STATE OF FLORIDA CASE NO.: 16-000275CF

Plaintiff,

vs.

RANDAL ROSADO,

Defendant.
__________________________/

MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO SUPPRESS EVIDENCE IN UNLAWFUL SEARCH

COMES NOW, the Defendant, Randal Rosado, with a Memorandum of Law in support of his previously filed Motion To Suppress Evidence In Unlawful Search pursuant to 3.190, and hereby states as follows:
1. The Defendant was searched and/or seized in contravention to the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Florida Constitution, and any evidence obtained because of the illegal search and/or seizure is the fruit of the poisonous tree and must be suppressed. Wong Sun v United States 371 US. 471 1963).
2. A private home is the area where a person enjoys the highest expectation of privacy under the Fourth Amendment. Clavette v State, 969 So. 2d 463, 465 (Fla. 5th DCA 2007)
3. It is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. Georgia V. Randolph, 547 U.S 103, 115 (2006)
4. If a doubt exists as to whether the officer was reasonable in concluding that a search was justified, such a doubt must be resolved in favor of the defendant whose property was searched. Silva v State, 344 So. 2D 559, 562
5. Without the presence of any exigent circumstances, the entry on subsequent search of the Defendant’s home was illegal. Any and all evidence seized as a result of this illegal search must be suppressed. See Thomas v State 405 So. 2d 462 (Fla. 3D DCA 1981) See also Diaz v State, 34 So. 3d 797 (Fla. 4th DCA 2010)
6. In the absence of exigent circumstances or permission, the police may not enter a home without a search warrant simply because they think they have probable cause to believe evidence of a crime may be found therein. Vasquez v State, 870 So. 2d. 26 (Fla. 2nd DCA 2003)
7. In ruling the search illegal, Florida’s Second District Court of Appeal states “the Fourth Amendment prohibits the police from making a warrantless search ad nonconsensual entry into a suspect’s home for the purpose of making a felony arrest unless exigent circumstances are present. “Furthermore, “in order to justify warrantless entry to prevent the imminent destruction of evidence, law enforcement officers must have objectively reasonable fear that evidence may be destroyed before they could secure a warrant. “Gnann v State, 662 So. 2d 406 (Fla. 2nd DCA See also Alderton v State.438 So. 2D 1000, 1002 (Fla. 2D DCA 198) (illegal entries into homes cannot be sanitized by the simple expedient of seeking warrants after the illegal entry has occurred and the police are confident that the contraband can be found) See also Ramos v State, 405 So. 2d. 1001 (Fla 3rd DCA)
8. Searches conducted without a warrant are per se unreasonable unless conducted within the framework of a few specifically established and well delineated exceptions. Katz v United States 389
U. S. 347, 88 S.Ct. 507, 19The L.Ed. 2d 576 (1967). The state has the burden of showing that a warrantless search comes within one of the recognized exceptions Coolidge v New Hampshire 403 U.S. 443, 91 S. Ct. 2022,29 L. Ed. 2D 564(1971); McCombs v State, 433 So 2d 4 (Fla. 2nd DCA 1983). The five basic exceptions are: (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit and (5) stop and frisk. Engle v State, 391 So. 2D 245 (Fla. 5th DC 1980)

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Clerk of Court at 1700 Monroe Street, Fort Meyers, FL 33901 and the Office of the State Attorney, 2000 Main Street, 6th Floor, Fort Myers, Florida 33902 on this¬ 8th day of December, 2017.

By:/s/ Randal Rosado
Randal Rosado
Defendant
2501 Ortiz Avenue
Fort Myers, FL 33905