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Filing # 104596309 E-Filed 03/10/2020 01:02:03 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, CRIMINAL
JUSTICE DIVISION, IN AND FOR OSCEOLA COUNTY, FLORIDA
STATE OF FLORIDA, CASE NO. 2019-CF-003878-A-OS
Plaintiff, DIVISION: 101
v.
CHRISTOPHER OTERO-RIVERA,
Defendant.
/
DEFENDANT'S RESPONSE TO THE STATE'S WRITTEN MOTION TO COMPEL
FINGERPRINT SAMPLES AND MEMORANDUM OF LAW IN SUPPORT THEREOF
COMES NOW the Defendant, CHRISTOPHER OTERO-RIVERA, by and through
the undersigned attorneys, objects to the State’s Motion to Compel Fingerprint Samples until
such time, if ever, the State is able to demonstrate a factual and legal basis for the relief sought.
The State’s Motion lacks both the facts and applicable law to support the relief sought. The
Defendant, pursuant to Rule 3.220 of the Florida Rules of Criminal Procedure, and the Fourth,
Fifth, and Sixth Amendments of the Constitution of the United States; and Article I, Section 12
of the Constitution of the State of Florida opposes the State’s Motion to Compel Fingerprint
Samples without proof of a sufficient basis to provide the relief sought, and as grounds therefore
states:
1. The Defendant has been charged by Indictment with Murder in the Second Degree,
Abuse of Dead Human Body, and Tampering with Physical Evidence. All offenses
are alleged to have occurred on October 21, 2019.
2. On October 23, 2019, members of the Department of Corrections, Felony Probation
Office, had searched the home of Christopher Otero-Rivera (hereinafter “Otero-
Rivera”) in search of missing person “Nicole Montalvo.” Probation searched theentire home, the back yard, and the acres of land surrounding the home. They
teported no signs of Nicole Montalvo on the premises. Later that evening, the
Osceola County Sheriff’s Office (hereinafter “OCSO”) also responded to the home in
reference to a missing person investigation. Detectives Cole Miller and Luis Sostre
conducted interviews of Otero-Rivera, Angel Luis Rivera, and Wanda Rivera, in
reference to locating Nicole Montalvo. !
3. On October 24, 2019, OCSO arrived at the Hixon home and requested Otero-Rivera
voluntarily accompany them to the Sheriff’s Department for a formal interview.
Otero-Rivera consented and was transported to the station. Immediately prior to the
interview Otero-Rivera invoked his right to counsel. The interview was terminated,
and Otero-Rivera was released from the Sheriff's Office.”
4. In the process of being escorted out of the Sheriff's Office, Deputies escorting,
requested Otero-Rivera to turn-over his cellular phone. Otero-Rivera refused to turn
over his cellular phone unless they had a Search Warrant. The Deputy told Otero-
Rivera “they did not need a search warrant” and forced Otero-Rivera to hand over the
cellular phone.
5. Sometime later that morning, OCSO executed a search warrant at the Hixon home.
All members of the family, including Otero-Rivera and Rivera, and the tenants, were
denied access to the home.*
1 The home is located at 3925 Hixon Avenue, St. Cloud, FL 34772. (hereinafter “the Hixon home.”)
? Both Otero-Rivera and his father, Angel L. Rivera, were transported to the OCSO for a formal interview. Angel
L. Rivera was picked up at Harmony Elementary School at the time he dropped off
Undersigned Counsel contacted both Otero-Rivera and Angel Rivera prior to the interview advising both to invoke
their right to counsel.
3 Otero-Rivera was on home-confinement at the time. He was ordered to report to probation, who thereafter
approved his change of address to the Day-Z-Inn hotel on Caroline Street in St. Cloud.6. The Hixon property is comprised of five (5) acres of land. The OCSO took
possession of the property, brought in excavators, the crime scene unit, and
partitioned the property in several quadrants, for excavation. Subsequently, OCSO
revealed that human remains were located in the back wooded area of the property in
what they described as a “make-shift burial site.” 4
7. On October 26, 2019, a second property was located at Henry J Avenue. According
to the Osceola County Property Appraisers Office, the owner of the property is
Nicholas Rivera, the brother and son of the Rivera family. OCSO obtained a search
warrant to search the Henry J property which led to the discovery of more
dismembered body parts.°
8. On October 27, 2019, Otero-Rivera and Angel Rivera were both arrested and charged
with murder.
9. On November 18, 2019, counsel filed a Motion for Adversary Preliminary hearing
challenging whether the State had probable cause to believe that an offense had been
committed and that Otero-Rivera had committed it. The matter was set for December
3, 2019. The State elected not to present evidence and the defendant was released on
his own recognizance.®
10. On March 5, 2020, the State presented its case to the Grand Jury. The Grand Jury
indicted Otero-Rivera on Second Degree Murder and other related charges.
* Otero-Rivera and Angel L. Rivera were subsequently arrested by October 25, 2019 for other charges stemming
from evidence located at the search and information obtained during the first interview on October 23, 2019. Otero-
Rivera was charged with violation of an injunction. Angel L. Rivera was charged with Possession of a Firearm by a
Convicted Felon.
> OCSO located more human remains, and specifically a dismembered head, hands, and feet.
© Prior to the APH hearing, the defense also submitted Motion for Automatic Release as the State had failed to file
formal charges by the 334 day.11. On March 9, 2020, almost five (5) months after Otero-Rivera’s arrest, the State filed a
Motion to Compel Fingerprint Samples in this case.
12. In the “factual basis” for this motion, the State sets forth alleged facts with regard to
the crimes charged. However, there are no facts in the State’s Motion to support the
contention that any “desired evidence” connecting the Defendant to this crime will be
found in his cellular phone.
13. The State’s motion further sets forth not merely “fingerprint samples” but
fingerprints samples to “proceed with a previously authorized search of the
Defendant’s cellular telephone which was seized pursuant to a search warrant in this
case.”
14. The State’s request that the Defendant provide the fingerprint sample at this stage of
the proceedings and without further evidence is contrary to the Defendant’s privacy
interests as provided by the Fourth, Fifth and Sixth Amendments of the Constitution
of the United States.
15. The State’s Motion lacks the nexus between the fingerprint samples and the cellular
phone and lacks sufficient facts and/or applicable law to support the relief sought in
their motion.”
MEMORANDUM OF LAW
The obligations of disclosure to the Prosecutor under Rule 3.220(c)(1)(G), Florida Rules
of Criminal Procedure provide that: “(1) [a]fter the filing of the charging document and subject
to constitutional limitations, the court may require a defendant to:....(C) be fingerprinted.” It
appears, unlike the fingerprint issue in Gentile v. State, 190 So.2d 200 (Fla. 3" DCA 1966)
7 It is unclear how the fingerprint sample and the search of the cellular phone are connected for purposes of the
State’s request. Counsel could only assume that the use of fingerprints would be to “unlock” his cellphone.which addresses the issue of taking fingerprints after arrest for identification purposes, thus, the
only logical conclusion in this matter is the State is attempting to compel the defendant’s
fingerprints for purposes of accessing his cellular phone.
The constitutional limitations in a “password compulsion case” are defined in the case of
GA.O.L. v. State, 257 So.3d 1058 (Fla. 4° DCA 2018) which states at 1061:
The United States Supreme Court delineated the parameters of these constitutional
limitations in Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976).
There the Court noted that “the touchstone of whether an act of production is testimonial is
whether the government compels the individual to use ‘the contents of his own mind’ to explicitly
or implicitly communicate some statement of fact. Forcing a defendant to disclose a password,
whether by speaking it, writing it down, or physically entering it into a cellphone, compels
information from that person's mind and thereby falls within the core of what constitutes a
testimonial disclosure.” In this case, the physical touching of the front screen of the cellular
phone is the “act” that reveals the password.®
As aresult of the opinion in the G.A.Q.L case, two different analytical methods currently
exist in Florida, though both apply the same two-step framework, which asks (a) is the
compelled production of the password a testimonial and potentially incriminating act, and, if so
(b) is the compelled password production nonetheless permissible under the foregone conclusion
exception because its testimonial value is inconsequential due to the State already knowing of the
existence of the requested information. Id. at 1063.
Under this exception, an act of production is not a violation of the Fifth Amendment-even
if it conveys a fact-if the State can show with reasonable particularity that, at the time it sought to
8 If the State intends on using the fingerprint sample to create a synthetic thumb to gain access to defendants”
cellular phone this is akin to compelling his passcode.compel the act of production, it already knew of the materials sought, thereby making any
testimonial aspect a foregone conclusion.” Citing to Stahl v. State, 206 So.3d 129, 135 (2 DCA
2016). In other words, quoting Fisher at 411 “..by implicitly admitting the existence of the
evidence requested and that it is in the accused’s possession the accused adds little or nothing to
the sum total of the Government’s information; thus, the information provided is a foregone
conclusion.” Without more reasonable particularity as to the evidence sought behind the
passcode wall the State’s request amounts to a mere fishing expedition.
The cases cited suggest that a motion to compel passwords or passcodes require the State
to provide factual allegations to demonstrate with “reasonable particularity” what the desired
evidence is. No such allegation nor proof of same exists in the State’s Motion. In the instant
case, the State’s Motion is factually insufficient and offers no factual allegations to suggest that
“desired evidence” will be found.
WHEREFORE, the Defendant prays this Honorable Court deny the State’s Motion to
Compel Fingerprint Samples until such time as the State has provided factual allegations, and
proof thereof to demonstrate that “desired evidence” will be found.
Migdalia Perez, Esq.,
FBN: 696307
KIMBERLY A. LaSURE, ESQ.,
Florida Bar No.: 883751
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that the original notice has been E-filed thru E-file Portal System toState Attorney, Brad King, at bking@saoS.org and Clerk of Court, 2 Courthouse Square,
Kissimmee FL, 34741, on this 9"* day of March, 2020.
bee
BK
MIGDALIA PEREZ, ESQ.,
FBN: 696307
517 Bryan Street
Kissimmee, FL 34741
407.530.4920 (Office)
407.540.9351 (Fax)
mperez@perezlasurelaw.com
KIMBERLY A. LaSURE, ESQ.,
Florida Bar No.: 883751
517 Bryan Street
Kissimmee, FL 34741
Telephone: 407-530-4920
klasure@perezlasurelaw.com
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Filing # 104596309 E-Filed 03/10/2020 01:02:03 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, CRIMINAL JUSTICE DIVISION, IN AND FOR OSCEOLA COUNTY, FLORIDA STATE OF FLORIDA, CASE NO. 2019-CF-003878-A-OS Plaintiff, DIVISION: 101 v. CHRISTOPHER OTERO-RIVERA, Defendant. / DEFENDANT'S RESPONSE TO THE STATE'S WRITTEN MOTION TO COMPEL FINGERPRINT SAMPLES AND MEMORANDUM OF LAW IN SUPPORT THEREOF COMES NOW the Defendant, CHRISTOPHER OTERO-RIVERA, by and through the undersigned attorneys, objects to the State’s Motion to Compel Fingerprint Samples until such time, if ever, the State is able to demonstrate a factual and legal basis for the relief sought. The State’s Motion lacks both the facts and applicable law to support the relief sought. The Defendant, pursuant to Rule 3.220 of the Florida Rules of Criminal Procedure, and the Fourth, Fifth, and Sixth Amendments of the Constitution of the United States; and Article I, Section 12 of the Constitution of the State of Florida opposes the State’s Motion to Compel Fingerprint Samples without proof of a sufficient basis to provide the relief sought, and as grounds therefore states: 1. The Defendant has been charged by Indictment with Murder in the Second Degree, Abuse of Dead Human Body, and Tampering with Physical Evidence. All offenses are alleged to have occurred on October 21, 2019. 2. On October 23, 2019, members of the Department of Corrections, Felony Probation Office, had searched the home of Christopher Otero-Rivera (hereinafter “Otero- Rivera”) in search of missing person “Nicole Montalvo.” Probation searched theentire home, the back yard, and the acres of land surrounding the home. They teported no signs of Nicole Montalvo on the premises. Later that evening, the Osceola County Sheriff’s Office (hereinafter “OCSO”) also responded to the home in reference to a missing person investigation. Detectives Cole Miller and Luis Sostre conducted interviews of Otero-Rivera, Angel Luis Rivera, and Wanda Rivera, in reference to locating Nicole Montalvo. ! 3. On October 24, 2019, OCSO arrived at the Hixon home and requested Otero-Rivera voluntarily accompany them to the Sheriff’s Department for a formal interview. Otero-Rivera consented and was transported to the station. Immediately prior to the interview Otero-Rivera invoked his right to counsel. The interview was terminated, and Otero-Rivera was released from the Sheriff's Office.” 4. In the process of being escorted out of the Sheriff's Office, Deputies escorting, requested Otero-Rivera to turn-over his cellular phone. Otero-Rivera refused to turn over his cellular phone unless they had a Search Warrant. The Deputy told Otero- Rivera “they did not need a search warrant” and forced Otero-Rivera to hand over the cellular phone. 5. Sometime later that morning, OCSO executed a search warrant at the Hixon home. All members of the family, including Otero-Rivera and Rivera, and the tenants, were denied access to the home.* 1 The home is located at 3925 Hixon Avenue, St. Cloud, FL 34772. (hereinafter “the Hixon home.”) ? Both Otero-Rivera and his father, Angel L. Rivera, were transported to the OCSO for a formal interview. Angel L. Rivera was picked up at Harmony Elementary School at the time he dropped off Undersigned Counsel contacted both Otero-Rivera and Angel Rivera prior to the interview advising both to invoke their right to counsel. 3 Otero-Rivera was on home-confinement at the time. He was ordered to report to probation, who thereafter approved his change of address to the Day-Z-Inn hotel on Caroline Street in St. Cloud.6. The Hixon property is comprised of five (5) acres of land. The OCSO took possession of the property, brought in excavators, the crime scene unit, and partitioned the property in several quadrants, for excavation. Subsequently, OCSO revealed that human remains were located in the back wooded area of the property in what they described as a “make-shift burial site.” 4 7. On October 26, 2019, a second property was located at Henry J Avenue. According to the Osceola County Property Appraisers Office, the owner of the property is Nicholas Rivera, the brother and son of the Rivera family. OCSO obtained a search warrant to search the Henry J property which led to the discovery of more dismembered body parts.° 8. On October 27, 2019, Otero-Rivera and Angel Rivera were both arrested and charged with murder. 9. On November 18, 2019, counsel filed a Motion for Adversary Preliminary hearing challenging whether the State had probable cause to believe that an offense had been committed and that Otero-Rivera had committed it. The matter was set for December 3, 2019. The State elected not to present evidence and the defendant was released on his own recognizance.® 10. On March 5, 2020, the State presented its case to the Grand Jury. The Grand Jury indicted Otero-Rivera on Second Degree Murder and other related charges. * Otero-Rivera and Angel L. Rivera were subsequently arrested by October 25, 2019 for other charges stemming from evidence located at the search and information obtained during the first interview on October 23, 2019. Otero- Rivera was charged with violation of an injunction. Angel L. Rivera was charged with Possession of a Firearm by a Convicted Felon. > OCSO located more human remains, and specifically a dismembered head, hands, and feet. © Prior to the APH hearing, the defense also submitted Motion for Automatic Release as the State had failed to file formal charges by the 334 day.11. On March 9, 2020, almost five (5) months after Otero-Rivera’s arrest, the State filed a Motion to Compel Fingerprint Samples in this case. 12. In the “factual basis” for this motion, the State sets forth alleged facts with regard to the crimes charged. However, there are no facts in the State’s Motion to support the contention that any “desired evidence” connecting the Defendant to this crime will be found in his cellular phone. 13. The State’s motion further sets forth not merely “fingerprint samples” but fingerprints samples to “proceed with a previously authorized search of the Defendant’s cellular telephone which was seized pursuant to a search warrant in this case.” 14. The State’s request that the Defendant provide the fingerprint sample at this stage of the proceedings and without further evidence is contrary to the Defendant’s privacy interests as provided by the Fourth, Fifth and Sixth Amendments of the Constitution of the United States. 15. The State’s Motion lacks the nexus between the fingerprint samples and the cellular phone and lacks sufficient facts and/or applicable law to support the relief sought in their motion.” MEMORANDUM OF LAW The obligations of disclosure to the Prosecutor under Rule 3.220(c)(1)(G), Florida Rules of Criminal Procedure provide that: “(1) [a]fter the filing of the charging document and subject to constitutional limitations, the court may require a defendant to:....(C) be fingerprinted.” It appears, unlike the fingerprint issue in Gentile v. State, 190 So.2d 200 (Fla. 3" DCA 1966) 7 It is unclear how the fingerprint sample and the search of the cellular phone are connected for purposes of the State’s request. Counsel could only assume that the use of fingerprints would be to “unlock” his cellphone.which addresses the issue of taking fingerprints after arrest for identification purposes, thus, the only logical conclusion in this matter is the State is attempting to compel the defendant’s fingerprints for purposes of accessing his cellular phone. The constitutional limitations in a “password compulsion case” are defined in the case of GA.O.L. v. State, 257 So.3d 1058 (Fla. 4° DCA 2018) which states at 1061: The United States Supreme Court delineated the parameters of these constitutional limitations in Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). There the Court noted that “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact. Forcing a defendant to disclose a password, whether by speaking it, writing it down, or physically entering it into a cellphone, compels information from that person's mind and thereby falls within the core of what constitutes a testimonial disclosure.” In this case, the physical touching of the front screen of the cellular phone is the “act” that reveals the password.® As aresult of the opinion in the G.A.Q.L case, two different analytical methods currently exist in Florida, though both apply the same two-step framework, which asks (a) is the compelled production of the password a testimonial and potentially incriminating act, and, if so (b) is the compelled password production nonetheless permissible under the foregone conclusion exception because its testimonial value is inconsequential due to the State already knowing of the existence of the requested information. Id. at 1063. Under this exception, an act of production is not a violation of the Fifth Amendment-even if it conveys a fact-if the State can show with reasonable particularity that, at the time it sought to 8 If the State intends on using the fingerprint sample to create a synthetic thumb to gain access to defendants” cellular phone this is akin to compelling his passcode.compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion.” Citing to Stahl v. State, 206 So.3d 129, 135 (2 DCA 2016). In other words, quoting Fisher at 411 “..by implicitly admitting the existence of the evidence requested and that it is in the accused’s possession the accused adds little or nothing to the sum total of the Government’s information; thus, the information provided is a foregone conclusion.” Without more reasonable particularity as to the evidence sought behind the passcode wall the State’s request amounts to a mere fishing expedition. The cases cited suggest that a motion to compel passwords or passcodes require the State to provide factual allegations to demonstrate with “reasonable particularity” what the desired evidence is. No such allegation nor proof of same exists in the State’s Motion. In the instant case, the State’s Motion is factually insufficient and offers no factual allegations to suggest that “desired evidence” will be found. WHEREFORE, the Defendant prays this Honorable Court deny the State’s Motion to Compel Fingerprint Samples until such time as the State has provided factual allegations, and proof thereof to demonstrate that “desired evidence” will be found. Migdalia Perez, Esq., FBN: 696307 KIMBERLY A. LaSURE, ESQ., Florida Bar No.: 883751 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that the original notice has been E-filed thru E-file Portal System toState Attorney, Brad King, at bking@saoS.org and Clerk of Court, 2 Courthouse Square, Kissimmee FL, 34741, on this 9"* day of March, 2020. bee BK MIGDALIA PEREZ, ESQ., FBN: 696307 517 Bryan Street Kissimmee, FL 34741 407.530.4920 (Office) 407.540.9351 (Fax) mperez@perezlasurelaw.com KIMBERLY A. LaSURE, ESQ., Florida Bar No.: 883751 517 Bryan Street Kissimmee, FL 34741 Telephone: 407-530-4920 klasure@perezlasurelaw.com