Can the State Benefit From the Illegal Activities of the Police?

Our criminal justice system punishes two parties–the government, and citizens (defendants). The government gets punished when it does something illegal in order to obtain evidence. Theoretically, such unconstitutional things don’t happen, but we live in an imperfect world, and in order to deter the government from illegal searches and seizures we criminal defense lawyers get to “suppress” illegally obtained evidence.

Today we’re going to discuss a Motion to Suppress in a fleeing and attempting to elude case. As you probably already know, motions ask the judge to do something. In a Motion to Suppress, a criminal defense attorney asks the court to suppress a piece of evidence. Sometimes, the effect of suppressing a key piece of evidence will be that the whole case must be dismissed. Other times, suppression simply makes life more difficult for the prosecutor. Either way, I’m happy.

In State v. Kirer, the defendant/driver wasn’t breaking any traffic laws, but he failed to stop when the cop behind him turned on his lights, sirens, and P.A. system. 120 So. 3d 60 (Fla. 4th DCA 2013). Of course, once the P.A. system comes on, it should be no surprise that you’re about to encounter one pissed off cop. The second nasty result of an officer wielding his P.A. system is that you tend to receive several more tickets than you deserve. Getting back to Kirer’s case, he failed to stop in a timely manner, but the statute does not tell us how much time we have to stop. Is two minutes of failing to pull over a felony fleeing charge? Three minutes? Four? The problem here is “timing” and physics–time is relative, scientifically speaking (if it even exists at all, it is now called “spacetime”). Sure, I’m not qualified to go any further with this concept, but you get the point. Fleeing and attempting to elude charges are often based upon the mere opinion of a frustrated cop screaming through the P.A. for you to pull over. That being said, “cop time” is always very short. If you don’t pull over instantly, law enforcement will assume you are fleeing and attempting to elude them. Many of us have seen the Rodney King beat down, YouTube is full of bad cop behavior, so it seems reasonable to pull our vehicle into a safe, well lit location, right?. Is there any law that you MUST pull over on the side of a dangerous highway with cars routinely exceeding the 70 mph limit? Well, yes, there’s a fleeing charge–and it’s a felony.

Why did this officer want to stop Kirer’s car? Well, deputies were called out to a “suspicious incident” involving a vacant house. Nothing criminal here, just ‘suspicious’. As the police arrived, Kirer was pulling his car out of the vacant house driveway and leaving. The deputy saw this, got one car length behind him, and immediately turned on lights, sirens, and P.A. system. Kirer never drove more than 10mph, but during the so-called “fleeing”, Kirer made five turns and the entire incident took “just under five minutes”. Id at 61. No careless driving. Driving at or under the speed limit. Under five minutes. Obeyed all stop signs. No danger to anyone. But, arrested on a serious felony when all was said and done. Your taxpayer dollars hard at work. Does such legal driving–but failure to stop for just under five minutes–constitute a felony fleeing and eluding?

We’re not going to answer the question of whether or not Kirer’s driving constituted the felony of fleeing and attempting to elude. Instead, we’re going to focus on what right the government had–if any–to stop Kirer’s vehicle in the first place. Yes, this is the primordial soup of criminal defense, it all begins with the traffic stop. If the stop is bad, there’s a good chance the whole case will get thrown out. If the government has no right to stop Kirer’s car, all of the evidence gained from that stop is “suppressed”. Even Kirer’s identity. If the jury cannot be told the identity of the person who was driving Kirer’s car because that evidence was illegally obtained, the case must be dropped. And, that’s just what happened at the trial level. Kirer’s defense attorney filed a motion to suppress, arguing that the stop was illegal. The judge agreed, and suppressed Kirer’s identity. The state appealed. The question on appeal goes to heart of how our Constitution is enforced against our government. The government isn’t supposed to get away with illegal conduct, they are “punished” through the suppression of evidence (sometimes called “fruits of the poisonous tree”).

The logic behind enforcement of our Constitution through suppression of evidence goes something like this: “in order to deter law enforcement officers from violating the constitutional rights of citizens with impunity by employing unconstitutional law enforcement methods, it is necessary for the courts to see that the State receives no benefit from such unlawful conduct even if relevant evidence must be rendered inadmissible and a guilty citizen be not prosecuted or punished.” Judge Cowart’s dissenting opinion in Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988, an old Judge Stroker case, for those of you who go back that far in Orange County). This quote was from the Green case dissenting opinion of Judge Cowart. Green involved a fleeing situation similar to Kirer’s, and Judge Cowart explains what’s at stake here: “Can a citizen’s criminal conviction stand squarely upon the unconstitutional action of a State law enforcement officer? To allow the State to benefit from unconstitutional police action is to encourage that action and to undermine the citizen’s rights to freedom, liberty, and privacy. . . . [thus] when a police officer without a lawful purpose and without lawful authority directs a citizen to stop his vehicle a citizen either does not have a constitutional right to not stop or does not have a constitutional right to assert his constitutional right to not stop.” Green, at 482-483. Stay with me here….

American citizens have the right to disobey an unlawful police command. The stop of Green’s vehicle (which led to his fleeing charge) and the stop of Kirer’s vehicle (which led to his fleeing charge) were both illegal. Both unconstitutional. Unfortunately, the holding in Green was that Green had no right to flee his unlawful stop. The same decision came from the appeals court in Kirer. Even though the police had no right to stop Kirer, even though law enforcement’s attempt to stop Kirer was illegal and unconstitutional (extra redundant, I know), even though Kirer never sped, and obeyed all traffic rules–the appeals court believes this is perfectly legal. Apparently, the appeals court is watering down our constitutional rights (an understatement, by the way) by not permitting citizens to refuse to obey illegal police commands. As the law stands now, the government is “criminalizing and penalizing the exercise or assertion of that right, such as when the citizen refuses to obey an illegal police direction that he relinquish his constitutionally guaranteed freedom.” Green, at 483.

Unfortunately for Kirer (and freedom loving Floridians) the appeals court found that citizens are not entitled to slowly, legally, and safely resist illegal police conduct. The focus of their decision seems to be that the police witnessed a “new” crime, fleeing and eluding, and as such, witnessing this new crime entitled the police to stop Kirer. The court reasoned, incorrectly, of course, that “the legality of the initial action by the police became irrelevant when the defendant committed the crime of fleeing and attempting to elude.” Kirer at 63, citing Green. Ok. Courts may simply ignore illegal police conduct. Why have a Constitution at all if it has no bite? I’m pretty sure there are several middle eastern countries with constitutions that say all the right things, but if you can’t punish the government for doing some illegal–the words aren’t worth the paper they’re written on.