Filing # 90085811 E-Filed 05/24/2019 11:52:47 AM

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR PINELLAS COUNTY
CRIMINAL DIVISION
THE STATE OF FLORIDA, UCN: 2016CF13655000APC
REF: 16-13655-CF
VS. UCN: 522016CF13720000APC
REF: 16-13720-CF
JAMES E. RYBICKI, Division: C
Defendant.
/

THIRD AMENDED MOTION TO SUPPRESS SEARCH WARRANT

—
The Defendant, JAMES E. RYBICKI, through his undersigned attorney, pursuant to Rule

3.190(g), Fla. R. Crim. P., respectfully moves this Court to suppress all evidence seized afier the

execution of a search warrant on the Defendant’s home and as good grounds would show:

1. On the Pinellas County Sheriffs Office executed a search

warrant at the Defendant’s residence. The affidavit for search warrant and the search

warrant state there was probable cause to believe that the Defendant’s home was

being used for the purpose of storing images, and/or visual depictions of a child

victim, that is relevant to proving a violation of Florida Statute Section §787.02, False

Imprisonment, and the premises’ contained evidence of, or evidence related to

proving that said crime has been or is being committed.

2. The Defendant was arrested and charged with of Possession of Child Pornography, in

violation of §827.071 (5); Promoting a Sexual Performance by a Child, in violation of

§827.071(3); Lewd and Lascivious Molestation, in violation of §800.04(5)(b) and

Video Voyeurism in violation of §81 0. 145(8)(a).

3. The State Attorney’s Office filed a no information for the False Imprisonment charge

on January 12, 2017 (See attached Exhibit A).

***ELECTRONICALLY FILED 05/24/2019 11:52:47 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
4. The allegation related to the False Imprisonment charge occurred sometime in the

early summer of 2014 and was reported to the Pinellas County Sheriffs Office on

August 2, 2016.

5. During his deposition on November 17, 2017, Detective Michael Alvarez, formerly of

the Pinellas County Sheriffs Office, made several statements regarding the staleness

of the allegation pertaining to the False imprisonment charge being almost three years

old, that he was not sure that a crime had been committed and that he was not

comfortable arresting the Defendant for False Imprisonment. Detective Alvarez stated

the following:

a. He did not necessarily believe a crime had been committed at the time when

he interviewed the alleged victim,- (Deposition page 28 lines 22—25; page

30 lines 1-6).

b. “I know there was a little bit of issues with the staleness of it as far as When

the disclosure came up.” (Deposition page 29 lines 16-18).

c. “I determined the disclosure itself was really too old to actually charge Mr.

Rybicki with false imprisonment. I was not comfortable with going and

putting handcuffs on him for that.” (Deposition page 68 lines 7-10).

d. “It was an 01d disclosure, like I said, you’re talking almost three years from the

time that it happened till the time I found out about it.” (Deposition page 60

lines 15-17).

e. “I just don’t feel comfortable based 0n the disclosure being so old to go ahead

and put cuffs on Mr. Rybicki, I mean it’s a three year old allegation.”

(Deposition page 144 lines 1-3).

6. Detective Alvarez provided further information about his conversations with the

prosecutors in the sex crimes division of the State Attorney’s Office and stated that, “I

really needed assistance from the State Attorney’s Office because at the time I really

honestly could not find anything as far as allegations being made for anything fitting a

crime.” (Deposition page 58 lines 14-1 8).

Detective Alvarez stated that it was a prosecutor in the sex crimes division (not the

prosecutor currently handling the Defendant’s case) that suggested the False

Imprisonment statute as an avenue to obtain a search warrant. Detective Alvarez

stated that these conversations With the prosecutors took place from August of 2016

until December of 2016 (Deposition page 57 lines 14-20; page 80 lines 18-25).

Detective Alvarez acknowledged that there was never an intention by the State

Attorney’s Office or the Pinellas County Sheriff s Office to formally arrest or charge

the Defendant with False Imprisonment (since it was such an old disclosure) and this

charge was only used as a basis to obtain a search warrant for the Defendant’s home

(Deposition page 60 lines 1—22).

Detective Alvarez further stated that the prosecutor assigned to the case represented to

him that her supervisor would not authorize an arrest warrant for the False

Imprisonment charge and that this conversation took place a few days before the

search warrant for the Defendant’s home was drafted (Deposition page 70 lines 12—

20; pages 71-72).

10. Detective Alvarez admitted that if the judge signing the search warrant had asked

him if it was really his intent to search the house for evidence of false imprisonment,
 that he would have stated that he was using the false imprisonment charge as a reason

to gain access to the home to look for “bigger fish.” (Deposition page 99 lines 16-25).

11. Detective Alvarez further admitted that this was the first time he ever wrote a search

warrant specifically for an allegation of false imprisonment for the purpose of

searching for other digital evidence in a house (Deposition page 140 lines 19-25).

12. The basis for suppression is based on the following omissions from the affidavit for

search warrant: a) Detective Alvarez’s admission that based on the alleged victim’s

statements that he was unsure if a crime had been committed; b) the staleness of the

disclosure being almost three years old; c) using the False Imprisonment charge

(which Detective Alvarez was not comfortable arresting the Defendant for) as the

basis to enter the Defendant’s home to see if there was evidence of child

pornography; and d) information as it related to the decision having been made (prior

to the drafting of the affidavit for search warrant and search warrant) that the

Defendant would not be arrested for or charged with a False Imprisonment charge.

13. Events more than sixteen months old with no evidence beyond speculation of an

ongoing pattern of criminal activity are considered to be stale. Haworth v. State, 637

So.2d 267, 268 (Fla. 2d DCA 1994).

14. In considering a motion to suppress a search warrant, an evidentiary hearing is

warranted Where the defendant makes a substantial preliminary showing that (1) the

affiant knowingly or intentionally, or with reckless disregard for the truth, made

untruthful statements or omitted important facts and (2) the untrue facts were

necessary for the finding of probable cause or the omitted facts, “if added to the
 affidavit, would have defeated probable cause.” Murray v. State, 155 So.3d 1210,

1217 (Fla. 4th DCA 2015) citing Pagan v. State, 830 So.2d 792, 807 (Fla. 2002).

15. The Second district has explained the dynamics of such a hearing under Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if a defendant makes a

substantial preliminary showing that the affiant knowingly or with reckless disregard for

the truth included a false statement in the affidavit and that statement was necessary t0

the finding of probable cause, the circuit court must hold a hearing. If the defendant

establishes these allegations by a preponderance 0f the evidence, the coutt must suppress

the fruits ofthe search. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d

667 (1978). The federal courts have extended the reasoning of Franks to apply to an

allegation that law enforcement omitted material facts with the intent to make, or in

reckless disregard of Whether thereby made, the affidavit misleading. United States v.

4th Cir.
Colkey, 899 F.2d 297, 300 (Fla. 1990). (citing United States v. Reivich, 793 F.2d

957, 961 (8th Cir. 1986)); see also Johnson V. State, 660 So.2d 648,656(Fla. 1995)

(adopting the reasoning of Cockley to extend Franks to apply to material omissions

resulting from “intentional or reckless police conducts that amounts to deception”).

Piliecz‘ v. State, 155 So.2d 883, 893 (Fla. 2d DCA 2008).

16. To meet the Franks test, police conduct must rise to the level of hoodwinking or

bilking, duping the issuing judge or magistrate into signing the warrant; that is, an

allegation the affiant had information she knew should be included in the affidavit and

failed to include it either intentionally or recklessly with the idea that omission would

then sway the issuing judge 0r magistrate in her favor. State v. Petroni, 123 So.3d 62, 65

(Fla. 1“ DCA 2013) citing State v. Johnson, 660, so. 2d 648, 655—656 (Fla. 1995).
l7. The Florida Supreme Court considered the problem of omissions in affidavits and

held that as applied to omissions in probable cause affidavits, the Franks standard applies

except that (1) the reviewing court must determine whether the omitted material, if added

t0 the affidavit, would have defeated probable cause, and (2) the reviewing court must

find that the omission resulted from intentional or reckless police conduct that amounts to

deception. State v. Johnson, 660, So. 2d 648, 656 (Fla. 1995).

18. A fact constitutes a material omission if a substantial probability exists that

knowledge of the omission would have altered a reasonable magistrate’s probable cause

determination. State v. Panzino, 583 So.2d 1059, 1062 (Fla. 5th DCA 1991). In

determining whether a material omitted fact should invalidate the search warrant, the

reviewing court must view the affidavit as if it had included the omitted fact and then

determine whether the affidavit provides sufficient probable cause. Id at 1062.

19. The Defendant’s burden is to make a substantial preliminary showing that Detective

Alvarez (1) knowingly or intentionally, or with reckless disregard for the truth included a

untruthful statements or omitted important facts in the affidavit and (2) the untrue facts

were necessary for the finding of probable cause and the omitted facts, if added to the

affidavit, would have defeated probable cause. Murray v. State, 155 So.3d 1210, 1217

(Fla.
4th DCA 2015) citing Pagan v. State, 830 So.2d 792, 807 (Fla. 2002).

20. When the affidavit for search warrant and search warrant were presented to Judge

Covert on December 8, 2016, Detective Alvarez, co-affiant Detective Michael Baute, and

prosecutor Allie Fugate appeared before Judge Covert in his chambers. At that point the

decision had already been made weeks before to not proceed with prosecution on the
False Imprisonment charge; however neither affiant informed Judge Covert of that

decision.

21. When Detective Alvarez was asked What would have happened if Judge Covert did

not sign off on the search warrant he stated, “I think if I would have gotten shot down that

day when I presented the warrant to the judge, I don’t honestly think there would have

been any other nexus for me to have had a warrant” (Deposition page 143 lines 7-9).

22. When Detective Alvarez was asked how he would have responded if the judge

inquired why they were asking for everything else in the warrant beyond photographs of

one person, Detective Alvarez responded, “You know, I’m glad I didn’t have to answer

that question” (Deposition page 143 lines 20-21).

23. Detective Alvarez was able to obtain a search warrant for the Defendant’s home

utilizing the False Imprisonment charge as the basis for the search warrant when he never

intended on arresting the Defendant for that charge.

24. Detective Alvarez was able to obtain this search warrant using the False

Imprisonment charge while knowing the State of Florida had no intention of prosecuting

the Defendant for the charge.

25. Detective Alvarez was able to obtain this search warrant despite knowing and

withholding the following information from the affidavit for search warrant: a) that the

disclosure by the alleged Victim was stale (being almost three years 01d; b) that he was not

comfortable arresting the Defendant for False Imprisonment and c) that he did not

necessarily believe that a crime had been committed based on the disclosure of the

alleged Victim.
26. A11 of this information was willfully withheld from Judge Covert and the “no

information” was intentionally filed after the execution of the search warrant, although

the decision not to proceed with prosecution was made well in advance of the drafting of

the search warrant. This intentionally deceptive behavior on the part of Detective Alvarez

was intended to sway Judge Covert into signing the search warrant. This information if

added to the search warrant would have defeated probable cause.

27. Detective Alvarez knowingly, and with reckless disregard for the truth, included a

false statement in the affidavit for search warrant When he stated that there was probable

cause to believe the crime of False Imprisonment had occurred at the Defendant’s

residence and there would be evidence related to that crime contained in the Defendant’s

residence. This information was necessary to the finding of probable cause to issue the

search warrant for the Defendant’s home because it was the alleged felony charge that the

search warrant was predicated on. This was a false statement because Detective Alvarez

felt a) that the disclosure by the alleged Victim was stale (being almost three years 01d; b)

that he was not comfortable arresting the Defendant for False Imprisonment and c) that he

did not necessarily believe that a crime had been committed based on the disclosure of the

alleged Victim. All of these facts show that Detective Alvarez did not feel that there was

probable cause for a False Imprisonment charge.

28. It is inconceivable to believe that a judge would still sign a search warrant if these

facts and omission had been included in the affidavit for search warrant.

29. The Defendant has made a substantial preliminary showing that (1) Detective

Alvarez knowingly or intentionally, or with reckless disregard for the truth, made

untruthful statements or omitted important facts and (2) the untrue facts were necessary
for the finding of probable cause and the omitted facts, if added to the affidavit, would

have defeated probable cause.

30. A search warrant affidavit deemed facially sufficient to establish probable cause

necessary to issue a search warrant, but which the defendant establishes was based upon

law enforcement’s knowing or reckless and material false statements or omissions will

require application of the exclusionary rule. Pilieci v. State, 991 So.2d 883, 896 (Fla. 2d

DCA 2008).

FA CTUAL BASIS FOR AMENDMENT 0F MOTION T0 SUPPRESS

3 1. During the evidentiary hearing held on November 30, 201 8 two additional grounds

—
for suppression emerged. The first additional ground for suppression was that the statute

0f limitations for a false imprisonment charge had expired. The Court heard testimony

from Detective Alvarez and argument from defense counsel and the State on this issue.

_ —. _
32. The second ground for suppression was discovered during the State of Florida’s

when

-
closing argument State admitted that the alleged Victim

specifically the State stated the following, - lives with—

was -wou1d go to

-a11 the time.” (Motion to Suppress Transcript of Proceedings page 281 lines 2-9).

33. This is the first time undersigned counsel

had evidence

fact
that the alleged Victim admitted

was not contained

to—
was put on notice that the State of Florida

in the police report or the affidavit for search warrant.

This

34.

located two witnesses who Will corroborate that—

Based on this representation, undersigned counsel investigated this allegation and
35.

—of
— 0—
Rybicki’s

-
“Was not the
is

investigation. Mrs.

While babysitting

home to
the_

her—,
babysit her

going “in and out” of Mr. Rybicki’s

get a beverage or a

least bit concerned

further represented

inside of Mr. Rybicki’s

abou_
that—
home and that

being inside of Mr. Rybicki’s home.

—
home.—
snack.—
_
The-sisters were

Mr. Rybicki and were interviewed by law enforcement as part of their

- —between four and

knew that
often

the_
five times a week.

went into

being at Mr. Rybicki’s home.”

did not obj ect to the children

Mr.

were

—
36. Fred Meyers is a neighbor of Linda Kramer and former neighbor of Mr. Rybicki. Mr.

Myers represented that he observed -. and her brother g0 back and forth t0 Mr.

Rybicki’s home. Mr. Meyers stated that, based on his observations, it appeared that Mr.

—were
Rybicki allowed to go inside 0f his home and

FA CTUAL BASIS FOR SECOND AMENDMENT 0F MOTION T0 SUPPRESS

inside Mr. Rybicki’s
that-
home.

37. Dustin McKay is

sa_
a former neighbor of Linda Kramer and Mr. Rybicki. Mr.

_
McKay

—
represented that he hanging around Mr. Rybicki’s yard and

going in and out of Mr. Rybicki’s house. Mr. McKay stated that it appeared

knew that her great grandchildren going to and from Mr. Rybicki’s home.

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 38. Barbara Moss is a former girlfriend of Mr. Rybicki’s who spent time at his residence

from the years 2008-201 Ms. Moss represented

. that she often sav- and—
inside of Mr. Rybicki’s home. Ms. Moss further represented that she would observe

—sitting on her front porch or looking outside of her Window

whil_ would be at Mr. Rybicki’s home.

39. Florida Statute §787.02 states that confinement of a child under the age of 13 is

“against the child’s will if such confinement is without the consent of the child’s parent

or legal guardian.”

_
40. The fact that-went over to Mr. Rybicki’s home “all the time” is another example

of a material omission from the search warrant which, if added, would have defeated a

finding of probable cause for false imprisonment by the issuing magistrate.

41. Furthermore, if was aware that that-was inside Mr.

Rybicki’s home, it would eviscerate a basis for the charge of false imprisonment.

FA CTUAL BASIS FOR THIRD AMENDMENT 0F MOTION T0 SUPPRESS

_
42. Undersigned counsel conducted a second deposition of Detective Michael Alvarez

and a deposition of_ Based on the testimony elicited during these

depositions, undersigned counsel has a good faith basis to believe that the statement on

page four of the affidavit for search warrant which states, “James Rybicki did not have

permission to bring-a minor into of his residence” and “Your co-affiant confirmed
this by speaking with are false statements.

WHEREFORE the Defendant, JAMES E. RYBICKI respectfully requests this Honorable

Court grant his Motion to Suppress all evidence seized during the execution of this search

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warrant on his home included but not limited to: all electronic devices, cameras, surveillance

cameras and USB drives.

' '

J.S. Lu c
'
e
Florida}: er 0884 '

The Fleming Law Group, P.A.

2701 Fifth Avenue North
St. Petersburg, FL 33713
(727)323-4020
Attorney for the Defendant

CERTIFICATE O V'SER&XCE
'

I HEREBY CERTIFY that a copy of the f rg E-FILE to the

State Attorney’s Office, this Zflw day of M
fl

J.S.
LucanJEqu

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