Petition for Writ of Certiorari — Edgar Vazquez, Petitioner v. United States
Supreme Court briefMay 13, 2024
Ask Donna
What actually matters in this document.
Text
_________________________
NO.______________________
_________________________
IN THE SUPREME COURT
OF THE
UNITED STATES
2023-2024 TERM
EDGAR VAZQUEZ
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
FROM THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JOFFE LAW, P.A.
Attorney for Petitioner
110 Tower Building
110 S.E. 6th Street
17th Floor, Suite 1700
Ft. Lauderdale, Florida 33301
Telephone: (954) 723-0007
Florida Bar No. 0814164
QUESTIONS PRESENTED
I.
WHETHER CERTIORARI REVIEW SHOULD BE GRANTED
WHERE THE ELEVENTH CIRCUIT ERRED IN AFFIRMING THE
DISTRICT COURT’S DENIAL OF VAZQUEZ’ MOTION TO
DISMISS OR IN THE ALTERNATIVE VAZQUEZ’ MOTION TO
SUPPRESS WITHOUT AN EVIDENTIARY HEARING.
II.
WHETHER CERTIORARI REVIEW SHOULD BE GRANTED
WHERE THE ELEVENTH CIRCUIT ERRED IN AFFIRMING THE
DISTRICT COURT’S DENIAL OF VAZQUEZ’ MOTION TO
DISMISS OR IN THE ALTERNATIVE VAZQUEZ’ MOTION TO
SUPPRESS.
i
TABLE OF CONTENTS
Page
Questions Presented ...........................................................................
i
Table of Contents ...............................................................................
ii
Table of Authorities ...........................................................................
iv
Opinion of the Court Below ...............................................................
2
Jurisdiction .........................................................................................
2
Constitutional Provisions ...................................................................
2
Statement of the Case.........................................................................
3
Reasons for Granting the Petition:
I.
WHETHER CERTIORARI REVIEW SHOULD BE
GRANTED WHERE THE ELEVENTH CIRCUIT ERRED
IN AFFIRMING THE DISTRICT COURT’S DENIAL OF
VAZQUEZ’ MOTION TO DISMISS OR IN THE
ALTERNATIVE VAZQUEZ’ MOTION TO SUPPRESS
WITHOUT AN EVIDENTIARY HEARING. .......................
8
WHETHER CERTIORARI REVIEW SHOULD BE
GRANTED WHERE THE ELEVENTH CIRCUIT ERRED
IN AFFIRMING THE DISTRICT COURT’S DENIAL OF
VAZQUEZ’ MOTION TO DISMISS OR IN THE
ALTERNATIVE VAZQUEZ’ MOTION TO SUPPRESS.....
10
Conclusion .........................................................................................
15
Certificate of Service .........................................................................
16
II.
ii
Appendices:
1.
United States of America v. Edgar Vazquez,
Case No.: 21-12061
(11th Circuit, March 28, 2023) (unpublished)..........................
2.
Order Denying VAZQUEZ’ Petition for Rehearing and
Petition For Rehearing En Banc Case No.: 22-13803-CC
and 22-13804-CC
(11th Circuit, February 6, 2024) ..............................................
iii
Table of Authorities
Cases
Pages
Grant v. United States, 282 F.2d 165 (2nd Cir.1960) ........................
8-9
Hill v. United States, 368 U.S. 424, 82 S.Ct. 468 (1962) ..................
11,16
Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) .........................
12-13
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 (1986) ..................
11
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) ...............................
14
United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235 (1979) .....
7,11,16
United States v. Arteaga, 807 F.2d 424 (5th Cir. 1986) .....................
13
United States v. Colón-Muñoz, 318 F.3d 348 (1st Cir.2003) ............
8
United States v. Cooper, 203 F.3d 1279 (11th Cir. 2000) .................
8,10
United States v. Davis, 313 F.3d 1300 (11th Cir. 2002).....................
14
United States v. McGough, 412 F.3d 1232 (11th Cir. 2005)..............
14
United States v. Nunez-Rios, 622 F.2d 1093 (2d Cir. 1980). ...........
12,13
United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993) ..........
15
United States v. Pawlak, 935 F.3d 337 (5th Cir. 2019) ......................
9,12-13
United States v. Poe, 462 F.2d 195 (5th Cir.1972) ............................
8
United States v. Richardson, 764 F.2d 1514 (11th Cir. 1985)............
7,8,9,10
United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) .............
15
iv
Table of Authorities
Continued
Cases cont’d
Pages
United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637 (1973). ........
12,13
United States v. Smith, 799 F.2d 704 (11th Cir. 1986) ......................
13-14
United States v. Wingender, 790 F.2d. 802 (9th Cir. 1986) ...............
12
United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980) .....................
12,13
Whern v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996) .........
14
Federal Statutes
28 U.S.C. §1254 .................................................................................
2
Federal Rules of Criminal Procedure
Rule 12(b)...........................................................................................
12,13
Rule 12(b)(3)(C) ................................................................................
10
Rule 12(c)(3) ......................................................................................
10
Eleventh Circuit Local Rules
Rule 40-3…………………………………………………………….. 5
Rule 35-2……………………………………………………………... 5
Rules of the United States Supreme Court
Rule 10.1 ............................................................................................
2
Rule 13.1 ............................................................................................
2
v
Table of Authorities
Continued
United States Constitution
Pages
Amendment V ....................................................................................
2
Amendment VI ...................................................................................
3
vi
____________________
NO._________________
____________________
IN THE
SUPREME COURT
OF THE
UNITED STATES
____________________
2023-2024 TERM
____________________
EDGAR VAZQUEZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________
PETITION FOR WRIT OF CERTIORARI
FROM THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________________________
The Petitioner, EDGAR VAZQUEZ, (hereinafter “VAZQUEZ”), by and
through his undersigned counsel, respectfully prays that a Writ of Certiorari issue to
review the opinion of the United States Court of Appeals for the Eleventh Circuit
entered in the proceedings on March 28, 2023.
1
OPINION OF THE COURT BELOW
The Court of Appeals for the Eleventh Circuit entered an unpublished opinion
affirming the District Court’s Sentence, United States of America v. Edgar Vazquez
on March 28, 2023. Appendix 1.
JURISDICTION
The judgment of the Eleventh Circuit Court of Appeals affirming the
Judgment of the United States District Court was entered on March 28, 203. The
Eleventh Circuit Court of Appeals entered its Order Denying VAZQUEZ’ Petition
for Rehearing and Petition for Rehearing En Banc on February 6, 2024. Appendix
2. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C.
§1254 and Rule 10.1, Rules of the Supreme Court. This Petition for Writ of
Certiorari is filed pursuant to Rule 13.1, Rules of the Supreme Court.
CONSTITUTIONAL PROVISIONS
UNITED STATES CONSTITUTION, AMENDMENT V
The Fifth Amendment to the Constitution provides, in relevant part that: “No
person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person … be deprived of life, liberty, or property, without due process
of law….”
2
UNITED STATES CONSTITUTION, AMENDMENT VI
The Sixth Amendment to the Constitution provides in relevant part that: “In
all criminal prosecutions, the accused shall enjoy the right … to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor; and to have the
assistance of counsel for his defence.”
STATEMENT OF THE CASE
1.
Course of Proceedings
On February 27, 2019, a grand jury returned a 2 count Indictment against
VAZQUEZ (DE:1). VAZQUEZ appeared for arraignment on March 6, 2019 and
entered his plea of not guilty. (DE:5).
On May 12, 2019, VAZQUEZ filed his Motion to Suppress. (DE:17).
On May 22, 2019, a three-count Superseding Indictment was issued against
VAZQUEZ. (DE:21).
The Superseding Indictment charged VAZQUEZ with
possession of cocaine with intent to distribute (Count I); possession with intent to
distribute 500 grams or more of cocaine (Count II); and possession of a firearm in
furtherance of a drug trafficking crim. (Count III). (DE.21).
On July 11, 2019, the District Court held an evidentiary hearing on
VAZQUEZ’s Motion to Suppress. (DE;40) VAZQUEZ’s Motion to Suppress was
denied by the District Court on August 1, 2019. (DE:41).
3
VAZQUEZ retained new counsel on or about November 4, 2019 and counsel
proceeded to file a Motion to Dismiss or in the Alternative Motion to Suppress on
February 5, 2020. (DE:74). The government filed a Response in Opposition to
VAZQUEZ’s Motion to Dismiss or in the Alternative Motion to Suppress on
February 19, 2020. (DE:80). On March 2, 2020, without holding an evidentiary
hearing, the District Court denied VAZQUEZ’s Motion to Dismiss or in the
Alternative Motion to Suppress. (DE:84).
VAZQUEZ went to trial on September 14, 2020. (DE:133). The government
announced that they would be dismissing Count I and only proceeding on Count II
and Count III. VAZQUEZ conceded guilt as to Count II but chose to defend against
Count III. (DE:133). On September 15, 2020, the jury returned a guilty verdict as
to Count II and a not guilty verdict for Count III. (DE:136). VAZQUEZ was
sentenced to 136 months imprisonment followed by 60 months of supervised release
on May 26, 2021. (DE. 168).
VAZQUEZ filed his Notice of Appeal on June 14, 2021 appealing only the
denial of his Motion to Dismiss or in the Alternative Motion to Suppress.
(DE:171,173).
The Eleventh Circuit Court of Appeals issued its opinion affirming the District
Court’s denial of VAZQUEZ’s Motion to Dismiss or in the Alternative Motion to
Suppress on March 28, 2023. The Mandate was issued on April 26, 2023. (DE:196,
4
197). VAZQUEZ never received the Appellate Court’s opinion, either from the
Court or his counsel. Because of no communication, VAZQUEZ submitted a pro se
motion to the Appellate Court requesting information regarding the appeal. The
Appellate Court then sent VAZQUEZ the Eleventh Circuit’s decision around April
25, 2023, but VAZQUEZ was never advised of any deadlines or the procedure to
file a Petition for Rehearing or anything, In fact, VAZQUEZ did not hear from his
attorney, Mr. Fletcher until June 2, 2023, and the only information given to him by
his lawyer was that the matter was affirmed. As such, due to VAZQUEZ not
knowing about the opinion being rendered, VAZQUEZ was unable to file his
Petition for Rehearing and Petition for Rehearing En Banc in accordance with 11th
Cir. R. 40-3 and 11th Cir.R. 35-2.
VAZQUEZ filed his Motion to File his Petition for Rehearing and Petition for
Rehearing En Banc Out of Time. Said Motion was granted and VAZQUEZ filed his
Petition for Rehearing and Petition for Rehearing En Banc. VAZQUEZ’ Petition for
Rehearing and Petition for Rehearing En Banc was denied February 6, 2024.
2. Statement of the Facts.
a.
The Offense Conduct.
On September 13, 2018, Deputy C. Rodriguez of the Lee County Sheriff’s
Office began following VAZQUEZ’ 2008 Ford Edge. Deputy Rodriguez was
5
instructed by other law enforcement officials to do a traffic stop in order to stop
VAZQUEZ. (Appendix to VAZQUEZ’s Initial Brief 5, pages 5-9).
Deputy Rodriguez stated that he observed VAZQUEZ’ vehicle and as he was
pulling up adjacent to it, it “abruptly slowed down . . . it was a sudden decrease in
speed. I noticed the cars next to me which were behind him had to slow down…
which in my experience . . . could have caused a major accident”. (Appendix to
VAZQUEZ’s Initial Brief 5, pages 15-16). Deputy Rodriguez stated everyone was
going about 45 miles per hour and slowed down to about 20 miles per hour and then
picked up to speed. As a result of said action, Deputy Rodriguez initiated a traffic
stop and issued VAZQUEZ a warning citation for improper breaking. (Appendix to
VAZQUEZ’s Initial Brief 5, page 23).
During the traffic stop other deputies arrived and Detective Oro, utilizing his
K-9 JOJO conducted a free air sniff of the vehicle. The canine allegedly alerted, and
a subsequent search of the vehicle found a significant quantity of cocaine in a
vacuum sealed bag underneath the driver’s seat. (Appendix to VAZQUEZ’s Initial
Brief 3, page 1)
b.
VAZQUEZ’s Motion to Dismiss or in the Alternative Motion to
Suppress.
VAZQUEZ alleged in his Motion to Dismiss or in the Alternative Motion to
Suppress filed February 5, 2020, that newly discovered evidence to wit: that the
6
black Chrysler 200 that was approaching quickly behind him, and that caused him
to brake as he did, leading to his traffic stop, was in reality being driven by Special
Agent Murray who apparently was investigating VAZQUEZ. (DE:74).
A.
The Eleventh Circuit Erred in Affirming The District Court’s Denial
Of VAZQUEZs Motion to Dismiss or in the Alternative Motion to Suppress
Without an Evidentiary Hearing.
The affirming of the District Court’s denial of VAZQUEZ’ Motion to Dismiss
or in the Alternative Motion to Suppress without an evidentiary hearing was in
violation of VAZQUEZ due process rights. A defendant is entitled to a hearing on
his suppression motion if he “allege [s] facts that, if proved, would require the grant
of relief.” United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985).
VAZQUEZ’ Motion alleged sufficient facts that clearly required the granting of the
relief sought and therefore an evidentiary hearing should have been held.
B.
The Eleventh Circuit Erred in Affirming The District Court’s Denial
Of VAZQUEZ’s Motion to Dismiss or in the Alternative Motion to Suppress
Without an Evidentiary Hearing.
The affirming of the District Court’s denial of VAZQUEZ’ Motion to Dismiss
or in the Alternative Motion to Suppress clearly was a miscarriage of justice. see
generally, United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235 (1979).
7
REASONS FOR GRANTING THE PETITION
I.
CERTIORARI REVIEW SHOULD BE GRANTED WHERE
THE ELEVENTH CIRCUIT ERRED IN AFFIRMING THE
DISTRICT COURT’S DENIAL OF VAZQUEZ’ MOTION TO
DISMISS OR IN THE ALTERNATIVE VAZQUEZ’ MOTION
TO SUPPRESS WITHOUT AN EVIDENTIARY HEARING.
Whether to hold an evidentiary hearing on a defendant's allegations is
determined by the District Court on a case by case basis. United States v. Poe, 462
F.2d 195, 197 (5th Cir.1972). The granting of an evidentiary hearing lies within the
District Court's sound discretion, and the denial of an evidentiary hearing is reviewed
for abuse of that discretion. United States v. Colón-Muñoz, 318 F.3d 348, 358-59
(1st Cir.2003).
A defendant is clearly entitled to a hearing on his suppression motion when
he “allege[s] facts that, if proved, would require the grant of relief.” United States
v. Cooper, 203 F.3d. 1279 (11th Cir. 2000). It is not sufficient for defendants to
“’promise’ to prove at the evidentiary hearing what they did not specifically allege
in their motion to suppress.” United States v. Richardson, 764 F.2d 1514, 1527 (11th
Cir.1985). In other words, the Defendant's Motion must raise factual allegations
which, if established, would warrant relief. Grant v. United States, 282 F.2d 165,
8
170 (2nd Cir.1960). There must be some specific factual basis underlying the
defendant's constitutional theory of suppression. At a minimum, this is necessary to
alert the District Court what wrong the defendant complains of.
In the case at hand, VAZQUEZ’ Motion clearly “allege[s] facts that, if proved,
would require the grant of relief.” In the case at hand, VAZQUEZ clearly alleged
facts sufficient to assure that if proven, would grant VAZQUEZ the relief he was
seeking. After all VAZQUEZ clearly alleged sufficient facts to support his argument
that the alleged probable cause relied upon by law enforcement to arrest and search
VAZQUEZ’ car was based upon the outrageous conduct by law enforcement to wit:
the actions of law enforcement that led to an unlawful pretextual traffic stop of
VAZQUEZ. VAZQUEZ alleged that Agent Murray was driving a black Chrysler
200 model vehicle with dirt rims. VAZQUEZ further alleged that he “had observed
this same vehicle on several previous occasions parked at the Fresh Cuts Studio in
Ft. Myers, located at 2158 Colonial Boulevard. (DE:74). The due process clause
protects defendants from outrageous conduct by law enforcement. Therefore,
because VAZQUEZ alleged sufficient facts of “outrageous conduct” on the part of
law enforcement, an evidentiary hearing should have been held to further investigate
VAZQUEZ claim as to the actions of law enforcement. See generally, United States
v. Pawlak, 935 F.3d 337 (5th Cir. 2019); United States v. Richardson, 764 F.2d 1514
(11th Cir. 1985). However, because it was not, supports VAZQUEZ’ argument that
9
the Eleventh Judicial Circuit erred in affirming the denial of VAZQUEZ’ Motion to
Dismiss and or in the alternative Motion to Suppress and therefore his Petition for
Writ of Certiorari Review must be granted in order to avoid a miscarriage of justice.
II.
CERTIORARI REVIEW SHOULD BE GRANTED WHERE
THE ELEVENTH CIRCUIT ERRED IN AFFIRMING
THE
DISTRICT COURT’S DENIAL OF VAZQUEZ’ MOTION TO
DISMISS OR IN THE ALTERNATIVE VAZQUEZ’ MOTION
TO SUPPRESS.
‘A motion to suppress must in every critical respect be sufficiently definite,
specific, detailed, and nonconjectural to enable the Court to conclude that a
substantial claim is presented.... A court need not act upon general or conclusory
assertions....’ ” United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000)
(quoting United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985))
(emphasis added).
Fed.R.Crim.P. 12(b)(3)(C) mandates that all motions to suppress evidence be
raised by pretrial motion “if the basis for the motion is then reasonably available.”
Under Fed.R.Crim.P. 12(c)(3), if a motion to suppress is untimely, the District Court
may consider the motion if the party shows good cause for the delay. The motion
must allege facts which, if proven, would provide a basis for relief.
10
VAZQUEZ argues that he has shown good cause for the delay because he was
not provided the information regarding Special Agent Christopher Murray and the
car he was driving at the time of the search of VAZQUEZ’ car. VAZQUEZ argued
in his Motion that “Agent Murray was driving a black Chrysler 200 model vehicle
with dirt rims.” VAZQUEZ further alleged that he “had observed this same vehicle
on several previous occasions parked at the Fresh Cuts Studio in Ft. Myers, located
at 2158 Colonial Boulevard. (DE:74)(VAZQUEZ’ Initial Brief, page 5). This in and
of itself was sufficient allegations to show that because the information was not
known by VAZQUEZ, due to the government not advising him of same, that
VAZQUEZ has shown sufficient facts to support “good cause” for the Motion to
Dismiss or in the Alternative Motion to Suppress being file untimely.
Even if said allegations were not found to be “good cause” for the untimely
filing, the District Court should have still allowed the Motion to be ruled upon in
order to avoid a “miscarriage of justice”. The term “miscarriage of justice” is when
the error complained about by a defendant is “a fundamental defect which inherently
results in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424,
428, 82 S.Ct. 468 (1962); see also United States v. Addonizio, 442 U.S. 178, 185, 99
S.Ct. 2235 (1979). When this occurs, Courts have the equitable power to consider
an issue notwithstanding the existence of a procedural bar. See Murray v. Carrier,
477 U.S. 478, 495-496, 106 S.Ct. 2639, 2644 (1986). VAZQUEZ argues that even
11
if the Motion was untimely and he failed to show “good cause” for it being untimely,
that same must and should have been ruled upon and granted in order to avoid a
“miscarriage of justice”.
Based upon caselaw and the allegations alleged by
VAZQUEZ, this Court must find that VAZQUEZ Motion should have been deemed
timely under this exception to the procedural default doctrine.
In addition, the Eleventh Circuit should have reversed the District Court’s
denial of VAZQUEZ Motion due to the allegations made by VAZQUEZ regarding
the outrageous conduct of the law enforcement. Case law is clear that “outrageous
conduct of law enforcement” is properly raised in a Motion to Dismiss and that is
what VAZQUEZ did. United States v. Wingender, 790 F.2d. 802 (9th Cir. 1986).
VAZQUEZ argues that the actions by law enforcement to orchestrate the
reason for a “viable” traffic stop to wit: causing VAZQUEZ to “put on his brakes”
clearly was “outrageous conduct” and clearly “violated the fundamental fairness,
showing to the universal sense of justice, mandated by the Due Process Clause of
the Fifth Amendment.” United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637
(1973). Therefore, VAZQUEZ’ Motion raised an issue of law for the court and was
properly raised by a pretrial motion to dismiss the indictment. Fed.R.Crim.P. 12(b).
See United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980). United States
v. Wylie, 625 F.2d 1371, 1378 (9th Cir. 1980). Not to grant VAZQUEZ Motion
clearly tantamounted to a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d
12
679 (Fla. 2000). After all, “[t]he due process clause protects Appellants against
outrageous conduct by law enforcement agents.” United States v. Pawlak, 935 F.3d
337, 344 (5th Cir. 2019)(quoting United States v. Arteaga, 807 F.2d 424,426) (5th
Cir. 1986). It is quite clear that the government’s actions were outrageous and
because of said action, the Eleventh Circuit should not have affirmed the District
Court’s denial of VAZQUEZ’ Motion to Dismiss or in the Alternative Motion to
Suppress since the prosecution against VAZQUEZ was developed through said
outrages conduct. “We may some day be presented with a situation in which the
conduct of law enforcement agents is so outrageous that due process principles
would absolutely bar the government from invoking judicial processes to obtain a
conviction....” United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637(1973).
VAZQUEZ’ Motion raised an issue of law for the court and was properly raised by
a pretrial motion to dismiss the indictment. Fed.R.Crim.P. 12(b). See United States
v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980). United States v. Wylie, 625 F.2d
1371, 1378 (9th Cir. 1980). Therefore, VAZQUEZ’ Petition for Writ of Certiorari
Review must be granted.
Furthermore, the Eleventh Circuit failed to consider the fact that said alleged
traffic stop that led to the search of the vehicle and the arrest of VAZQUEZ was a
pretextual stop and it is clear that law enforcement, created the “alleged traffic stop”
in order to create probable cause to stop the vehicle. See generally, United States v.
13
Smith, 799 F.2d 704 (11th Cir. 1986). Said traffic stop clearly violated VAZQUEZ’
Fourth Amendment rights because there was no valid probable cause nor was there
reason to believe that a traffic violation had occurred. It is clear that the stop was
orchestrated by the government so that Deputy Rodriguez would in fact stop
VAZQUEZ. Clearly the District Court and this Court should have found that the
government intentionally created the violation so that they could benefit from said
“alleged illegal traffic activity” and create “probable cause” for the traffic stop,
search and arrest.
Even if the traffic stop was warranted as a result of the alleged “braking”, said
traffic infraction would only have given probable cause for the initial stop; not the
search of the vehicle. See generally, Whern v. United States, 517 U.S. 806, 116 S.Ct.
1769 (1996). Law Enforcement had to have probable cause to support their search
of the vehicle and the confiscation and not just mere suspicion that contraband might
be found. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). The burden is on the
government to demonstrate that the police had probable cause to conduct a
warrantless search. See, United States v. McGough, 412 F.3d 1232 (11th Cir. 2005);
see also, United States v. Davis, 313 F.3d 1300, 1302 (11th Cir. 2002). In the case at
hand there was no probable cause for the search. Therefore, the Eleventh Circuit’s
opinion affirming the District Court’s denial of VAZQUEZ’ Motion to Dismiss or
in the Alternative Motion to Suppress was unfounded.
14
Clearly a reading of
VAZQUEZ’ Motion and the facts alleged in the Motion supports VAZQUEZ’
argument that the search of his vehicle and the confiscation of the evidence was
without probable cause and was based upon law enforcement’s outrageous conduct.
Accordingly, the fact that the District Court surmised the Motion was untimely
and/or that said Motion failed to allege sufficient facts to warrant either a dismissal
of the superseding indictment or suppression of the evidence and same was affirmed
by the Eleventh Circuit, VAZQUEZ’ request for Certiorari review by this Honorable
Court must be granted in order to avoid another miscarriage of justice.
CONCLUSION
This Court should explicitly adopt VAZQUEZ’ position based upon law and
equity. The upholding of the Eleventh Circuit’s opinion affirming the District
Court’s failure to have an evidentiary hearing on VAZQUEZ’ Motion to Dismiss or
in the Alternative Motion to Suppress seriously affects the fairness, integrity and
public reputation of the judicial proceedings. See generally, United States v.
Rodriguez, 398 F.3d 1291 (11th Cir. 2005); United States v. Olano, 507 U.S. 725,
113 S.Ct. 1770 (1993).
Furthermore, the denial of VAZQUEZ’ Motion to Dismiss or in the
Alternative Motion to Suppress was an abuse of discretion by the District Court and
the affirmance of same by the Eleventh Circuit was clearly a miscarriage of justice.
15
Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468 (1962); see also United States
v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235 (1979).
For all of these reasons and in the interest of justice, the Petitioner, EDGAR
VAZQUEZ, prays that this Court will issue a Writ of Certiorari and reconsider the
decision below.
Respectfully submitted,
JOFFE LAW, P.A.
Attorney for VAZQUEZ
The 110 Tower Building
110 S.E. 6th Street
17th Floor, Suite 1700
Ft. Lauderdale, Florida 33301
Telephone: (954) 723-0007
Facsimile: (954) 723-0033
davidjjoffe@aol.com
By___________________________
DAVID J. JOFFE, ESQUIRE
Florida Bar No. 0814164
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
mailed this 30th day of April, 2024, to the SOLICITOR GENERAL OF THE
UNITED STATES, Room 5614, Department of Justice, 950 Pennsylvania Avenue,
N.W., Washington, D.C. 20530-0001.
By_________________________
DAVID J. JOFFE, ESQUIRE
16
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.