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Failure to suppress the illegal traffic stop resulted in manifest injustice case reversed

Posted by John P. Rutkowski | Aug 23, 2017 | 0 Comments

Defendant petitioned the Court of Appeals for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. The appeals court found appellate counsel's failure to raise the trial court's error in denying Defendant's request to suppress the illegal traffic stop resulted in manifest injustice, where they reversed co-defendant's conviction on that basis. Because of that failure the appeals court granted the petition and vacated the defendant's conviction, and sentence for second degree murder, and sent the case back for a new trial.  


On the morning of July 30, 2008, there was a robbery at AMIGO Food Store in Pompano Beach. During the robbery, gunshots were fired and the store owner was killed. Several 911 calls prompted law enforcement to broadcast BOLOs about the suspects.

Starting at 9:52 a.m., a few minutes after the robbery, several be on the lookout (BOLOs) were broadcast. Prior to the first officer's arrival at the scene, the BOLOs described Haitian males fleeing westbound from the store on foot. From 9:52 a.m. until 10:02 a.m., the police stopped every black male near the convenience store -- some were on foot, others on bicycles.

The arresting officer received a radio call at approximately 9:56 a.m. and arrived near the perimeter of the crime scene within 2-4 minutes. The only BOLO he heard was for “two black males fleeing westbound from the store.” At the time of the stop, the officer had no further information about the suspects -- he had received no information describing clothing or a vehicle.

While driving within a few blocks of the crime scene, the arresting officer saw two black males in a red Dodge Charger travelling northbound and then eastbound. The two cars passed one another going in opposite directions. The officer observed the driver's dreadlocks and noted that the passenger was seated in the rear seat furthest away from the driver. The passenger wore a white t-shirt and a large hat the officer later described as an “old grandma church hat, or turban/1930's flapper hat drawn down to his eyebrows.” Neither the driver nor the passenger made eye contact with the officer, which the officer found suspicious.

Although the arresting officer witnessed no traffic violation, the sum of the odd seating arrangement, the backseat passenger's funny looking hat, and lack of eye contact, in conjunction with the outstanding BOLO, prompted the officer to make a U-turn and perform a traffic stop. After the officer activated his lights and the vehicle slowed down, the officer noticed a third black male in the front passenger seat. The arresting officer and an assisting officer approached the car with guns drawn.

The defendant was the passenger in the front seat, while co-defendant was the passenger in the back seat.

Each was charged with first-degree felony murder. Both defendants asked to suppress the traffic stop, arguing that the officer lacked reasonable suspicion. The trial court denied the motion after a joint hearing. The co-defendant was convicted as charged. The defendant was convicted of second degree murder as a lesser included offense and sentenced to forty years in prison.

Defendant's appellate counsel did not raise the denial of the motion to suppress on direct appeal and his conviction was upheld. Codefendant's counsel did raise the issue, and the appeals court reversed his conviction, holding that the trial court erred in denying the motion to suppress the traffic stop because the officer lacked reasonable suspicion. 

Defendant argued that his appellate counsel was ineffective for failing to argue that the trial court erred in denying the request to suppress. We grant the relief sought to prevent a manifest injustice.

About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-five years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice and representing clients in three states.


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John P. Rutkowski, Attorney at Law, firm represents clients in the area of driving under the influence, boating under the influence, Criminal & Civil Traffic Offenses. Contact me today for a free telephone consultation.