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Filing # 107581617 E-Filed 05/17/2020 03:34:03 PM
IN THE COUNTY COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR,
OSCEOLA COUNTY, FLORIDA, CRIMINAL
DIVISION
STATE OF FLORIDA, CASE NUMBER: 2018-CF-003532-A-OS
Plaintiff, 2019-CF-003738-A-OS
DIVISION: 101
v.
CHRISTOPHER OTERO-RIVERA,
Defendant.
/
DEFENDANTS MOTION TO SUPPRESS STATEMENTS
ILLEGALLY OBTAINED
COMES NOW the Defendant, CHRISTOPHER OTERO-RIVERA, by and through the
undersigned attorney, pursuant to Florida Rules of Criminal Procedure 3.190(g), moves this
Court to suppress evidence at the trial in the above-styled matter, the evidence seized and
statements procured in a warrantless interview of the Defendant on October 23, 2019. In
support of this motion the Defendant would show the following:
EVIDENCE TO BE SUPPRESSED
1. Mr. Otero-Rivera is charged by Information with two (2) counts of Violation of a
Domestic Violence Injunction or Foreign Protection Order by Communicating or
Contacting, in violation of Fla. Stat. § 741.31(4)(a).
2. Mr. Otero-Rivera is requesting that the following evidence be suppressed:
a. Any and all statements made to law enforcement on October 23, 2019.
GROUNDS
3. On October 16, 2019, the Honorable Judge L. Calderon entered a Final Injunction
for Protection against the defendant in case # 2019DR004250 DV, in addition,
under 2018CF003532, the defendant was placed on felony probation.
4. On October 25, 2019 the defendant was arrested for two (2) counts of Violation of
a Domestic Violence Injunction or Foreign Protection Order by Communicating or
Contacting, in violation of Fla. Stat. § 741.31(4)(a).
5. Two days prior, October 23, 2019, Probation Officer Aaron Rivas (“hereinafter
Rivas”), Community Control officer A. Weatherspoon, a Supervisor, and other
110.
11.
12.
13.
14.
15.
16.
probation officer officials, arrived unannounced to the defendant’s residence and
conduct a warrantless search of the home and his five (5) acre property.
Defendant was interviewed by Rivas and other members regarding missing person
“Nicole Montalvo.” Thereafter, the defendant cooperated as required by probation
and submitted to said interview and search.
Later that same evening, Deputies and Detectives from the Osceola County
Sheriff's Office, (“hereinafter OCSO) Cole Miller and Luis Sostre, arrived
unannounced at the defendant’s residence. The defendant was once again
interviewed regarding the whereabouts of missing person Nicole Montalvo.
Prior to the interview Detective Miller stated “as a law enforcement officer I can
swear you in and it is a violation of Florida Statute for you to lie to me, if you do
anything like that you can be taken to jail.” Defendant was asked to raise his right
hand and was sworn in.
In addition, pursuant to the defendant’s condition of probation he is subject to
cooperate with law enforcement and subject to warrantless search and seizures.
During the interview of defendant Detective Miller asked whether the defendant
had any recent contact with Nicole Montalvo. The defendant in response to a
question that detectives knew would have illicit an incriminating response,
responded in the affirmative.
Detectives knew there was an Injunction for Protection and a condition of no
contact as a condition of his probation yet asked a question he knew would have
illicit an incriminating response.
The defendant admitted that Nicole Montalvo texted him on Friday, October 18,
2019, and he responded. He admitted to limited communication by text with
Nicole Montalvo.
On October 25, 2019, Detective Miller procured an arrest warrant, signed by the
Honorable Judge Heather Higbee, for violation of the domestic violence injunction.
The defendant was arrested and detained at the Osceola County Jail.
The State of Florida subsequently filed and information on the above styled new
law violation. The State of Florida additionally filed an affidavit of violation of
probation under the felony probation case # 18CF3532 for the same violation.
However, the defense argues that the State of Florida is barred from using any
admissions made by the Defendant at the October 23, 2019 interview with
Detectives Cole Miller and Luis Sostre.
To permit admission of this evidence, defendant ‘statements and/or admissions, in
the above styled matter would be in violation of applicable law. Therefore, it is
respectfully prayed that such evidence be suppressed.
nvARGUMENT
A. THE DETECTIVES INTERVIEW OF DEFENDANT WAS FOR AN
INVESTIGATIVE PURPOSE (MISSING PERSON) WITHOUT THE BENEFIT
OF MIRANDA THEREFORE ANY ADMISSIONS AND/OR STATEMENTS
ARE INADMISSIBLE IN A NEW LAW CRIMINAL PROCEEDING.
When defendant pled no contest on July 18, 2019, to the offenses under 2018-CF-
003532-A-OS and the Court placed him on probation, under Fla. Stat. ch 948 (2019), the
defendant became a probationer under the “supervision and control” of the Department of
Offender Rehabilitation. The statute stands for the proposition that the law inherently includes
the duty of the probation supervisor to properly supervise the individual on probation to ensure
compliance with the probation order.
A probationer is a person that has been convicted of a criminal offense but has been
granted the privilege of being placed on probation thus remaining free with a condition of
supervision. Under these circumstances the probationer is entitled to some but not all due
process rights. | However, upon the imposition of probation, the probationer does not
completely forfeit its protection neither under the U.S. Const. amend. IV and the Florida Const.
Art. I, §9, the prohibition of unreasonable search and seizure, nor does the probationer lose
his/her privilege against self-incrimination under the U.S. Const. amend. IV and the Florida
Const. Art. I, §9, by virtue of the imposition of probation.
On October 23, 2019, Rivas, conducted an unannounced search of the defendant’s
residence with other five (5) additional officers from the department. The probation officers
were searching for missing person “Montalvo.” As required of the probationer, the defendant,
he submitted to the warrantless search of his family home and property. No evidence of the
missing person was identified by Rivas or any other officer on scene. Later that same
afternoon, members of the OCSO, Detectives Miller and Sostre, returned to the defendants’
3home
to interview the defendant. The defendant cooperated with law enforcement, they advised him
of the purpose of the interview was in furtherance of the investigation into the missing person
Montalvo. Detective Miller specifically asked whether defendant had contact with Montalvo.
The defendant hesitated at which time Detective Miller told him he was not there to “hem him
up,” translation “not there to charge him for having contact.” Detective Miller made it clear he
just wanted to find Montalvo. The defendant submitted to the interview and was questioned
about Montalvo’s whereabouts. The defendant did not provide any information as to her
whereabouts; however, he did admit to communication by text with Montalvo on October 18,
2019, in violation of the no contact order. Detectives Miller and Sostre did not violate the
defendant or arrest the defendant as promised.
On October 24, 2019, Detectives from the OCSO for the third time, went to the
defendant’s home unannounced and transported the Defendant to the OCSO. Defendant was
placed in an interview room. The defendant was not interviewed as he requested his right to
counsel and his right to remain silent. The defendant was escorted out of the Sheriff's
Department and was free to leave. There was no further communication between law
enforcement and the defendant.
In Bamberg v. State, 953 So.2d 649, (2° DCA 2007), the court citing to Grubbs vy.
State, 373 So.2d 905 (Fla. 1979), drew a distinction between a warrantless search of a
probationer made by a probation officer for supervising the probationer and a search made by
law enforcement officers unrelated to any supervisory purpose. In Grubbs, the court held that
an “investigatory search” of a probationer by a law enforcement officer violates the Fourth
Amendment even if the probationer is subject to a warrantless search condition. In Grubbs, the
certified question before the Court was “[i]s a condition of probation requiring a probationer to
consent to a search at any time, by any law enforcement officer, violative of the probationer’s
4rights under the Fourth Amendment of the United States Constitution or Article I, Section 12, of
the Florida Constitution?
The court in a written opinion answered the question in the affirmative, stating:
“The search of a probationer’s person or residence by probation
supervisor without a warrant is, in our view, a reasonable search
and absolutely necessary for the proper supervision of probationers.
However, granting such general authority to law enforcement
officials is not permissible under the search and seizure provisions
of the Florida or United States Constitutions.”
Thus, under Grubbs, a warrantless search of a probationer for supervisory purposes
satisfies the Fourth Amendment’s test of reasonableness, but a warrantless search conducted
by law enforcement officers for investigatory purposes does not. The court further held that “a
warrantless search of a probationer’s person or residence by a probation supervisor is valid to
the extent that the evidence discovered is used only in probation violation proceedings” and
that “the use of seized evidence in a new criminal proceeding requires compliance with
customary fourth amendment requirements although the opportunity to meet those
requirements may be easier because the defendant is a probationer.” Id. at 907. implicit
In our case, the warrantless search authorized by the special condition of probation
ordered by the trial court, is limited to a search made in the course of supervising the
probationer, i.e., a search conducted for probationary purposes. On October 23, 2019, the
probation officer’s first search of the Defendant’s residence did not lead to anything of
evidentiary value. However, the subsequent visit to the residence by law enforcement that
same afternoon led to an admission of contact with Montalvo in violation of the no contact
order and/or Injunction for Protection. ! The defendant complying with his conditions of
! There was a no contact order that remained in effect when the defendant was sentenced to probation on the above
styled matter, 2018CF3532. In addition, an Injunction for Protection was issued by Judge Calderon, 18DR4250,
on October 16, 2019.probation submitted to interview, was not mirandized,? but was merely instructed on the
consequences of violating the sworn oath and made
admissions which is the subject of the crimes charged in this matter. See FN2.
In State v. Heath, 343 So.2d 13 (Fla.) the court held that a “probationer, upon a specific
request and at periodic intervals, is required to identify himself and provide all information
necessary to his supervision.” The decision in_Heath re-emphasized the fact that the
exclusionary rule for statements obtained in violation of the fifth amendment privilege against
self-incrimination would be applicable to statements offered at a trial for a separate criminal
offense.
Members from two separate law enforcement teams, probation officers and Detectives
from the Osceola County Sheriff's Office conducted an unannounced and unplanned
warrantless search of the defendant’s residence: and Detectives conducting interviews later
that same day. The purpose of the search was clearly to seek evidence of criminal activity
based on the missing person’s report of Montalvo or seek Montalvo herself. Probation Officer,
Rivas, was clear that the purpose of the search with other members of the department was for
support in the search for Montalvo.* When members of OCSO arrived at the defendants’ home
later that same day, defendant knew he was obligated to cooperate with law enforcement based
on the factors laid out in Heath. Law enforcement (Detectives Miller and Sostre) made a
conscious choice not to Mirandize the defendant knowing that the questions posed could
invoke an incriminating statement. The detectives knew or should have known that there was a
no contact order in place for the defendant and missing person Montalvo, therefore, any
? It is true that the defendant was not in custody for purposes of Miranda. However, what is clear is that Detective
Miller knew his question would illicit an incriminating response. He knew that the defendant would not have
provided information he sought had he not made implicit promises not to “hem him up.”
3 See Affidavit of Violation of Probation (p.4)questions in reference to contact or communication with Montalvo would be self-incriminating.
Thus, they had a duty to afford the defendant his Constitutional protections under Miranda.
However, they opted to proceed to interview the defendant pursuant to its authority granted,
under Grubbs, but that authority is
extended only to probation officers.*
CONCLUSION
In this matter, law enforcement obtained incriminating evidence by use of implicit
promises, thus, a statement by a defendant is not freely and voluntarily given if obtained by
either direct or implied promises, however, slight. It cannot be said that there is not a causal
nexus between the comments made by the detective regarding not “hemming up” the defendant
when questioning whether the defendant had contact with Montalvo. See, Day v. State, 29
So.3d 1178 (Fla. 4 DCA 2010).
WHEREFORE, the defendant prays this Honorable Court suppress all statements
* The Department of Corrections (DOC) has codified the Grubbs rule in its Community Control Implementation
Manual (CCIM). For instance, the DOC manual states, “An administrative probation or parole revocation hearing
is different from a criminal trial to determine the guilt of a violation charge. Evidence may be presented at a
revocation hearing that could not be admissible in a trial.” CCIM at 41 (emphasis added). Moreover, the DOC
specifically notes that the authority to search a probationer’s residence under Grubbs is limited to correctional
probation officers and supervisors:
Evidence obtained by search by an officer — is admissible at a revocation hearing even though there
was no search warrant. The courts have held that the search of a probationer’s person or residence
by his probation officer without a warrant is reasonable and absolutely necessary for probation
supervision. However, granting such authority to law enforcement officials is NOT
PERMISSIBLE...Evidence conducted at such searches may be used at revocation hearings.
Id. at 43. Finally, the DOC requires that its probation staff follow a procedure consistent with Grubbs when
conducting a probationary search like the one in this case.
c. No officer shall make a planned search of an offender’s residence, car or person unless he has specific
approval of his supervisor. Before making any planned searches, the officer shall document and review the plan
with the supervisor, indicating reasons and risks involved. Upon approval, a search warrant may be requested and
law enforcement assistance obtained if the situation warrants such action. Probation and parole staff shall avoid
“raids” on probationer’s [sic] houses.
d. it is necessary to have another officer or supervisor present when conducting searches that are not
routine and searches shall be carried out with the assistance of local law enforcement officers where
possible. ..If a search warrant has NOT been procured by local law enforcement, ANY seized evidence
can only be used for revocation of supervision.obtained by defendant during his interview in the investigation into missing person Montalvo,
in this new law proceeding, or in the alternative grant a hearing on this Motion to Suppress and
any other relief that in the interest of justice this Honorable Court may deem appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been E-
Filed thru E-file Portal System to the Office of the State Attomey, rwilliams@saoS.org and
JMcManus@saoS.org, on this 16" day May, 2020.
U ag eh ke
oO
By:
MIGDALIA PEREZ
Attorney for Christopher Ortero-Rivera
Florida Bar No.: 696307
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
mperez@perezlasurelaw.com
qv
By:
KIMBERLY A. LASURE
Florida Bar No.: 883751
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
klasure@perezlasurelaw.comIN THE COUNTY COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR,
OSCEOLA COUNTY, FLORIDA, CRIMINAL
DIVISION
STATE OF FLORIDA, CASE NUMBER: 2018-CF-003532-A-OS
Plaintiff, 2019-CF-003738-A-OS
DIVISION: 101
vy.
CHRISTOPHER OTERO-RIVERA,
Defendant.
/
ORDER ON DEFENDANT’S MOTON TO SUPPRESS EVIDENCE
THIS CAUSE having come on before the Honorable Judge Jon B. Morgan upon the
Defendant’s Motion to Suppress Evidence and the Court having been fully advised in the
premises, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to Suppress Evidence be and
the same is hereby :
DONE and ORDERED in Chambers/Court at Kissimmee, Osceola County, Florida, this
day of , 2020.
HONORABLE JON B. MORGAN
CIRCUIT CRIMINAL JUDGE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by E-File Portal to the Office of the State Attorney, 2 Courthouse Square, Kissimmee, FL
34741; and to Attorney Migdalia Perez, 517 Bryan Street, Kissimmee, Florida, 34741, this
day of , 2020.
JUDICIAL ASSISTANT10
Preview
Filing # 107581617 E-Filed 05/17/2020 03:34:03 PM IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR, OSCEOLA COUNTY, FLORIDA, CRIMINAL DIVISION STATE OF FLORIDA, CASE NUMBER: 2018-CF-003532-A-OS Plaintiff, 2019-CF-003738-A-OS DIVISION: 101 v. CHRISTOPHER OTERO-RIVERA, Defendant. / DEFENDANTS MOTION TO SUPPRESS STATEMENTS ILLEGALLY OBTAINED COMES NOW the Defendant, CHRISTOPHER OTERO-RIVERA, by and through the undersigned attorney, pursuant to Florida Rules of Criminal Procedure 3.190(g), moves this Court to suppress evidence at the trial in the above-styled matter, the evidence seized and statements procured in a warrantless interview of the Defendant on October 23, 2019. In support of this motion the Defendant would show the following: EVIDENCE TO BE SUPPRESSED 1. Mr. Otero-Rivera is charged by Information with two (2) counts of Violation of a Domestic Violence Injunction or Foreign Protection Order by Communicating or Contacting, in violation of Fla. Stat. § 741.31(4)(a). 2. Mr. Otero-Rivera is requesting that the following evidence be suppressed: a. Any and all statements made to law enforcement on October 23, 2019. GROUNDS 3. On October 16, 2019, the Honorable Judge L. Calderon entered a Final Injunction for Protection against the defendant in case # 2019DR004250 DV, in addition, under 2018CF003532, the defendant was placed on felony probation. 4. On October 25, 2019 the defendant was arrested for two (2) counts of Violation of a Domestic Violence Injunction or Foreign Protection Order by Communicating or Contacting, in violation of Fla. Stat. § 741.31(4)(a). 5. Two days prior, October 23, 2019, Probation Officer Aaron Rivas (“hereinafter Rivas”), Community Control officer A. Weatherspoon, a Supervisor, and other 110. 11. 12. 13. 14. 15. 16. probation officer officials, arrived unannounced to the defendant’s residence and conduct a warrantless search of the home and his five (5) acre property. Defendant was interviewed by Rivas and other members regarding missing person “Nicole Montalvo.” Thereafter, the defendant cooperated as required by probation and submitted to said interview and search. Later that same evening, Deputies and Detectives from the Osceola County Sheriff's Office, (“hereinafter OCSO) Cole Miller and Luis Sostre, arrived unannounced at the defendant’s residence. The defendant was once again interviewed regarding the whereabouts of missing person Nicole Montalvo. Prior to the interview Detective Miller stated “as a law enforcement officer I can swear you in and it is a violation of Florida Statute for you to lie to me, if you do anything like that you can be taken to jail.” Defendant was asked to raise his right hand and was sworn in. In addition, pursuant to the defendant’s condition of probation he is subject to cooperate with law enforcement and subject to warrantless search and seizures. During the interview of defendant Detective Miller asked whether the defendant had any recent contact with Nicole Montalvo. The defendant in response to a question that detectives knew would have illicit an incriminating response, responded in the affirmative. Detectives knew there was an Injunction for Protection and a condition of no contact as a condition of his probation yet asked a question he knew would have illicit an incriminating response. The defendant admitted that Nicole Montalvo texted him on Friday, October 18, 2019, and he responded. He admitted to limited communication by text with Nicole Montalvo. On October 25, 2019, Detective Miller procured an arrest warrant, signed by the Honorable Judge Heather Higbee, for violation of the domestic violence injunction. The defendant was arrested and detained at the Osceola County Jail. The State of Florida subsequently filed and information on the above styled new law violation. The State of Florida additionally filed an affidavit of violation of probation under the felony probation case # 18CF3532 for the same violation. However, the defense argues that the State of Florida is barred from using any admissions made by the Defendant at the October 23, 2019 interview with Detectives Cole Miller and Luis Sostre. To permit admission of this evidence, defendant ‘statements and/or admissions, in the above styled matter would be in violation of applicable law. Therefore, it is respectfully prayed that such evidence be suppressed. nvARGUMENT A. THE DETECTIVES INTERVIEW OF DEFENDANT WAS FOR AN INVESTIGATIVE PURPOSE (MISSING PERSON) WITHOUT THE BENEFIT OF MIRANDA THEREFORE ANY ADMISSIONS AND/OR STATEMENTS ARE INADMISSIBLE IN A NEW LAW CRIMINAL PROCEEDING. When defendant pled no contest on July 18, 2019, to the offenses under 2018-CF- 003532-A-OS and the Court placed him on probation, under Fla. Stat. ch 948 (2019), the defendant became a probationer under the “supervision and control” of the Department of Offender Rehabilitation. The statute stands for the proposition that the law inherently includes the duty of the probation supervisor to properly supervise the individual on probation to ensure compliance with the probation order. A probationer is a person that has been convicted of a criminal offense but has been granted the privilege of being placed on probation thus remaining free with a condition of supervision. Under these circumstances the probationer is entitled to some but not all due process rights. | However, upon the imposition of probation, the probationer does not completely forfeit its protection neither under the U.S. Const. amend. IV and the Florida Const. Art. I, §9, the prohibition of unreasonable search and seizure, nor does the probationer lose his/her privilege against self-incrimination under the U.S. Const. amend. IV and the Florida Const. Art. I, §9, by virtue of the imposition of probation. On October 23, 2019, Rivas, conducted an unannounced search of the defendant’s residence with other five (5) additional officers from the department. The probation officers were searching for missing person “Montalvo.” As required of the probationer, the defendant, he submitted to the warrantless search of his family home and property. No evidence of the missing person was identified by Rivas or any other officer on scene. Later that same afternoon, members of the OCSO, Detectives Miller and Sostre, returned to the defendants’ 3home to interview the defendant. The defendant cooperated with law enforcement, they advised him of the purpose of the interview was in furtherance of the investigation into the missing person Montalvo. Detective Miller specifically asked whether defendant had contact with Montalvo. The defendant hesitated at which time Detective Miller told him he was not there to “hem him up,” translation “not there to charge him for having contact.” Detective Miller made it clear he just wanted to find Montalvo. The defendant submitted to the interview and was questioned about Montalvo’s whereabouts. The defendant did not provide any information as to her whereabouts; however, he did admit to communication by text with Montalvo on October 18, 2019, in violation of the no contact order. Detectives Miller and Sostre did not violate the defendant or arrest the defendant as promised. On October 24, 2019, Detectives from the OCSO for the third time, went to the defendant’s home unannounced and transported the Defendant to the OCSO. Defendant was placed in an interview room. The defendant was not interviewed as he requested his right to counsel and his right to remain silent. The defendant was escorted out of the Sheriff's Department and was free to leave. There was no further communication between law enforcement and the defendant. In Bamberg v. State, 953 So.2d 649, (2° DCA 2007), the court citing to Grubbs vy. State, 373 So.2d 905 (Fla. 1979), drew a distinction between a warrantless search of a probationer made by a probation officer for supervising the probationer and a search made by law enforcement officers unrelated to any supervisory purpose. In Grubbs, the court held that an “investigatory search” of a probationer by a law enforcement officer violates the Fourth Amendment even if the probationer is subject to a warrantless search condition. In Grubbs, the certified question before the Court was “[i]s a condition of probation requiring a probationer to consent to a search at any time, by any law enforcement officer, violative of the probationer’s 4rights under the Fourth Amendment of the United States Constitution or Article I, Section 12, of the Florida Constitution? The court in a written opinion answered the question in the affirmative, stating: “The search of a probationer’s person or residence by probation supervisor without a warrant is, in our view, a reasonable search and absolutely necessary for the proper supervision of probationers. However, granting such general authority to law enforcement officials is not permissible under the search and seizure provisions of the Florida or United States Constitutions.” Thus, under Grubbs, a warrantless search of a probationer for supervisory purposes satisfies the Fourth Amendment’s test of reasonableness, but a warrantless search conducted by law enforcement officers for investigatory purposes does not. The court further held that “a warrantless search of a probationer’s person or residence by a probation supervisor is valid to the extent that the evidence discovered is used only in probation violation proceedings” and that “the use of seized evidence in a new criminal proceeding requires compliance with customary fourth amendment requirements although the opportunity to meet those requirements may be easier because the defendant is a probationer.” Id. at 907. implicit In our case, the warrantless search authorized by the special condition of probation ordered by the trial court, is limited to a search made in the course of supervising the probationer, i.e., a search conducted for probationary purposes. On October 23, 2019, the probation officer’s first search of the Defendant’s residence did not lead to anything of evidentiary value. However, the subsequent visit to the residence by law enforcement that same afternoon led to an admission of contact with Montalvo in violation of the no contact order and/or Injunction for Protection. ! The defendant complying with his conditions of ! There was a no contact order that remained in effect when the defendant was sentenced to probation on the above styled matter, 2018CF3532. In addition, an Injunction for Protection was issued by Judge Calderon, 18DR4250, on October 16, 2019.probation submitted to interview, was not mirandized,? but was merely instructed on the consequences of violating the sworn oath and made admissions which is the subject of the crimes charged in this matter. See FN2. In State v. Heath, 343 So.2d 13 (Fla.) the court held that a “probationer, upon a specific request and at periodic intervals, is required to identify himself and provide all information necessary to his supervision.” The decision in_Heath re-emphasized the fact that the exclusionary rule for statements obtained in violation of the fifth amendment privilege against self-incrimination would be applicable to statements offered at a trial for a separate criminal offense. Members from two separate law enforcement teams, probation officers and Detectives from the Osceola County Sheriff's Office conducted an unannounced and unplanned warrantless search of the defendant’s residence: and Detectives conducting interviews later that same day. The purpose of the search was clearly to seek evidence of criminal activity based on the missing person’s report of Montalvo or seek Montalvo herself. Probation Officer, Rivas, was clear that the purpose of the search with other members of the department was for support in the search for Montalvo.* When members of OCSO arrived at the defendants’ home later that same day, defendant knew he was obligated to cooperate with law enforcement based on the factors laid out in Heath. Law enforcement (Detectives Miller and Sostre) made a conscious choice not to Mirandize the defendant knowing that the questions posed could invoke an incriminating statement. The detectives knew or should have known that there was a no contact order in place for the defendant and missing person Montalvo, therefore, any ? It is true that the defendant was not in custody for purposes of Miranda. However, what is clear is that Detective Miller knew his question would illicit an incriminating response. He knew that the defendant would not have provided information he sought had he not made implicit promises not to “hem him up.” 3 See Affidavit of Violation of Probation (p.4)questions in reference to contact or communication with Montalvo would be self-incriminating. Thus, they had a duty to afford the defendant his Constitutional protections under Miranda. However, they opted to proceed to interview the defendant pursuant to its authority granted, under Grubbs, but that authority is extended only to probation officers.* CONCLUSION In this matter, law enforcement obtained incriminating evidence by use of implicit promises, thus, a statement by a defendant is not freely and voluntarily given if obtained by either direct or implied promises, however, slight. It cannot be said that there is not a causal nexus between the comments made by the detective regarding not “hemming up” the defendant when questioning whether the defendant had contact with Montalvo. See, Day v. State, 29 So.3d 1178 (Fla. 4 DCA 2010). WHEREFORE, the defendant prays this Honorable Court suppress all statements * The Department of Corrections (DOC) has codified the Grubbs rule in its Community Control Implementation Manual (CCIM). For instance, the DOC manual states, “An administrative probation or parole revocation hearing is different from a criminal trial to determine the guilt of a violation charge. Evidence may be presented at a revocation hearing that could not be admissible in a trial.” CCIM at 41 (emphasis added). Moreover, the DOC specifically notes that the authority to search a probationer’s residence under Grubbs is limited to correctional probation officers and supervisors: Evidence obtained by search by an officer — is admissible at a revocation hearing even though there was no search warrant. The courts have held that the search of a probationer’s person or residence by his probation officer without a warrant is reasonable and absolutely necessary for probation supervision. However, granting such authority to law enforcement officials is NOT PERMISSIBLE...Evidence conducted at such searches may be used at revocation hearings. Id. at 43. Finally, the DOC requires that its probation staff follow a procedure consistent with Grubbs when conducting a probationary search like the one in this case. c. No officer shall make a planned search of an offender’s residence, car or person unless he has specific approval of his supervisor. Before making any planned searches, the officer shall document and review the plan with the supervisor, indicating reasons and risks involved. Upon approval, a search warrant may be requested and law enforcement assistance obtained if the situation warrants such action. Probation and parole staff shall avoid “raids” on probationer’s [sic] houses. d. it is necessary to have another officer or supervisor present when conducting searches that are not routine and searches shall be carried out with the assistance of local law enforcement officers where possible. ..If a search warrant has NOT been procured by local law enforcement, ANY seized evidence can only be used for revocation of supervision.obtained by defendant during his interview in the investigation into missing person Montalvo, in this new law proceeding, or in the alternative grant a hearing on this Motion to Suppress and any other relief that in the interest of justice this Honorable Court may deem appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been E- Filed thru E-file Portal System to the Office of the State Attomey, rwilliams@saoS.org and JMcManus@saoS.org, on this 16" day May, 2020. U ag eh ke oO By: MIGDALIA PEREZ Attorney for Christopher Ortero-Rivera Florida Bar No.: 696307 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 mperez@perezlasurelaw.com qv By: KIMBERLY A. LASURE Florida Bar No.: 883751 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 klasure@perezlasurelaw.comIN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR, OSCEOLA COUNTY, FLORIDA, CRIMINAL DIVISION STATE OF FLORIDA, CASE NUMBER: 2018-CF-003532-A-OS Plaintiff, 2019-CF-003738-A-OS DIVISION: 101 vy. CHRISTOPHER OTERO-RIVERA, Defendant. / ORDER ON DEFENDANT’S MOTON TO SUPPRESS EVIDENCE THIS CAUSE having come on before the Honorable Judge Jon B. Morgan upon the Defendant’s Motion to Suppress Evidence and the Court having been fully advised in the premises, it is hereby ORDERED and ADJUDGED that the Defendant’s Motion to Suppress Evidence be and the same is hereby : DONE and ORDERED in Chambers/Court at Kissimmee, Osceola County, Florida, this day of , 2020. HONORABLE JON B. MORGAN CIRCUIT CRIMINAL JUDGE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-File Portal to the Office of the State Attorney, 2 Courthouse Square, Kissimmee, FL 34741; and to Attorney Migdalia Perez, 517 Bryan Street, Kissimmee, Florida, 34741, this day of , 2020. JUDICIAL ASSISTANT10