State v. Hernandez, 3D02-324.

• Decision Date: 27 November 2002
• Docket Number: No. 3D02-324.,3D02-324.
• Citation: 841 So.2d 469
• Parties: The STATE of Florida, Appellant, v. Frank HERNANDEZ, Appellee.
• Court: Florida District Court of Appeals

841 So.2d 469

The STATE of Florida, Appellant, v. Frank HERNANDEZ, Appellee.

No. 3D02-324.

District Court of Appeal of Florida, Third District.

November 27, 2002.

Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellee.

Before JORGENSON, LEVY, and GREEN, JJ.

LEVY, Judge.

The State of Florida appeals from a trial court order granting Defendant's Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation and Courtroom Identification. We reverse.

On February 9, 1999, Manuela Valdez was looking out the window of her second floor apartment when she saw a man jump a fence and force open the patio door of her neighbor's first-floor residence. She left the window, caused the police to be notified, and returned to the window in time to see the man exit her neighbor's residence and jump a fence closer to the street. According to Ms. Valdez, the perpetrator was Caucasian, of medium height and build, not obese, and wearing a white T-shirt with short sleeves. At the hearing on the Motion to Suppress, she testified that she did not see the perpetrator's face but that she did see his profile.

The police arrived about three minutes later. One of the responding officers testified that he chased after the Defendant, and two of the responding officers testified that they yelled "police" and told Defendant to stop, but Defendant did not stop. After apprehending the Defendant, the police drove the Defendant back to the scene of the break-in to have Ms. Valdez identify him. The Defendant was taken out of the vehicle in handcuffs, and Ms. Valdez identified him from 100 feet away. The Defendant was charged by Information with burglary of an unoccupied dwelling, petit theft, criminal mischief, possession of burglary tools, and resisting an officer without violence.

On December 21, 2000, the Defendant filed a "Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation, and Courtroom Identification." The following is the text of the Motion:

THE DEFENDANT, through undersigned counsel, respectfully moves this court to suppress as evidence at the trial: (1) any and all pre-trial identifications of the defendant in police lineups, photographs, showups, or any other confrontations, and (2) all courtroom identifications of the defendant. As grounds for this motion, the defendant states:

1. The lineup, showup, photograph, and other pre-trial identifications of the defendant were obtained by police in violation of the defendant's right to counsel guaranteed by the Sixth Amendment and Due Process Clause of the Fourteenth Amendment to the United States Constitution.

2. The lineup, showup, photograph, and other pre-trial identifications of the defendant were obtained through procedures which were so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law in violation of the defendant's rights guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by Article I, Section 9, of the Florida Constitution.

3. The line-up, showup, photographs and other pre-trial identifications of the defendant were obtained by the police in violation of the defendant's right against unreasonable search and seizure guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and by Article I, Section 12, of the Florida Constitution.

4. The courtroom identifications of the defendant constitute the "fruit of the poisonous tree" of the prior unconstitutionally conducted pre-trial identifications of the defendant and are accordingly tainted with the same constitutional objections stated in paragraphs 1, 2 and 3.

WHEREFORE, the defendant moves this court to enter its order suppressing all pre-trial identifications of the defendant and to prohibit the State from eliciting from the alleged victims an in-court identification of the defendant at trial of the above-styled cause.

At the hearing on the Motion, the State argued that the motion was legally insufficient because it failed to state the particular evidence to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion was based, as required by Florida Rule of Criminal Procedure 3.190(h)(2). We agree and conclude that the trial court should have denied the motion pursuant to Florida Rule of Criminal Procedure 3.190(h)(3).

Florida Rule of Criminal Procedure 3.190(h)(2) states that "[e]very motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based." Fla. R.Crim. P. 3.190(h)(2); see also State v. Gibson, 670 So.2d 1006, 1008 n. 2 (Fla. 2d DCA 1996); Chapman v. State, 446 So.2d 1186, 1187 (Fla. 4th DCA 1984); Herring v....