IN THE CIRCUIT COURT POR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY FLORIDA
STATE OF FLORIDA
Plaintiff,
vs.
RANDALROSADO,
Defendant.
CASE NO.: l6-000275CF
MOTION TO SUPPRESS EVIDENCE IN UNLAWFUL SEARCH
COMES NOW, Defendant Randal Rosado, pursuant to Rule 3.190(hX1)(A), and moves the Court to suppress all evidence seized during an unlawful search of the Defendant’s residence located at 129 W Main Street, Goshen, New York 10924 on June 28, 2016, and states as follows:
1 . On June 28,2016, Robert Nichols, lnvestigator for the Lee County State Attorney’s Office, Robert Foley, Assistant State Attorney for the Lee County State Attorney’s Office (former FBI agent), Michael Howard, Jillian Guererra, Michael Caster and John Fanell of FBI New York Hudson Valley Squad C-37, and Detective Ryan W. Rich of the Village of Goshen Police Department conducted an unlawful search and seizure of the Defendant’s residence pursuant to 3.190(h)(1)(A) by entering, searching, and seizing
property on the premises without a search warrant.
2. The unlawful  search in violation of the Fourth Amendment to the United States constitution and Article 1 , Section 12 of the Florida Constitution is confirmed by multiple contradictory statements made under oath by Robert Nichols. As a result of the intentional lies made in these sworn statements, Nichols has committed perjury in an official proceeding, violating Florida Criminal Statue 837.02 and perjury by contradictory sworn statements in violation of Florida Criminal Statute 837021. Both crimes are third
degree felonies.
3. ln an affidavit by Robert Nichols on November 6 ,2017 , Mr. Nichols lies about the involvement he
and Robert Foley had in their participation in the unlawful entry and arrest of the Defendant, and the subsequent unlawful search and seizure. On page 6 paragraph ’16 of the sworn affidavit, Nichols states, “On June 28, 2016, at about 6:00 a.m., upon arrival at the Rosados’ residence, Agent Foley and I waited downstairs while Village of Goshen Police Detective Ryan Rich, members of Orange County Deputies Task Force and the FBI New York Hudson Valley RA Squad C37 (“Task Force Teams”) went upstairs to knock, announce, and arrest Mr. Rosado.” Despite the claims that Nichols and Foley waited downstairs and were not involved in the unlawful arrest, Nichols tells a different story during the video interrogation of  the
Defendants wife, Mrs. R   , conducted by Nichols and Foley moments after the arrest on June 28, 2016.On page 15 of the transcript of that video, Nichols describes the inside layout to the Defendant’s apartment, and on page 66 he confirms that he was acting in the capacity of a law enforcement officer without authority or.lurisdiction. Nichols states to Mrs. R You were disappointed that you’re living your life here in – in New York, and you’re doing your thing, and we, the law enforcement, are coming in and we’re invading your house during a search warrant, and arresting your husband.” On page 8 of the video transcript Nichols says to Mrs R, l know that when you were placed under arrest, and you were standing there talking, I mean I just happened to notice that there’s computers sitting in the room.” Unless Nichols can see through the ceilings while “waiting downstairs”, it is clear that he committed perjury and was physically inside the Defendant’s home. lt is also clear that he acted as law enforcement (often referring to himself as “a cop”) and participated in the entry and arrest despite additional lies in a sworn deposition on May 26, 2017 . On page 42 of the deposition transcript Nichols says, “l had nothing to do with the entry because we were in New York.” Robert Nichols has lied during multiple sworn statements, and is obviously aware that he was acting outside of his jurisdiction and authority, and is attempting to cover up his actions.
4. ln the sworn affidavits by Robert Nichols on November 6, 2017, he makes additional contradictory statements under penalty of perjury in violation of 837.021 and confirms that the search of the Defendant’s home was unlawfully executed without a warrant. On page 6 paragraph 17 of the affidavit, Nichols states,’While this knock, announce, an arrest of Mr. Rosado was carried out by the Task Force Teams pursuant to the arrest warrant, Orange County (New York) Chief Assistant District Attorney Christopher P. Borek and
lnvestigator Gary Cooper, were acquiring a search warrant to execute that same day at the Rosados’ residence from the New York State court based on probable cause.” On page 41 of his sworn deposition, Robert Nichols states, ‘Well, the New York authorities did the affidavit. l- they used my probable cause and my investigation as a foundation for their search warrant because I have no authority in New York, so they wrote up the search warrant; not me.” On page 6 paragraph 20 of the sworn affidavit from November
6, 2017, Nichols alleges, “Nothing was seized at this point, but the premises were secured pending the receipt of the search warrant.” Not surprisingly, the video interrogation of Mrs. R by Robert Nichols and Robert Foley tells a different story and confirms the search and seizure was conducted without a warrant and that Robert Nichols committed perjury, a third-degree felony.
On page 8 of the video transcript from June 28, 2016) Nichols tells the Defendant’s wife moments after the arrest, “They’re executing the search warrant over there.” How could that be if “nothing was seized” and they were simply securing the premises “pending the receipt of the warrant.”? Then on pages 82 and 83 of the video transcript, Robert Nichols and Robert Foley, employees of the state attorney’s office, further confirm the property of the Defendant and his wife were seized when they requested the passcodes for their confiscated phones and computers. On page 82 Nichols asks Mrs. R, “What is your passcode to get into your phone? Like, you know, like, your secret code. Write that down there.” “And what’s Randy’s passcode?” On page 83 Robert Foley says to the Defendant’s wife as she makes multiple attempts to exit the interrogation room, “Mrs R , one thing, real quick, as far as the computers are concerned, why don’t you give us the password for the computers as well.” “Okay. Because we don’t want to damage anything, right?” Nichols follows up, still on page 83, ‘What about his? You have two computers there; both of them are not password-protected?” Once again, the dialogue by Robert Nichols and Robert Foley confirm that the property belonging to the Defendant and his wife were seized without a warrant.
5. Where a motion to suppress an illegal search is at issue, the burden is on the moving party to make an initial showing that the search was invalid and only when that showing is made does the burden shift to the state to prove its search is valid. Miles v State, 953 So. 2d 778 (Fla. Dist. Ct. App 4th Dist. 2007)
6. A warrantless search constitutes a prima facie showing that the search was invalid which shifts to the state, on a motion to suppress, the burden of showing the search’s legality. Lewis v State, 979 So. 2d 119 (Fla. Dist. Ct. App. 4th Dist. 2008)
WHEREFORE, THE Defendant herein moves this Court to enter its order suppressing evidence due to the unlawful search pursuant to Rule 3.190(h)(1XA) and in violation of Article 1 Section 12 of the Florida Constitution and Amendment lV of the Constitution of the United States.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Clerk of
Court at l700 Monroe Street, Fort Myers, FL 33901 and to the Office of the State Attorney, 2000 Main
Street, 6th Floor, Fort Myers, FL 33902 on this 8th day of December, 2017.
By:/s/ Randal Rosado Randal Rosado Defendant 2501 Ortiz Avenue Fort Myers, FL 33905IN THE CIRCUIT COURT POR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY FLORIDA