all right miss mitchell you'll be handling this for the state could you please state your full name and spell your last name for the record my name is keith weren't you in fact conducting an operation where you approached every person who you saw on that property that's not correct that's not correct that is not correct you were probably calling me taking your depositions yes yes i do do you remember telling me that you were approaching everybody who you saw on that property then i wouldn't have told you that because that's not what we do what was it about the bottle that led you to believe it was alcohol it was a seagram's vodka bottle a sebring black box yeah how is it that you recall that particular detail because i saw it do you recall telling me in deposition that you didn't remember exactly where the bottle was no i didn't tell you that in a deposition in your incident report that you just looked at you said that the bottle was a woolish metal vodka bottle so they were there to back you up but they instead ran over to another vehicle in the park correct and you don't know why not at that time i was dealing with mr law correct i think what mr ayanako is saying and just correct me if i'm wrong he agrees that based upon the officer's testimony here in court the suppression motion would be denied but what mr iannaco is saying is that the deputy's testimony today is inconsistent with the testimony that he gave at his deposition and that based upon the deposition testimony was the reason why he filed the motion to suppress mr anako am i correct that you believed based upon his deposition testimony that there was a suppression issue my basic argument is that your honor should not consider his testimony at all i think you'll see what i mean when you see this definition if the demo testimony is the test testimony or what you believe testified to me that was what you heard today i'm still not seeing an issue unless you're telling me he said you stopped the vehicle before he ever saw anything or in some way detain the defendant simply put your honor it is my position that once the court sees the deposition transcript you will agree that what you've heard today is not to be believed and that it does not support the seizure in this case it's my position that you cannot accept his testimony as fact at all based upon is clearly contradicting his own prior swan testimony and on something that can be written off as just a lapse of memory okay so is it your belief that the deputy's testimony here today is significantly different from what he testified to in his deposition on material issues i mean not you know for example okay i mean it's not something that i would imagine mr ayannaka would take lightly and next year we'll be in um 18d not 90. okay thank you very much everyone thank you i wouldn't have told you that because that's not what we do is it not a regular operation that you do no it is not a regular operation i wouldn't have told you that because that's not what we do is it not a regular operation that you do no it is not a regular operation i wouldn't have told you that because that's not what we do is it not a regular operation [Music] let's see we're here today for the defendant's motion to suppress i believe this hearing was set previously and resented today because the defendant was not present all right miss mitchell you'll be handling this for this date okay you may call me first witness okay sorry may take the witness stand we decided to swear the testimony should be true for the whole truth and nothing to do good afternoon sir please make sure to speak to the microphone so the court reporter can hear your testimony all right you may proceed miss mitchell thank you could you please state your full name and spell your last name for the record my name is keith viddler and my last name is spelling b is in victor id lar and mr midler are you currently employed i'm employed with the orange county sheriff's department and how long have you been employed i've been with the sheriff's office 18 years and of those 18 years what duties and assignments have you had i've been everything from road patrol to narcotics investigation undercover agent a partial interdiction squad a swat ert canine handler drug dog so your experience is substantial yes it is i'd like to call your attention to november 13th 2005. what were your duties on that particular day um that day i was a corporal supervisor for the sector 3 road patrol which is the pine house area and did you come into contact with somebody who would later be known to you as the defendant marian long yes i did and how is it that you came into contact with mr law in this particular evening we were on patrol in the area of the red carpet in 3956 west colonial drive which is known for its high activity of curbside drug sales and you say no known to you personally or just by reputation via area known to me personally by numerous rest out of that place okay and where were you when you first saw mr long um deputy sheriff deguard i were walking actually down the breezeway of the the motel now when you could explain this brief what you're referring to as a breezeway the motel is opened up on both sides so you park right in front of your room but it's got a walkway that runs in front of all the rooms and we're walking down that concrete area which would actually be in front of all the cars pull up to the hotel okay and um were you in a patrol vehicle or are you on foot patrol we were on foot the patrol vehicles were parked in the back of the hotel and it was who was the officer you were with uh deputy sheriff degraw mike degraw and other than you and deputy chef degraw was there anybody present with you on that particular evening not at that time though and where was mr long when you first saw him uh mr long i observed walking from the common area and getting into his vehicle and was there anything unusual about that i'm not at that point no and at some point did you end up making contact with the defendant yes when i walked between mr long's vehicle and the vehicle parked next to him i walked between the vehicles on mr long's driver's side he just started the vehicle and as i walked by and looked and he had his window down and sitting on the passenger seat right next to him was a a bottle that was half full it was a vodka bottle and as he passed by the vehicle where was he parked like was he facing towards the hotel rooms away from the hotel rooms he was facing towards a hotel room his car was pulled into the parking lot facing the hotel room then did you say you walked in between his car and the other car would be his driver's side yeah if you you got to board a rocket if you want i'm going to show you i'll get one for you and this this area this right in front of the hotel rooms yes it is and how's the lighting in that particular it's very well lit um you have the car lot with the honda dealership right next door to it that whole parking lot is illuminated matter of fact right there at the breezeway right there at the hotel there's a big light that lights up the whole parking lot of the dealership and the hotel there is real well lit too is this next to the honda dealership out on west 50 yes almost correct can i ask the witness to step down your arm yes you might if you could officer just as best you can hopefully your artistic abilities are better than mine draw the parking area where the two cars were your direction to travel with an arrow coming from the breezeway and the position of the defendant's car as opposed to the car next one that you walk between is that big enough yeah i can see it mr ayanah can you see that yes okay go ahead all right basically this hotel what it is it's one long building that goes up the center and there's rooms on both sides okay there's rooms on both sides so the parking the lot you can drive in you can drive all the way around and come back out and there's rooms on this side this is a two-story so there's rooms upstairs downstairs and on each level there's this concrete wall right right here in front of the rooms and then the parking lot is right before the cars and our cars are parked back here on this back side where we park our cars if you just put a p a p on and then a d on which one would be yeah and then his vehicle was pulling in like this but as for suspect vehicle and that's why i was walking up this way which would have been southbound i saw him come down and get into the vehicle and then i walked right between the vehicle that department's there and then his vehicle so i would walk his rider door was right here and his window was down the car was running and as i walked by i looked in and i could see him view these about seven months okay now are you aware of whether or not it's against the law to have an open container in a vehicle yes it is a violation of florida state statute and were you able to tell by when you walked by whether or not this bottle of vodka had been opened or if it was a sale container it was open it was half full okay and you were able to see this without any assistance correct did you ever at any time um prior to seeing this vodka bottle in plain view shiny light into the suspect's vehicle no no did you detain him in any way before having probable cause for the open container violation did you ask him to stop or engage in any kind of consensual encounter no my first approach to him was no stop you can't have that bottle there that's vodka that's alcohol and then i told him to turn the car off what happened once you witnessed the bottle and asked the defendant to turn the vehicle off once he turned the vehicle off and witnessed the bottle i looked in the back seat through his window and i could see on the floorboard some umbrella and again did you do this with any type of assistance be it a flashlight having to open the door was this awesome thank you i might use the flashlight i don't recall i know the first part no because it's well lit there but i think to look in the backseat as i was asking him for i did his id i was shining the light and looked in the backseat that would have been a common practice for me okay and at that time you noticed brillo and what's the significance of noticing brillo in the back seat um as i stated to him i said what do you what's the brother in the in the car for there's only one reason somebody would have brillo i said do you have any crack in the car at which time he freely responded by saying yes and um prior to him indicating that yes he had crack in the car and you asking him that question did you indicate at any time that he was being detained or placed under arrest for the open container no not at all and did you read him miranda warnings prior to asking that question did you feel you had a need to no he was still in the vehicle and he was still getting his identification out okay um what occurred once he admitted to having crack cocaine on him he then freely handed me a pack of cigarettes and said there's a piece of crack in the cigarette pack okay and what did you do next um at that time i asked him to go ahead and step out of the vehicle and he went ahead and stepped out of the vehicle for us and he was secured at that time and did you do a presumptive test on what you believed to be the crack cocaine yes i did and did it test positive for the presence of cocaine yes it did and were there any other interactions between you and defending on this predict particular evening other than taking him down to booking yeah i went ahead and read him as his rights and explain and uh want to know if you want to talk with us and he did um he explained to us that he was if i could stop you said you went ahead and read a miss white's rights did he wave those rights yes he did he fairly weighed him did he did you believe that he understood what it was you were saying to him the significance of making any further statements absolutely and what did this additional conversation consist of um it consists of him stating that he's been arrested for cocaine before he needed to pay for attorney fees so he picked this car up in bellevue and he was told to pick it up and drive it down to the executive end on the orange boston trail which i'm familiar with that place that is another place where a high level of curbside drug sales occur he said that he was supposed to just leave the keys in the car and walk away and somebody would come and take the cocaine out of the car and that was all he was getting was to do with the vehicle he was supposed to be there at midnight and what time was it that you made contact with i think we made contact it was like 11 30 or 11 o'clock is because what i try to do is get a team together to go ahead and do the the control delivery over to the executive end but by the time we got everybody together it was too late so you never made contact with this individual who's supposed to be on the receiving end correct were you ever able to verify who this vehicle was registered to um i don't recall i think it's registered to i'd have to look at the impound sheet start looking at the impound sheet do you have any further independent recollection of whether or not no i would have wrote it down on the impact sheet who is the vehicle wrong too okay and based on your conversation with the defendant um do you believe that he knew that there was illegal drugs in the vehicle absolutely and um was there a search conducted the vehicle yes there was and what did that search reveal deputy sheriff de grace searched the vehicle where he located a over 28 grams of cocaine in the uh i believe leaving located in the glove box of the vehicle and were you there at the time the search for the vehicle was conducted yes it was um did you see um deputy degraw find the cocaine uh he showed me where he found it i didn't see him physically by it but he showed me he he murdered me and showed me he said look here look what i found i have no further questions response mr ironic any questions deputy you may proceed deputy midler did i understand you correctly to say that when you walk past mr long's car he was already sitting in the car already sitting in the vehicle the vehicle was running correct and the vehicle was already running correct so before you walk by the car you got time to get in the vehicle close the door and turn on the engine correct and you were just walking by when you looked in and saw this bottle on the seat correct you stated you and deputy degraw were the only persons on the police officers there or something at that time that's correct you actually had numerous deputies there on the property correct no deputy degree and i were the only ones there and then matter of fact we called in some other after after weren't you in fact conducting an operation where you approached every person who you saw on that property that's not correct that's not correct that is not correct and what were you doing there regular routine patrol that area is known for its high activity of illegal curbside drug sales and we're investigating it numerous shootings yes i do do you remember telling me that you were approaching everybody who you saw on that property then i wouldn't have told you that because that's not what we do that's not what we do but secondly i haven't had a chance to read the deposition so if you've got a copy of it i'd like to read it i'd hate to do this i hadn't anticipated this i would ask for a convenience so that i can you know have the transcript the current deposition transcribed i would also have to have mr long found indigent since he's unable to afford it but that what i stated was there a tape of the deposition or was it a stenographer it would have been a stenographer i can get it okay because we would never approach everybody because we know half the people that live there all right mr arnica why don't you at this point just continue with whatever cross-examination you have of the witness and we'll address another issue separately all right so just so we're clear you're telling me we're not approaching everybody who you saw on that property no because we know people there so we wouldn't approach them and is it not a regular operation that you do to go to that property and stop everybody you see no it is not a regular operation no it is not a regular operation you just happened to be walking by mr long and saw the bottle in his car actually yes because i've never seen mr long on that property before so yes i would have happened to just walk by mr long as he got in the vehicle after you uh made the arrests in this case did you prepare some paperwork yes i did what it consists of consisted of a property form and a uh incident report and charging update i have obtained discovery a handwritten report on a form this is charging affidavit on the top is that something you prepared in this case my signature's on the bottom if you want to see it i could tell you and what would be the type form that describes the same incident what's that that's our razor report that's your incident before okay let me show you what appears to be your incident report in this case and asking you to recognize it yeah is that your report that's my incident report crime so did you in fact state in your incident before that you engaged in a consensual encounter with mr long as he was getting into this vehicle as he got into his vehicle that's correct isn't it true that you actually walked up to mr long as he was getting into his vehicle stood in front of his door when he closed it and asked him some questions about why he was there is that true isn't it true that that's what happened and then after that is when you saw the bottle in the car it is not true was the car moving at any time no it was not he just put it in reverse so as you were walking by and looking at the bottle he was putting the car in reverse let me get out and demonstrate for you exactly what it is because it'd be easier for you to help you understand as you walked by and looked into the car was he putting it in reverse yes and at that very moment is when you saw the bob correct and what did you say at that time i told him to stop the car shut it off as i testified earlier what was the uh what was it about the bottle that when you believe it was alcohol it was a seagram's vodka bottle a sebring's yeah was it how could you tell that it wasn't full because you could see the liquid at half it was half full was it standing up in the sea um i believe it was resting on the seat but you could see the liquid in there it wasn't a full bottle and do you remember precisely that it was sitting on the seat as opposed to in some other place yeah it was on the front seat it was on the front how was it did you recall that particular detail because i saw it do you recall telling me in deposition that you didn't remember exactly where the bottle was no i didn't tell you that in a deposition in your incident report that you just looked at you said that the bottle was a woolish emitted vodka bottle can you explain why you're now saying it was a sea room spot i made a mistake on the name yeah the name that's in the report is the name that's on the bottle what was the name again mr ionako it's i spelled w-o-l-e-s-e i'm sorry e-s-c-h-m-i-d-i-t yeah okay where was uh deputy duggar he was on the uh he was on the concrete walkway in front of the room that was in front of his car he was standing in front of mr long's car on the concrete walkway in front of that road in front of what's wrong where mr long's vehicle was parked because you park in front of the rooms well he was on the concrete walkway in front of mr long's car and also in front of the room correct correct standing directly in front of the car or off to the side somewhere in that general area did you use your radio at all you were talking mr law no not at that time no oh and you're saying you didn't have any other japanese there not at that time though there weren't some other deputies that were running to another car in the parking lot and later time yes after we we secured him and other deputies arrived because what he's talking about is after i was dealing with him another car ride that another deputy was looking for and they all ran said hey that car's here they all took off over there it had nothing to do with mr long and these were deputies that weren't even on the scene when you stopped from school no they weren't they were not on the scene at the time correct so how was it that they were looking for this other vehicle or something you up is that what you're saying that's what i did say correct but then when they saw this other vehicle they ran over to they broke and went over there correct why did they do that i don't know i was dealing with mr long so they were there to back you up but they instead ran over to another vehicle in the park correct and you don't know why not at that time i was dealing with mr long correct that's all the questions i have of this one thank you any redirect ms mitchell there you go sure okay any other witnesses for the state all right thank you stephanie you may step down mr i not go any witnesses for the defense it'll be fine okay so about your honor okay i do want to request because the deputy's testimony is pretty much completely different like he told me in that position i wouldn't ask the court to prevent me too before the deposition on my own that support would allow me to submit before consideration and that's only as the issue of whether they were whether he was stopping all of the individuals that he came into touch with came in contact with all right um i think it directly bears on his credibility because he that was in my motion that's not fine i would have ever come [Applause] so yeah go ahead that issue fits the size i don't think the court will be affordable on this mission because even if what the defense attorney is saying is true and the law enforcement were approaching every video on that property that thing is still a consensual encounter until found otherwise i don't really think that has been bearing on the merits as to whether or not the defendant has belongs constitutional right to arrival as it came to this particular case it may go as far as the waiting ability to witness but at this point other than him saying that there was a different testimony of the deposition in terms of poly officers of the contraband it is the state's burden to present testimony from testimony seizures lawful it's my position that iran did not face such ruling on this deputy's testimony given his contradictory testimony earlier it's my position he's not being truthful today and then his prior testimony will bear that out and the state has it well let me just ask this question aside from that issue in your motion to suppress you've indicated that since mr long was not operating a motor vehicle within the meaning of the open container statute that that would not form a basis for him to have stopped and inquired of your client anyway yes and that's based on the testimony from his report that he approached mr long as he was entering the vehicle but again that's different today also he's not saying that he actually had it in reverse and was backing up at the same moment i still don't believe that necessarily falls within the definition of operating on you because it was as he stated in a parking lot and i do have some case along that matter the gist of that issue is is different from the situation you normally deal with with a dui or a driving license in this case under this finger does require operation i haven't found any specific cases on what is meant other than operation other than that okay because even under dui statute if you have an individual who's behind the wheel of the car and the car is running even though the car's not moving i think the case law and the statute would support the fact that the person wasn't was in actual control of the vehicle a person sitting behind the military car was not sufficient until they changed the statue to put it in line with the e5 and the name of statues okay the um how long is it going to take you to get the transcript um would the court consider a obviously i would need that before i can do that i certainly believe based on what he owes me and with my knowledge situation that they wouldn't criteria if not i would necessarily necessarily transfer would get us for two weeks okay the um i'm not continuing i'm not continuing the hearing i'm just not going to make a ruling today and the um since we have one witness who's testified and has given testimony here today that mr ianako believes is 180 degrees from what he testified to in his deposition i i don't know what he testified to in the deposition because obviously i wasn't there and um the only thing that i can consider obviously is his testimony here today um i'm not going to continue to hearing what i'll allow you to do is give you an opportunity to get the deposition transcript and you can submit a memo of law in support of your motion and attach whatever it is you want you would have asked the witness about on cross-examination if you had the transcript and then ms mitchell when you get the memo you can file a written response if you want if any of you have case law that you'd like to give me now i'll take it now and consider that before i get the written submissions they do have some days which frankly is irrelevant based on his testimony today okay but um because i think based upon his testimony today okay did you file your motion to suppress after you took his deposition because that's where i got the information that he was that they were stopping everybody what's up okay strong okay well this is what i'll do miss mitchell if you have cases i'll take your cases as well and then um no but that's okay you just give me the statute number i can get that of that section that i quit foreign so as far as the question earlier whether or not that was sufficient without actually right okay but what's what's the statute number it's um three one six point one nine three six possession okay and also general propositions a lot well i think what mr iannaco is saying and just correct me if i'm wrong he agrees that based upon the officer's testimony here in court the suppression motion would be denied but what mr iannaco is saying is that the deputy's testimony today is inconsistent with the testimony that he gave at his deposition and that based upon the deposition testimony was the reason why he filed the motion to suppress arguably i'm not and again i don't know what the deposition testimony was but mr anako do i stand am i correct that you believed based upon his deposition testimony that there was a suppression issue based solely on the fact that they were stopping everyone and in your client's case it was not a consensual encounter the suppression is based on the fact that he detained him by virtue of walking up to his car and blocking his exit one of the cases i have is specifically on that issue um the whether they were stopping every vehicle is um doesn't directly relate to the basis for the stop the fact that he's denying the best case okay my basic argument is that gronk should not consider his testimony at all i think you'll see what i mean when you see his deposition transcript because what he said today was simply different in brief response off back painful unless there's something in the deposition that contradicts what the officer said today or i still don't think reports heard any evidence that this defendant's vehicle is blocked or prohibited or if there's any type and was getting ready to back up and i feel like i must be missing something please that helped me understand what this would be if that was if the demo testimony is the test testimony the way you believe you testified to you that well what you heard today i'm still not seeing an issue unless you're telling me he said you stopped the vehicle before he ever saw anything or in some way detained the defendant against him okay mr anako since you were there simply put your honor it is my position that once the court sees the deposition transcript you will agree that what you heard today is not to be believed and that it does not support the seizure in this case remember it's the state's burden in this case has alleged to warrant the seizure to prove that the seizure was valid through testimony in my position that you cannot accept his testimony as found at all based upon is clearly contradicting his own prior swan testimony on something that can be written off as just a lapse of memory okay so is it your belief that the deputy's testimony here today is significantly different from what he testified to in his deposition on material issues i mean not you know for example online okay okay [Music] out of the state request permission to call the other officers okay well quite honestly i've never had this issue come up where um i mean it's not something that i would imagine mr ayannaka would take lightly no not at all so um that's okay okay all right mr arnaka why don't you go ahead and order the deposition transcript if you'll send in a motion to have your client determine insolvent with the attack with an affidavit just for purposes of getting the transcript i'll sign that and then um i would ask that you submit a memo of law in support of your position let me give you a date for that [Music] okay do you think you'll be able to submit that by december 15th yes okay miss mitchell if you get your copy by december 15th how much time will you need to respond response by december 29th okay and then i'll take a look at it and if i'm i'm going to do one of two things when i get the written submissions i'm either going to write an order or i'm going to have everybody come back for a hearing okay um okay anything else well i guess the only thing we need to talk about is mr long's case is set for trial this month i'm doing a sexual battery case the first week in a murder case the second week so i didn't intend on getting this case anyway so i'm just gonna reset it to january um the pre-trial is january 12th trial period january 22nd and this will be the last time it'll be reset okay thank you and next year we'll be in um 18 d not 90. okay thank you very much everyone thank you i wouldn't have told you that because that's not what we do is it not a regular operation that you do no there's no regular operation i wouldn't have told you that because that's not what we do is it not a regular operation that you do no there's not a regular operation i wouldn't have told you that because that's not what we do is it not a regular that you do no it is not a regular operation [Music] [Music] you