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Judge tosses trial evidence

Authors): PENNY BROWN ROBERTS Date: November 20, 2004 Section: News

All the evidence against two Florida men charged in a counterfeit credit-card scam must be tossed out because a Baton Rouge police officer found it during an illegal search, a federal judge decided.

In an unusual ruling made public Friday, U.S. District Judge James Brady granted a motion by defense lawyers to suppress the counterfeiting equipment, stolen credit-card numbers and counterfeit cards - as well as statements the two made at the scene.

That means prosecutors can't use the evidence to argue for a conviction at trial.

The ruling is unique because, while lawyers routinely try to suppress evidence discovered during searches, such motions rarely are granted in Baton Rouge federal court.

"It is very unusual, because a lot of times the facts just aren't there to warrant it," said Tommy Damico, a lawyer who routinely represents criminal defendants in state and federal cases.

Damico said efforts to suppress evidence usually come down to the judge determining the credibility of witnesses for each side, and "unless the judge can be absolutely certain, he'll probably err on the side of caution, and unfortunately in today's society, erring on the side of caution tends to support the system instead of the individual."

Brady's decision came in the case against Fernando Coizeau, 55, of West Palm Beach, and Noel Yara, 22, of Miami, after the judge reviewed a videotape of a traffic stop that netted the items.

A federal grand jury indicted the pair in March on four counts of possession of device making equipment with the intent to defraud. Each faces up to 37 years in prison and a fine.

Records in the case show that Baton Rouge police Cpl. Wayne Brashier stopped Coizeau, Yara and another man in August 2003 on Interstate 12 after their rented SUV appeared to be drifting across lanes. After questioning them about the absence of the driver listed on the rental agreement, he told him he wasn't going to issue a traffic citation.

Before letting them go, Brashier asked Coi/eau in English - and then in Spanish - for permission to search the vehicle. As Coizeau and the driver began walking back to the SUV, Brashier ordered them and another passenger still in the vehicle to stand on the side of the road, the records show.

A subsequent search turned up at least 37 stolen credit-card numbers, a magnetic strip-card reader and writer, a credit-card embosser and other

"There were no evolving conditions that justified prolonging the stop," Brady wrote. "Officer Brashier claims he perceived the defendants to be nervous to the point of physical shaking; however, he neither ran a check on the license plate to determine whether the car was stolen or ran (the) driver's license through a license check."

Brady added that his own review of the videotape shows the driver did not appear nervous during the stop.

In his ruling, the judge also wrote that the men - who are Hispanic and speak little English - did not give valid consent to search the vehicle. Part of the reason, Brady concluded, was that Brashier failed to tell them that they had a right to refuse the search and leave the scene.

The driver, Raimundo Colas, testified at an earlier evidentiary hearing he didn't understand Brashier's request and thought the officer told him and the other men it was O.K. to leave.

"Hispanic suspects who neither speak English nor are familiar with their rights under the Constitution are disadvantaged in their encounters with law enforcement personnel," Brady wrote. "Fourth Amendment protections are particularly important to such cases. Each defendant must be equally treated, regardless of his or her native tongue."

Brady also barred prosecutors from presenting as evidence stolen credit cards in Coizeau's wallet. Brashier said he found the items during a "pat down" out of concern for the safety of officers on the scene.

But the judge noted Brashier never took out his weapon, handcuffed the men or asked his partner to get out of the police car during the stop. A pat down, Brady wrote, gives officers "liberty to feel for weapons, not to remove their billfolds."

Brady also tossed out all comments the men made while on the side of the road because they "were not the result of voluntariness, but instead the result of an illegal detention or arrest."

Michael Rees Davis, who represents Coi/.eau, was out of town Friday and unavailable for comment. Yara's lawyer, public defender Jean Faria, could not be reached.

U.S. Attorney David Dugas said prosecutors are reviewing the ruling to determine whether they will appeal.

Copyright 2004 Capital City Press, Baton Rouge, La.

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