICENSE.
RATHER THAN TAPPING ON THE
WINDOW AND TRYING TO MAKE
THE STAND OR CIRCLING THE
CAR WITH HIGH INTENSITY
LIGHT LOOKING INSIDE THE CAR,
SEEING WHAT THE CONTENT MAY
BE.
AND THROUGH THE PROCESS OF
THIS BE IT A FEW MINUTES
FIVE MINUTES TEN MINUTES,
THEY SEE SOME KIND OF
SUSPICIOUS PLANT.
BENEATH SOME THINGS IN THE
BACK.
WHAT IS THE -- WHAT'S THE
PARADIGM TO WHICH WE LOOK AT
THAT KIND OF SCENARIO AS
COMPARED WHERE WE ARE HERE?
>> YOUR HONOR, I WOULD AGREE
IF YOU STRETCH OUT THE TIME
FRAME TO SOME LARGE AMOUNT
OF TIME AND I KNOW THAT TIME
LIMIT IS NOT FIRMLY FIXED.
BUT ASSUMING WE DON'T HAVE
AN INORDINATE AMOUNT OF
TIME.
SAY FIVE MINUTES AND HE'S
WALKING AROUND WITH HIS
FLASHLIGHT.
THERE'S BEEN NUMEROUS
DECISIONS OF THE UNITED
STATES SUPREME COURT THAT
HAVE HELD THAT AIDING A
HUMAN CENSUS THROUGH SUCH
COMMON THINGS AS EYEGLASSES,
FLASHLIGHT AND BACK TPHOPLLERS
DON'T CONSTITUTE A SEARCH OR
DON'T ENHANCE THE INVASION
OF PRIVACY.
>> SO UNDER DIAZ THAT WOULD
BE PERMISSIBLE UNDER YOUR
READING AND INCLUDING THIS
CASE.
UP TO THE TIME -- IT'S A
TIME FACTOR AS OPPOSED TO
THE KWAU DAYTIVE ASPECT, THE
QUANTITATIVE TIME.
>> THE QUANTITATIVE TIME
WOULD BE MY CONCERN.
BUT EVEN UNDER DIAZ I DON'T
SEE ANYTHING UNDER DIAZ OR
THE JURISPRUDENCE OF THIS
COURT THAT WOULD PRECLUDE
THE OFFICER FROM WALKING UP
TO THE STOPPED VEHICLE WITH
A FLASHLIGHT AND POINTING
HIS FLAG -- FLASHLIGHT
INSIDE TO SEE WHETHER
THERE'S A WEAPON OR
SOMETHING IN THERE FOR HIS
CONCERN.
AND I HONEST STPHESLY DON'T
KNOW HOW TO ADDRESS THE REST
OF YOUR POINT ON THE TIME
FRAME.
WE DON'T HAVE THIS HERE IN
THIS RECORD.
AND --
>> I'M TRYING TO UNDERSTAND
REALLY WHAT IS OUR WHAT'S
THE FRAMEWORK THAT WE DO?
THE ATPHALSITION?
IS IT JUST FLIP A COIN AND
WHERE IT LANDS THAT KIND OF
THING OR DO WE -- ARE THERE
PARAMETERS?
DIAZ SAID YOU ARE NOT TO GET
INVOLVED IN DOING THIS.
YET YOU GET INVOLVED IN
DOING THIS AND IT PRODUCES.
SO WHAT'S THE PARADIGM THAT
YOU LOOK AT TO EVALUATE WHAT
HAPPENS AFTER THAT?
>> I WOULD SAY THAT THE
PARADIGM SHOULD BE THAT
UNDER DIAZ ANALYSIS YOU CAN
STOP A CAR FOR AN ILL
LEGIBLE TEMPORARY TAG.
I DON'T SEE ANYTHING IN
Z -- DIAZ OR JURISPRUDENCE
OF THIS COURT THAT WOULD
CONCERN OF AN OFFICER
WALKING UP WITH FLASHLIGHT
ALL ILLUMINATED FLASHING
FLASHLIGHT INTO THE
PASSENGER COMPARTMENT OF THE
CAR TO SEE WHAT THE SAFETY
SITUATION IS, AND HAVING A
BRIEF PERSONAL CONTACT WITH
THE OCCUPANTS OF THAT
VEHICLE.
AND AS I SAY WHERE I HAVE
TROUBLE DRAWING THE LINE IS
BRIEF.
IF YOU WANT TO ARBITRARILY
PICK A TIME OUT OF THE SKY
AND SAY TWO MINUTES.
LET'S JUST SAY THAT OR FIVE
MINUTES.
I THINK THAT WOULD BE
PERFECTLY PERMISSIBLE UNDER
THE DIAZ PARADIGM.
>> WHAT IS YOUR POSITION ON
WHETHER THERE'S A CONFLICT
AND AN ANSWER TO JUSTICE
PARIENTE'S DISCUSSION.
ON YOUR POSITION THERE'S NO
CONFLICT ON ISSUE 1 OR 2?
>> CANDIDLY I DON'T SEE A
CONFLICT BETWEEN THIS
COURT'S DECISION IN DIAZ AND
THE DECISION OF THE FIRST
DISTRICT BELOW.
THE WAY I READ THE FIRST
DISTRICT BELOW THEY
RECOGNIZED THE CONTROLLING
PRECEDENT OF THIS COURT IN
DIAZ.
THEY APPLIED DIAZ BUT
RE -- REASON PWHR FOUND
BASED ON THE FACTS THEY HAD
IN THEIR RECORD THAT THE
PRESENTATION OF OLFACTORY
PROBABLE CAUSE DURING THE
EXPLANTORY PHASE MADE DIAZ
DISTINGUISHABLE.
>> IS THERE A CONFLICT
WHETHER THE INEVITABLE
DISCOVERY RULE REQUIRE THERE
BE AN ONGOING INVESTIGATION.
>> AGAIN, I DON'T SEE THAT.
I'VE READ THE DECISION OF
THIS COURT IN SUCH CASES AS
MOODY AND TPEUDZ PASS
ELECTRIC.
THE STATE'S POSITION IS THAT
THIS EXPLANTORY PHASE AS
I'VE TERMED IT UNDER DIAZ OF
EXPLAINING WHY YOU ARE
STOPPED AND WHY YOU ARE ABLE
TO -- WHY I STOPPED YOU AND
NOW YOU ARE ABLE TO GO IN
THE EXPLANTORY PHASE WHEN
THE INDEPENDENT PROBABLE
CAUSE PRESENTS IT ELF AT
THAT POINT A CRIMINAL
INVESTIGATION SPRINGS INTO
EFFECT OR IT'S BEEN HELD
NUMEROUS TIMES BY THIS COURT
IN THE UNITED STATES SUPREME
COURT THAT PROBABLE CAUSE IS
UNDER A TOTALITY OF THE
CIRCUMSTANCES AND I THINK IT
VERY FAIRLY AND VERY WELL
FIT WITHIN THE TOTALITY OF
THE CIRCUMSTANCES ANALYSIS
THAT WHEN YOU ARE EXPLAINING
SORRY I STOPPED YOU AND YOU
ARE FREE TO GO AND THROUGH
YOUR OLFACTORY SENSES YOU
ARE PRESENTED WITH PROBABLE
CAUSE.
I THINK THAT FITS IN AS
WELL.
>> YOU DON'T MAKE A
DISTINCTION BETWEEN THE
INDEPENDENT COURSE -- SOURCE
DOCTRINE AND THE INEVITABLE
DISCOVERY DOCTRINE?
>> AS I UNDERSTAND THOSE TWO
DOCTRINES WHICH ARE THE
UNITED STATES SUPREME COURT
TELLS US IN NICKS THEY ARE
CLOSELY INTERTWINED.
INEVITABLE DISCOVERY EVEN IF
YOU HOLD IT IT HAS TO BE AN
ONGOING INVESTIGATION AT THE
TIME, INDEPENDENT SOURCE
WOULD PERMIT IT BECAUSE
INDEPENDENT SOURCE AS I
BELIEVE THIS COURT STATED IN
FITZPATRICK ELECTRIC IS THE
FACT IN POSSESSION OF THE
POLICE AT THE TIME WOULD
HAVE NECESSARILY LED TO THE
DISDOVE -- DISCOVERY OF THE
EVIDENCE COMPLAINED OF.
THE EVIDENCE HERE WAS
OBVIOUS WITH THE DRUGS
AND -- IN THE PEOPLE'S CAR.
IN AN INDEPENDENT SOURCE THE
POLICEMEN HAD A CAR STOPPED
FOR A VALID REASON.
HE WAS IN A LAWFUL PUBLIC
PLACE AT THE SIDE OF THE
ROAD.
HE DID A LAWFUL THINGS
ASKING HIM TO ROLL DOWN THE
WINDOW.
AT THAT POINT HE WAS
PRESENTED WITH THE OLFACTORY
PROBABLE CAUSE.
SO A WORSE CASE SCENARIO
INDEPENDENT SOURCE WOULD
HAVE ALLOWED IT AND UNDER
SAY FAIR READING OF THE
TOTALITY OF THE
CIRCUMSTANCES INEVITABLE
DISCOVERY.
>> MY CONCERN ABOUT DIAZ IS
THAT WE UNDERSTOOD THAT
THERE OLD -- WOULD BE
CIRCUMSTANCES ESPECIALLY AT
NIGHT WHERE OFFICERS WOULD
NOT BE ABLE TO CLEARLY SEE
THE TAG.
THE TEMPORARY TAG UNTIL THE
VEHICLE WAS STOPPED.
IT WAS SORT OF KIND OF A
CATCH-22, BECAUSE THE TAGS A
LOT OF THEM EVEN THE ONES
THAT THE STATE ISSUES JUST
AT NIGHT YOU WILL HAVE
DIFFICULTY SEEING THEM
ON -- IF THE VEHICLE IS
MOVING.
SO WE'VE GOT THAT FIRST
ISSUE OF ALL RIGHT IT'S OKAY
TO PULL OVER THAT VEHICLE.
AND BUT YOU SEE BEFORE YOU
EVEN APPROACH THE CAR THAT
THERE IS NO VIOLATION.
UH-HUH.
>> THEN THE NEXT STEP IS,
WELL IT'S -- YOU KNOW IT
WOULD BE KIND OF STRANGE IF
AN OFFICER PULLS THE CAR
OVER TO NOT HAVE ANY CONTACT
WITH THE OCCUPANTS.
BUT WHAT I'M DISTURBED ABOUT
IS EVEN IN THE RESPONSE JUST
LEWIS' HYPOTHETICAL IS THAT
SOMEHOW THAT THIS CONTACT IS
BECOMING A FULL-FLEDGED STOP,
IS JUST A STOP ITSELF WAS
AUTHORIZED WHEN IT WASN'T.
SO WHAT IF WE KEPT THIS CASE,
WHAT IS IT THAT WE COULD SAY
THAT WOULD ENSURE THAT
OFFICERS WOULD UNDERSTAND
THAT A STOP UNDER DIAZ IS
REALLY NOT A STOP IDENTICAL
TO A STOP IF THE VEHICLE WAS
A SPEEDING VEHICLE OR ANY
OTHER TRAFFIC VIOLATION THAT
WOULD REALLY MINIMIZE THE
INTRUSION TO WHAT DIAZ
INTENDED WHICH WAS SORT OF A
COMMON SENSE THING OF SAYING
LET'S -- WE GOT TO TELL THE
DRIVER OR THAT HE OR SHE IS
FREE TO GO, WE THOUGHT YOU
HAD A TEMPORARY TAG
VIOLATION, BUT YOU DON'T.
DO YOU HAVE ANY SUGGESTIONS
CAN.
>> YOUR HONOR, MY SUGGESTION
WOULD BE AND I WOULD AGREE
COME PLEALY WITH YOUR HONOR
THAT IF THIS POLICEMAN
WALKED UP, ROLLED DOWN THE
WINDOW AND SAID LET ME SEE
SOME IDEA -- I.D.
TAKEN THE I.D.
THAT PERSON HAS SUSPENDED
LICENSE.
I WOULD HAVE WRITTEN A
CONCESSION OF ERROR UNDER
DIAZ.
WHAT DISTINGUISHES DIAZ IS
DURING THAT PERMISSIBLE
PERSONAL CONTACT PHASE WHERE
HE SHOULD HAVE SAID I'M
SORRY I STOPPED YOU.
I CAN SEE YOUR TAGS IS GOOD.
IF DURING THAT BRIEF
PERSONAL CONTACT PERIOD THE
OFFICER IS ABLE TO SEE
INDEPENDENT OR SENSE THROUGH
HIS NOSE INDEPENDENT
VERIFIABLE PROBABLE CAUSE OF
AN EXISTENCE OF A CRIME THAT
SHOULD BE THE TRIGGER THAT
SETS US APART FROM DIAZ.
>> IF IT'S SIGNIFICANT IN
THIS CASE THAT THE VIDEO
REVEALS THAT HE
DOESN'T -- EXPLAIN THE BASIS
OF THE STOP UNTIL AFTER HE
ASKED FOR THE IDEFICATION.
>> NO, I DON'T, YOUR HONOR.
AS I READ THIS VIDEOTAPE, HE
DID NOT ASK FOR ID UNTIL
AFTER HE HAD, HAD HIS HEAD
DOWN AND SMELLED THE
MARIJUANA.
THAT'S ALSO SUPPORTED BY HIS
DEPOSITION TESTIMONY PAGE OF
HIS DEPOSITION, WHICH WAS
PLACED IN THE RECORD.
AND RELIED ON BY THE TRIAL
COURT, THEN APPROACHED THE
VEHICLE, AS I STUCK MY HEAD
THROUGH THE WINDOW THAT'S
WHEN I DETECTED THE ODOR OF
MARIJUANA.
WENT AHEAD AND ASKED FOR ID
AND ALL OF THAT.
>> AND THEN WHAT DUD -- DOES
HE SAY AS AN AFTERTHOUGHT BY
THE WAY I DIDN'T REALLY STOP
FOR THAT REASON.
WHAT IS HIS TESTIMONY CAN.
>> IT IS -- IN THE VIDEOTAPE
IT'S COUPLE OF MINUTES LATER
FOUR OR FIVE MINUTES LATER.
I DON'T HAVE THAT TIME FRAME
DOWN EXACT HE MAKES SOME
STATEMENT THAT I STOPPED YOU
BECAUSE THE TAG WAS BAD.
THE TAG SHOULD HAVE BEEN ON
THE REAR BUMPER AND THE
STATE CONCEDES THIS CASE IT
DOESN'T REQUIRE ON THE REAL
BUMPER.
HE MAKES SOME SORT OF
EXPLANATION I STOPPED YOU
BECAUSE I COULDN'T SEE YOUR
TAG.
AND I'M WRITING YOU A
WARNING CITATION FOR THAT
ILLEGAL -- ILL LEGIBLE
TEMPORARY TAG.
THAT'S CONSIDERABLY LATER IN
THE PROCESS AFTER THE
MARIJUANA ODOR HAS BEEN
DETECTED AND THE ID
REPLACED.
SO SIMPLY PUT SUCCINCTLY THE
STILL WOULD ASK THE COURT TO
AFFIRM THE FIRST DISTRICT OF
THE COURT BELOW THEY
ADEQUATE DISTINGUISHED DIAZ
ON THE RECORD AND WE WOULD
ASK THIS COURT TO AFFIRM.
THANK YOU.
>> REBUTTAL.
>> IT DOES APPEAR WE HAVE
SOME FACTUAL DISPUTE STILL
BREWING IN THIS CASE.
BUT APPARENTLY HAS NOT BEEN
AT LEAST RESOLVED TO THE
PARTY'S SATISFACTION.
BECAUSE WE HAVE DIFFERENT
VERSIONS OF FACT, WHICH IS
VERY DIFFICULT AT THIS
STAGE.
>> THE STATE'S POSITION THAT
HE WALKED UP TO THE CAR AND
SMELLED MARIJUANA THAT'S NOT
WHAT THE OFFICER'S OWN
TESTIMONY WAS.
THERE'S CONFLICT IN THIS
CASE BETWEEN DIAZ AND THE
FIRST DCA'S OPINION BECAUSE
THE FIRST DCA'S OPINION
ALLOWS THE CONTINUED ILLEGAL
DETENTION TO CHECK FOR
IDENTIFICATION ONCE THE
OFFICER HAS NO GROUNDS
WHATSOEVER TO BELIEVE THE
OCCUPANTS OF THIS CAR HAVE
DONE ANYTHING WRONG.
DIAZ SAID YOU CANNOT DO
THAT.
ONCE YOU DETERMINE YOU HAVE
NO REASON TO STOP THE CAR,
YOU CAN ONLY TELL THE
OCCUPANTS ABOUT THE MISTAKE
AND ALLOW THEM TO BE FREE TO
GO.
THE OCCUPANTS ARE NOT
REQUIRED TO ENGAGE ANY
CONVERSATION IN THE OFFICER
IS NOT ALLOWED TO MAKE AN
EXPLORATORY ENTRY INTO THE
CAR THAT HE SE -- THAT IS
NOW ILLEGALLY STOPPED
BECAUSE THE OFFICER REALIZES
HE HAS NO LAWFUL BASIS FOR
HAVING STOPPED IT.
>> BUT DIDN'T THE DISTRICT
COURT RECOGNIZE THAT, THAT'S
WHAT DIAZ HELD AND THAT HE
HAD NO AUTHORITY TO ASK FOR
IDENTIFICATION?
DIDN'T THEY RECOGNIZE THAT?
>> I REALLY HAVE NEVER BEEN
CLEAR ON THE DECISION.
>> IF THEY HADN'T RECOGNIZED
THAT -- IF THEY HADN'T
RECOGNIZED THAT THEY
WOULDN'T HAVE TO GO TO ISSUE
2, THE INEVITABLE DISCOVERY.
THE ONLY REASON THEY WENT TO
INEVITABLE DISCOVERY WAS
BECAUSE THEY FOUND A
VIOLATION.
>> THE WAY I READ DIAZ IS IT
SEEMED TO ALSO RISE -- THE
WAY I READ THE DCA'S OPINION
IT SEEM AUTHORIZE WHAT THIS
COURT PROHIBITED.
AND THAT'S WHY I MOVE THIS
COURT TO REVIEW THE CASE.
IT ALSO WRITES INSTEAD OF
GOING UP TO THE CAR AND
SAYING, GENTLEMAN I MADE A
MISTAKE YOU'RE FREE TO GO HE
WALKED UP TO THE CAR AND
SAID GIVE MY DYE THAI AND
THEN GO INSIDE THE CAR AFTER
HE HAD IT DETAINED WITH NO
LEGAL BASIS.
NOW HE'S IN THE CAR.
>> THAT'S WHY HE -- WE'RE
DISCOST -- DISKUING THE
INEVITABLE DISCOVERY.
DIDN'T THE COURT RECOGNIZE
THAT THE -- THE COURT AT
OFFICER VIOLATED DIAZ HAD
GONE BEYOND DIAZ AND WENT
BEYOND THAT AND SAID,
HOWEVER, HE WOULD HAVE
DISCOVERED IT ANY WAY.
>> THAT'S NOT THE WAY I READ
THE DCA'S OPINION.
I FOUND THE DCA TO SAY THAT
THE CONDUCT WAS PERMISSIBLE
UNDER DIAZ AND EVEN
HYPOTHETICALLY ALMOST -- IF
IT WASN'T IT WOULD HAVE BEEN
DISCOVERED PURSUANT TO THE
INDEPENDENT SOURCE DOCTRINE.
>> READ US THE PART OF THE
FIRST DISTRICT OPINION THAT
YOU CONTEND SAYS WHAT YOU
JUST CHARACTERIZED THAT.
BECAUSE I THINK ALL OF US
ARE HAVING DIFFICULTY
FINDING THAT THE FIRST
DISTRICT OPINION.
THAT IS FINDING THE REAL
CONFLICT WITH DIAZ THAT YOU
ARE ASSERTING.
>> THE DCA.
>> IN OTHER WORDS THE FIRST
DISTRICT FACTUALLY -- WHO
KNOWS WHETHER THEY GOT IT
RIGHT OR WRONG OR THE
EVIDENCE IS SUPPORT IS
THERE.
I'M HAVING DIFFICULTY
FINDING SOME STATEMENT
INCONSISTENT WITH DIAZ ON
THE FACE OF THE FIRST
DISTRICT'S OPINION.
HELP ME WITH THAT
DIFFICULTY.
WHERE IS IT THAT YOU SAY
THEY WENT BEYOND?
>> IT SAYS OFFICER
BROWNFIELD HAS THE LEGAL
AUTHORITY TO MAKE PERSONAL
CONTACT AND BE IN A POSITION
TO SMELL THE MARIJUANA.
THAT'S WHERE I THINK -- THAT
COURT -- THAT OPINION
DEVIATES FROM DIAZ.
WE IN DIAZ WE CERTAINLY AT
THE VERY LEAST IMPLIED THAT
THE OFFICER HAD A LEGAL
AUTHORITY TO MAKE THAT
PERSONAL CONTACT IN ORDER TO
EXPLAIN THE PURPOSE OF THE
STOP INITIALLY.
>> RIGHT.
BUT NOT TO KNOCK ON THE
WINDOW, HAVE THE
INDEPENDENTER LOWERED PUT
YOUR HEAD IN --
>> AT -- WHERE DO THEY
SAY --
>> SO YOU ARE -- YOUR
DISAGREEMENT WITH THE FIRST
DISTRICT IS THIS THING ABOUT
THE WINDOW BEING LOWERED?
>> RIGHT.
THE REQUEST FOR
IDY -- IDEFICATION WHICH
REQUIRED THE WINDOW TO
BILLOWERED WHICH MADE IT
POSSIBLE FOR THE OFFICER
TO -- MAKE AN ENTRY INTO THE
VEHICLE WITHOUT A WARRENT OR
SUS SPEUGS OF ILLEGAL
ACTIVITY.
>> WHERE DOES THE FIRST
DISTRICT SAY ANYTHING ABOUT
THE WINDOW BEING LOWERED?
>> IT'S -- I HAVE THE SLIP
OPINION.
IT'S ON PAGE 3 WHERE OFFICER
BRANDFIELD HAS THE LEGAL
AUTHORITY TO MAKE PERSONAL
CONTACT WITH APPELLANTS AED
ON THE BE IN A POSITION TO
SMELL THE MARIJUANA, WHICH
REQUIRED THE WINDOW TO BE
LOWERED --
>> NOW YOU ARE GOING -- I'M
ASKING YOU -- WHERE IS THE
LANGUAGE IN THE OPINION --
>> THAT'S WHAT I'M READING
FROM.
READ THAT, AGAIN I'M LOOKING
A TT SAME OPINION.
WHAT IS IT.
>> "ACCORDING TO THE SUPREME
COURT RULING OFFICER
BRANDFIELD HAS THE LEGAL
AUTHORITY TO MAKE PERSONAL
CONTACT WITH APPELLANTS SO
FAR SO GOOD.
AND TO BE IN A POSITION TO
SMELL THE MARIJUANA.
WRONG.
BECAUSE THAT WHEN HE KNOCKED
ON THE WINDOW ASKED FOR DYE
THAI.
THEY HAD TO LOWER THE WINDOW
AND I CONTINUE SHOULDN'T
HAVE PUT HIS HEAD INSIDE THE
CAR.
THAT'S WHAT THE OFFICER DID.
THE WINDOW WENT DOWN.
THAT'S WHERE I'M SAYING
YOU'RE REALLY GOING BEYOND
THE OPINION.
IN TERMS OF WHETHER -- WHERE
THEY WENT WRONG.
I'M TRYING TO IN OTHER WORDS
YOU ARE SAYING THIS IS
INCORRECT LEGAL STATEMENT.
THAT ACCORDING TO THE
SUPREME COURT'S RULING
OFFICER BROWN FELT HAD THE
LEGAL AUTHORITY TO MAKE
PERSONAL CONTACT WITH AN
PLANTE AND TO BE IN A
POSITION TO SMELL THE
MARIJUANA AT THAT IS
INCORRECT LEGAL STATEMENT.
>> TO BE IN A POSITION TO
SMELL THE MARIJUANA IS UNDER
DIAZ.
>> YES.
>> AND IN THE NEXT PARAGRAPH
THE COURT -- COURT SAID
"ALTHOUGH OFFICER BROWNFIELD
IMPERMISSIBLE ASKED FOR
APPELLANTS IDENTIFICATION
THE TRIAL COURT DETERMINED
THAT THE CONTRABAND WASN'T
REQUIRED TO BE SUPPRESSED.
AND THEN IT DISCUSSES THE
INEVITABLE DISCOVERY RULE.
THAT'S WHERE IT MUSHES OUT
AND IT SEEMS TO RECEDE FROM
THE PREVIOUS STATEMENT
SAYING IF THAT'S WRONG, THEN
THE INEVITABLE DISCOVERY
DOCTRINE.
>> ALTHOUGH THE RO ASKED FOR
APPELLANT'S IDENTIFICATION.
ISN'T THAT A RECOGNITION
THAT UNDER DIAZ HE WAS
PROHIBITED FROM ASKING FOR
IDENTIFICATION?
>> YES, IT IS.
IT SEEMS TO CONTRADICT THE
SENTENCE WE WERE DISCUSSING
FROM THE PREVIOUS PARAGRAPH
WHERE HE SAID HE COULD BE IN
A POSITION TO MAKE THEM ROLL
DOWN THE WINDOW.
>> WELL, ALL THAT SEEMS TO
BE SAYING HE COULD
BE -- WHEN YOU MAKE PERSONAL
CONTACT YOU ARE AT THE
WINDOW EITHER THE DRIVER OR
PASSENGER'S SIDE WINDOW IN
ORDER TO MAKE THE PERSONAL
CONTACT.
AND THEN YOU'RE IN A
POSITION TO SMELL THE
MARIJUANA.
>> NO.
>> THE COURT DID NOT HOLD I
I DON'T SEE IT HERE ANYTHING
ABOUT OPENING THE WINDOW
REQUIRING THE WINDOW TO BE
OPENED OR ANYTHING LIKE
THAT.
>> IF YOU APPLY THE FACTS OF
THE CASE TO THE WRITTEN
OPINION, THAT'S EXACTLY WHAT
THEY ARE SAYING.
BECAUSE THAT'S WHAT THE
FACTS ARE.
THE WINDOW WENT DOWN IN THE
OFFICER TESTIFIED HE DIDN'T
SMELL ANYTHING UNTIL HE PUT
HIS HEAD INSIDE.
IF IT'S OKAY FOR HIM TO BE
IN THAT POSITION TO SMELL
THE MARIJUANA THEN IT'S OKAY
TO LOWER THE WINDER TO PUT
THE HEAD IN THERE.
>> YOU ARE OF THE OPINION
THAT HE PUT HIS HEAD INTO
THE VEHICLE?
>> NO THE OPINION DOESN'T
SAY THAT.
THE RECORD DOES.
THERE'S -- THERE'S NO --
>> LET'S SAY WHAT -- WHAT
WAS ARGUED BEFORE THE TRIAL
COURT?
WAS IT ARGUE BAD OVER THE
TRIAL COURT THAT THIS -- IT
WAS ILLEGAL BECAUSE THE
OFFICER STUCK HIS HEAD
THROUGH THE WINDOW AND
VIOLATED THAT PRIVACY?
>> IT WAS ARGUED IN THE
TRIAL COURT THE
START -- STATE ARGUED THAT
THE LICENSE PLATE WAS NOT
PROPERLY DISPLAYED AND
THEREFORE THEY COULD
NOT -- COULD MAKE EVERYBODY
GET OUT OF CAR IN A TRAFFIC
STOP.
AND THE DEFENSE COUNSEL
ARGUED THAT ANYTHING BEYOND
TELLING THE PEOPLE THAT
THEY -- THERE HAD BEEN A
MISTAKE MADE AND THEY WERE
FREE TO GO VIOLATED DIAZ.
>> MY POINT IS THE TRIAL
COURT UNDER -- WASN'T
REQUIRED TO MAKE A FACTUAL
DETERMINATION WHETHER THE
TROOPER PUT HIS HEAD THROUGH
THE WINDOW OR NOT.
THAT WAS NOT THE ISSUE
BEFORE THE TRIAL COURT.
>> THE TRIAL COURT CONCLUDED
THE TAG WAS IMPROPERLY
DISPLAYED AND AT THAT POINT
THEY HAD A VALID INFRACTION
THEY COULD MAKE PEOPLE GET
OUT OF THE CAR.
>> WITH OUR ASSISTANCE YOU
HAVE EXHAUSTED ALL YOUR TIME
INCLUDING THE REBUTTAL TIME.
>> THANK YOU.
THANK YOU VERY MUCH.
WE APPRECIATE THE ARGUMENT
ENLIGHTENMENT ON THIS AND WE
WILL TAKE THE CASE UNDER
ADVISEMENT.
THANK YOU VERY MUCH.