Lyons Snyder & Collin. Trial Attorneys.


Sample Motion to Suppress – Illegal Stop / No Probable Cause

By Philip M. Snyder

Lyons, Snyder & Collin posted a copy of a Motion to Suppress recently filed by our criminal defense attorneys in the Circuit Court of Broward County, Florida.  Lyons, Snyder & Collin have deleted the names of the Defendant and Police Officers for privacy reasons.   The basis of the Motion is that law enforcement (Fort Lauderdale Police) did not have probable cause to effectuate a traffic stop of our client’s vehicle.   Please note that the spacing and/or citations are slightly distorted as a result of posting the Motion to the website. 


STATE OF FLORIDA,                                               Case No.:        xx-xxxxxCF10A            Plaintiff,                                                                     Judge:             PORTER


xxxxxx, xxxxxx,                                                                                                                                   Defendant.                                                                                                                   _____________________/


            COMES NOW the Defendant, by and through his undersigned attorney pursuant to Rules 3.190(h), (i), Florida Rules of Criminal Procedure, and moves this Honorable Court to suppress all evidence stemming from the illegal stop and arrest of the Defendant and as grounds in support of said motion states as follows:


  1. On February 25, 2011 at approximately 11:30 P.M., Fort Lauderdale Police Department Officers —– and —– effectuated a traffic stop of the Defendant’s vehicle at the 600 block of NW 5th Avenue for the offense of “music audible over 100 ft”, Florida Statue 316.3045(1)(a).[1]
  2. In 2005, Florida Statue 316.3045(1)(a) was amended to include music plainly audible from 25 feet, not 100 ft.[2]
  3. Seemingly, Officers —– and —– have not cited a driver for this citation since the amended statute took effect.
  4. Officers —– and —– did not effectuate a stop for any other reason or traffic violation, notwithstanding Florida Statue 316.3045(1)(a). 
  5. Fort Lauderdale Police Department did not receive any complaints or 911 phone calls regarding any loud music emanating from the Defendant’s vehicle.
  6. The Defendant allegedly gave Officers —– and —– consent to search.
  7. Upon exiting his vehicle, the Defendant allegedly had a crack pipe in his hand.
  8. The Defendant was subsequently arrested for possession of cocaine.
  9. The Defendant submits that his vehicle was emanating music at “normal levels” and that law enforcement effectuated a pre-textual stop of his vehicle.
  10. The Defendant submits that he did not give consent to search his person or his vehicle.
  11. The Defendant submits that law enforcement did not have probable cause to effectuate a stop of his vehicle in violation of Florida Statue 316.3045(1)(a).
  12. Officers —– and —– will not be able to prove that the “alleged noise” was “plainly audible” at 100 feet, or at 25 feet for that matter.
  13. The Defendant submits that Florida Statue 316.3045(1)(a) is unconstitutionally vague and invites arbitrary enforcement.
  14. Of note, the 600 block of NW 5th Avenue is a commercial warehouse district and not a residential area.
  15. Of note, the Defendant has a “stock” and not an upgraded radio in his vehicle.   A “stock” radio is a radio installed by the manufacturer.

 Memorandum of Law

I.   Fort Lauderdale Police Did Not Have Probable Cause to Effectuate a Traffic Stop

The Officer’s actions in this case must be scrutinized carefully in light of the Constitutional requirements which must be adhered to when there is any search and seizure by a State official.  The Officer’s actions in this matter does not pass constitutional muster because he did not have probable cause to stop the vehicle for any traffic infraction.

In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court of the United States held that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual involved.  Although Whren and its progeny have stood for the position that an officer’s reason(s) to initiate a stop are immaterial and such a stop is reasonable when the officer has probable cause to believe that a traffic violation has occurred, it is still necessary to consider the officer’s motivations and scrutinize their credibility to ensure that the traffic violation actually occurred.      The objective test in determining the constitutional validity of a traffic stop asks only whether any probable cause for the stop existed, making the subjective knowledge, motivation or intention of the individual officer involved wholly irrelevant. Id.

When one turns to the facts of the present case, one cannot come to the conclusion that under the totality of the circumstances, any reasonable officer would have stopped Mr. xxxxxx vehicle for a violation of “Music Audible over 100 feet.”    The Fort Lauderdale Police Department’s stop of Mr. xxxxx’s vehicle was pre-textual as Mr. xxxxx was not committing any violation of the law. Of significance, the Fort Lauderdale Police did not: (1) measure the distance from their vehicle to the Defendant’s vehicle to ensure that they had probable cause to effectuate a traffic stop under Florida Statute 316.3045(1)(a); (2) use any mechanism to gauge the level of sound emanating from the Defendant’s vehicle at the time of the stop; and (3) use any mechanism to record the maximum level of sound that could emanating from the Defendant’s stock radio.

In White v. State, 619 So.2d 429 (Fla. 1st D.C.A., 1993), the First District Court of Appeals held (under very similar facts) that a traffic stop of the Defendant for “playing the radio too loud” was pre-textual and not supported by the evidence.  The Court held that the State  could not prove that under such facts and circumstances that a reasonable officer would have stopped the vehicle absent an additional invalid purpose. [3]

Although White was decided Pre-Whren, the case is still considered “good law” and the reasoning behind the Court’s ruling remains significant.   Seemingly, the Court placed a considerable amount of weight in that “the police officer in White was unable to show that his actions were consistent with his usual practice or with the actions of a reasonable officer” or that “police officers (in general) ever stopped vehicles for such a purpose [loud music].”  [4] 

It is hard for undersigned counsel to imagine that the Fort Lauderdale Police Department’s usual practice is to effectuate traffic stops for the offense of “loud music” on vehicles legally driving in commercial warehouse districts at night.  It is more plausible to believe that Officers —– and —– effectuated a traffic stop on a black male with dread locks driving in a high-crime area and manufactured a “Mickey Mouse” violation of “Music Audible over 100 feet” to justify the stop.   

It is equally hard for undersigned counsel to imagine that the Defendant “gave Fort Lauderdale Police consent to search and proceeded to step out of his vehicle with a crack pipe in his left hand.”  Again, it is more plausible to believe that Officers —– and —– either (1) did not request for consent to search the Defendant and/or (2) disregarded the Defendant’s refusal to consent to a search of his person or vehicle.

II.   Florida Statue 316.3045(1)(a) is Unconstitutionally Vague

Florida Statue 316.3045(1)(a) is unconstitutionally vague and invites arbitrary enforcement.  In Catalano v. State, CRC 08-00054 APANO (Fla. 6th Judicial Circuit 2010) and Schermerhorn v. State, CRC 08-00055 APANO (Fla. 6th Judicial Circuit 2010), the Circuit Court, relying heavily on Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863 (Fla. 2nd D.C.A., 1996), held that Florida Statute 316.3045(1)(a) did not provide adequate notice to persons of common understanding concerning the behavior prohibited and specific intent required.  Furthermore,  Florida Statute 316.3045(1)(a) did not provide citizens, police officer, and the courts alike with sufficient guidelines to prevent arbitrary enforcement.   As a result of the unconstitutional nature of the Statute, the Circuit Court in Catalano and Schermerhorn overruled the Trial Court and discharged the Defendant.

Similar to the facts in this case, provided that the Defendant was in fact amplifying music that was “plainly audible” at a distance of 25 feet or more, the Defendant did not receive adequate notice of “plainly audible.”  “Plainly audible” is a vague and indefinable term that does not provide sufficient guidelines to prevent arbitrary enforcement and as such, should be held unconstitutional.  

III.  Conclusion

As Mr. xxxxxx’s driving pattern or use was not in violation of Florida Statute 316.3045, the fruits there from must be suppressed. Wong Sun v. U.S. 371 U.S. 471 (1963).

            WHEREFORE, the defendant respectfully requests this Honorable Court to grant the undersigned counsel’s motion to suppress.                                                       

[1] As per the Complaint Affidavit filed in this case.

[2] Florida Statute 316.3045 reads as follows (1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical sound making device or instrument from within the motor vehicle so that the sound is (a) plainly audible at a distance of 25 feet or more.

[3] Id. at 430.

[4] Id.