WOULD YOU GRANT THIS MOTION?
Attorney Gary Ostrow writes:
On December 12, 2008, Fort Lauderdale police received a tip alleging that the defendant, John Mazzurco, was in the process of breaking down multiple kilos of cocaine at a particular address in the city. As an immediate response to this generalized tip, no less than 11 undercover street level narcotics officers arrived at the subject address to conduct surveillance. According to reports generated by detectives that evening, after only a short time into the surveillance, 2 unidentified individuals were observed exiting the residence, a male and a female. Detectives claimed they were unable to identify either individual, and only had a description of Mazzurco as a white male. At no time during this surveillance was there any evidence to corroborate the tipster's allegations. In fact, detectives, under oath, represented that a silver Kia, parked at the Mazzurco home, was in fact registered to John Mazzurco, pursuant to their tipster. Notwithstanding this testimony and the allegations in the sworn affidavit for the search warrant, the defense introduced irrefutable evidence that those representations were in fact false, and that no such vehicle was ever registered to defendant Mazzurco.
Only minutes subsequent to the departure of the two unidentified individuals from the residence in a white Mercedes, detectives made a stop as a result of an alleged simple traffic infraction (failure to maintain a single lane), after tailing the car when it left the house. The vehicle was being driven by defendant John Mazzurco. The female was the passenger, and the car was registered in her name. According to the State's own witnesses, Mazzurco was then detained at the traffic stop, and remained handcuffed in the back of an unmarked police vehicle for over an hour. During the evidentiary hearing on the motion to suppress before the Honorable Judge John Murphy, detectives testified there was no legal basis to detain Mr. Mazzurco, and offered no explanation for the detention.
After Mazzurco was identified at the stop approximately one mile from his home, surveillance detectives were instructed to make contact with the sole occupant of the home, Mazzurco's 20- year- old daughter, Christina. It is apparent from the testimony that this instruction from the ranking on- scene sergeant, Swisher, followed the stop and the identification of Mazzurco, and presumably after detectives learned who was occupying the home. At no time did any law enforcement agent seek consent from Mazzurco for the right to search his home.
After the two surveillance detectives were instructed to make contact with the sole home occupant, they knocked and announced their presence and later testified that Christina Mazzurco responded by running away from the front door, from room to room, in a state of panic, refusing to answer or open the door. Exhibits entered into evidence by the defense, in the form of AT&T authenticated phone records, corroborated the testimony of Christina Mazzurco, who testified that upon the police announcement, she immediately called her father, who responded, via cell phone at the traffic stop, advising his daughter "not to allow the police entry into the home." As a result of their failure to make contact with Christina Mazzurco inside the home, Christina testified that only seconds later, one of the detectives began to tamper with a screen leading into the bedroom of John Mazzurco. Already in a state of panic, Christina, out of mere fright and in an effort to avoid the forced entry into her father's home, unwittingly opened the door when detectives advised they were there to execute a "protective sweep." When asked why by Christina Mazzurco, they responded by indicating they were looking for her father, John, when she replied, "he's not here, there's no need to come in." Notwithstanding this exchange, and the fact that detectives knew Mazzurco was detained at that time on the side of the road, the detectives crossed the threshold of the home and entered same, making a warrantless entry, without valid consent or exigent circumstances.
After only minutes in the home, only one of the detectives, despite language in the sworn application for the search warrant stating both detectives made the same observation, claimed to have seen, in plain view, a white powdery substance in the bedroom of John Mazzurco, the same room where the screen was alleged to have been tampered with. Detectives immediately sealed the home as a crime scene, detaining Christina Mazzurco, and immediately began to author the sworn affidavit for a search warrant. The sworn affidavit largely relied on the observations of a detective made after the warrantless entry into the home, during what they claimed was a "protective sweep." All of this occurred after the traffic stop for an infraction only a short distance from Mazzurco's home, while Mazzurco remained handcuffed in the back of an unmarked police vehicle, having already invoked his rights.
Hours later, after the execution of the search warrant, John Mazzurco was formally arrested for trafficking in cocaine over 200 grams, carrying minimum mandatory trafficking charges due to drugs and a handgun discovered in the home. One day before the Arthur hearing, the state dropped the armed portion of the charges, which until then resulted in Mazzurco's inability to bond out for over 30 days. Defense testimony at the motion to suppress included that of the Fort Lauderdale police records custodian, that, despite repeated and timely defense requests for police recordings of radio transmissions the evening of Mazzurco's arrest, said tapes were erased for reasons unknown, and consequently never made available to the defense. Christina Mazzurco was never asked to execute a consent to search form. Further, when asked by Detective Castro how she was supposed to react if anyone attempted to gain entry into the home, she stated she had been advised by her father, John Mazzurco, "not to let anyone in."
This motion, having been heard over a three day period, is before the Honorable Judge John Murphy, who has yet to rule. The court made a preliminary ruling that despite the consent alleged by the state, the defense motion to force the State to proceed first and carry the burden of showing that the consent was free and voluntary, was denied. Consequently, the defense was forced to proceed initially, under the shifted burden. Both pre-hearing and post hearing memorandum of law was provided to the court. The court's ruling is expected sometime after Friday, November 13, 2009, when the post hearing briefs were deadlined by the Court.
So, were John Mazzurco's constitutional rights violated? Should the evidence be suppressed? Did the State meet its burden to show consent to the search, or does this seem like police intimidation, threat, or coercion?
MOTION GRANTED OR DENIED? - YOU MAKE THE CALL!
So let's ask our fake judicial candidates and incumbents running for their answers. Since they can't actually give an answer to this question under the Canons, give your guesses as to how they'd rule.
Fake Lee Seidman says DENIED
This motion should be granted but it won't.
Why?
Our judges are elected.
Duh
Prediction: the SAO will probably have the cops all sitting there staring at Murphy when he starts to make his ruling.
I have won motions to suppress in front of murphy. He is not one of those judges who denies every motion. I have always found him to be fair.
So like the SAO. They know a valid motion when they see one but can't make a deal even when police have broken laws.
He'll deny it based on the credibility of the witnesses. He'll say the officers are more believable than the girl. Case closed.
If it was the ADJ it would go like this...
Defense Attorney is Kulik, Bogey, Collins, OConnell, Melnick and/or Burnstien; Motion is Granted
If Defense attorney is not one of the above but willing to give a donation on or before the hearing of $200 or more, Granted
Dan Callahan or other friend of McLawrence or Klitsberg: Motion Denied.
*DISCLAIMER* This is a work of fiction (wink wink)
I say motion the flanker left, play action and hit the tight end on a tight curl 7 red. It worked every time in high school....
@9:56
Judge Murphy is an extremely fair jurist. Murphy ran against an incumbent (joyce julian) that needed to be removed. I find it hard to believe Murphy would play those games. Most of the good judges understand Seidman needs to go. Seidman has no business being a judge. Good luck to his opponents; they can't be worse than him.
Why did Julian need to go? Because she pulled her pants down and went nighty night in public? If you ask me, we need more jurists like that.
Everybody can talk all the trash they want. Ostrow is a hell of a lawyer. Motion will probably be denied, but that is just the way things go. In the bigger cases, the Judges are looking for ANY WAY POSSIBLE to keep the evidence in.
As far as Joyce goes. I never had the privledge of practicing in front of her, but I like chicks that drop their pants! I just don't get it, you guys want women to put out and then insult them for doing just what you want them to do.
Joyce Julian was always a nice chick, just a little wacky with no self control.
FLPD and Hollywood have been out of control for as long as I can remember.
Judge Murphy was going to deny this motion until he read Ostrow's article. Now he's decided to grant it NOT.
"Those who with a word make a man out to be guilty, who ensnare the defender in court and with false testimony deprive the innocent of justice."
Isaiah 29:21
Murphy is one of the fairest judges I've come across on Motions to Suppress. He applies the law evenly and isn't afraid to say when he thinks cops are being less than credible. We need more like him.
Separate from whatever happens regarding the ruling, I want to say that this is a very well written piece by Gary. I'm glad to see it. His client is well represented.
Motion should be granted. Sorry to hear that there is so much political junk in play in Broward.
Let's take a step back for a second and realize that there are two sides to every story. Absent a response from the SAO, I can and will not just believe Mr. Ostrow's version. I've had the pleasure of dealing with him (wink wink).
After all, isn't he the one that recently got arrested for possession of cocaine?
I'd like to hear the state's position too but if even one of Gary's allegations are true the motion is likely valid.
The SAO’s version would probably read: “Gary Ostrow was held in a Tallahassee airport for 8 hours yesterday, for no reason, according to police testimony!
After several erased recorded statements, perjured testimony by police officers and erased video and audio tapings of the incident. Mr. Ostrow was charged with what appeared to be an empty vial of white powder”. Sound about right! What a DB
how is speiser, ostrow?
Again the gutless and anonymous continue to throw stones from afar........how predictable. The facts as presented were NOT contested by the state at the hearing. When any of the anonymous grow some balls and want to come out of the closet, you know where to find me. As I have repeated, I strive on a daily basis to reach levels of perfection reached by that of my detractors. If you had the guts and the passion to go after these rogue police officers, instead of launching your gutless personal attacks my way, maybe we could all contribute toward a more civilized and just criminal justice system.......Did I mention what a pussy you are? P.S. Speiser is fine!
For all his faults, Gary at least provides content for the front page. Even Bill needs a break every now and then.
Interesting scenario Gary -- if the 4th Amendment still means anything, the Motion should be granted. How a "protective screen" could legitimately be claimed when the target was already in custody is bizarre at best.
Please post when Murphy gives you a ruling.
Murphy's going to civil soon. Maybe you'll win this one.
The Miami blog asks Miami attorney's about Gary's case: Check out "You Make The Call" on the Broward Blog here.
Basically, in Broward the police have as much respect for the 4th Amendment as the Judges North of the Border have for Dade Lawyers.
Especially nifty is the warrant-less entry into the defendant's home to "make a protective sweep" looking for the defendant while the other part of the same squad has the Defendant detained at a traffic stop.
http://www.justicebuilding.blogspot.com/
what I don't get is how a case likes this piece of garbage gets filed?? I mean, Ostrow is debating the legitimate Constitutional issues and the lame "public at large" just sits back AND DOES NOTHING!! Therein lies the problem.......the hapless apathy and lack of enthusiasm or support is the very thing that condones and promotes this routine, day to day police abuse so popular in Broward Deutchland. Wake the F*** people!! Are there any criminal defense lawyers out there with a name? Broward deserves just what it gets......keep letting them get away with it..........sad and pathetic,,,,,,but true!
Broward is a police state. Always has been and always will.
Grease the palms or move away already. The never ending whining is annoying as hell.
Ostrow for Public Defender!