BARRY J. PORTMAN

Federal Public Defender

COLLEEN MARTIN

Assistant Federal Public Defender

1301 Clay Street, Room 200C

Oakland, CA 94612-5204

Telephone: (510) 637-3500

Counsel for Defendant XXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

XXX XXX, SR. ,

Defendant.

)

No. CR 98-40141 SBA

DEFENDANT XXX'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SUPPRESS

Date: December 15, 1998

Time: 9:00 a.m.

Courtroom: No. 3

I. INTRODUCTION

Defendant XXX XXX, Sr. was named in a two-count indictment filed on August 6, 1998. Count One charges that Mr. XXX, having been previously convicted of a crime punishable by more than one year in custody, knowingly possessed a firearm on May 12, 1998 in violation of 18 U.S.C. § 922(g). Count Two charges Mr. XXX with possession of a substance and mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1).⁽¹⁾

These charges arise out of a search by Contra Costa Sheriff's deputies of the residence at 1948 Bush Street in San Pablo, California, for XXX XXX, who had been accidentally and prematurely released from the Contra Costa County Jail, and for the defendant's son XXX XXX, for whom there was an arrest warrant. Deputies report that during the search, they found methamphetamine in plain view in a paper bag. The paper bag in which the methamphetamine was found has been lost or destroyed. After finding the contraband, deputies obtained a search warrant. As a result of their search, deputies seized several guns, a quantity of methamphetamine, a scale, some syringes, and other drug paraphernalia.

Mr. XXX hereby moves to suppress all the fruits of the search of that residence on the grounds that the entry into and search of his home violated the Fourth Amendment to the United States Constitution. He further moves to suppress the fruits of the search of his person on the grounds that his arrest violated the Fourth Amendment to the United States Constitution.

Because there is a dispute of fact regarding the circumstances of the search, and because crucial evidence has been lost or destroyed, Mr. XXX respectfully requests that an evidentiary hearing be ordered.

II. STATEMENT OF FACTS

The recitation of facts comes from the police reports and transcript of the telephonic search warrant application provided by the government, and from the declaration of XXX XXX, Sr. Although the parties agree on some facts, certain other facts are disputed as noted below.

On May 12, 1998, at 8:11 pm, two Contra Costa Sheriff's Department deputies arrived at the residence at 1948 Bush Ave. in San Pablo, California. At the house that evening were the defendant, XXX XXX, Sr. ("Mr. XXX"), his son XXX XXX ("XXX"), his son XXX XXX, Jr. ("XXX Jr."), Racquel Cruchon, and the young son of XXX Jr. and Racquel. Police Report of Deputy Gruenheid, attached as Exh. A; Police Report of Deputy Jennings, attached as Exh. B.

Deputy Gruenheid and Deputy Jennings were looking for XXX XXX, a Contra Costa Jail inmate who had accidentally been released early. Exh. A at 1; Exh. B at 3. According to Deputy Gruenheid's police report, she and Deputy Jennings were assigned to go to that residence because Ms. XXX had listed it on a jail request visiting form as belonging to her cousin XXX XXX.⁽²⁾ Exh. A at 1. Deputy Gruenheid reports that before arriving at the residence, she ran XXX XXX on her computer and found that he had "an outstanding arrest warrant for H&S 11377."⁽³⁾ Exh. A at 1.

Deputy Gruenheid reported in her police report that she went "directly to the front door" of the residence.

The first factual dispute arises here. While Deputy Gruenheid claims to have first approached the front door, her police report omits the fact that to get to the door which she calls the front door, she had to open a screen door and enter a fully enclosed porch before reaching an inner door. Attached to the Declaration of XXX XXX, Sr. ("XXX Decl.") are photographs of the front of his house. Exhibit 1 to the declaration depicts the front of the home, which is a small, single-story, single family home. XXX Decl. at ś 3. Exhibit 2 shows the front entrance to the house, showing a front screen door with a doorbell to the left of it. See also XXX Decl. at ś 5. Inside the screen door is a fully enclosed porch which contains household items. XXX Decl. at ś 5. The inner door inside the enclosed porch leads into the living room and the rest of the house. Id. On the evening of May 12, 1998, Mr. XXX never heard anyone ring the doorbell or knock on the front screen door. Id. at ś 6..

Deputy Gruenheid reports that she knocked on the closed door three times. Exh. A at 1. The first time, she knocked and no one answered. Id. The second time she knocked with her baton. Id. The third time, she "knocked and banged on the door so as to make a loud noise." Id. This time, she reported, the door opened slightly, although it had not opened at her previous pounding. Id. When she saw a dog approaching her, she closed the door, leaving it open only a crack, and announced that she was from the Sheriff's Department. Id. Deputy Gruenheid says that Mr. XXX appeared and opened the front door. Id. at 2. She "advised the man who opened the door that [she] was attempting to locate XXX XXX and XXXery [sic] XXX," and asked for his identification. Id. According to her, Mr. XXX said that XXX was not there and "stepped aside and began walking through the house toward the kitchen and pointed to another male subject advising that the man was XXX XXX." Id. She say that she "at that pointed entered the house." Id. Deputy Jennings then placed XXX under arrest for his outstanding warrant. Id.⁽⁴⁾

Mr. XXX disputes Deputy Gruenheid's description of her entry into his house in several respects. First, as mentioned above, he did not hear anyone knock at his front screen door, but only heard knocking at his inner door. XXX Decl. at ś 6. When he came into the living room in response to the knocking, he saw that the door was open and a female deputy had her head in his house. Id. at ś 7. She said that she had a warrant for XXX XXX, and that she was looking for XXX XXX. Id. at ś 8. Mr. XXX felt that he had no choice about whether or not to let her in. Id. at ś 9. When she was in the house, Mr. XXX pointed out his son, XXX XXX, who was immediately arrested and was placed in a patrol car a few moments later. Id. at ś 10.

Deputy Gruenheid reports that after Deputy Jennings arrested XXX, she then asked Mr. XXX for permission to search the house. She does not say that she told Mr. XXX that he had the right to refuse consent, nor does she claim that she asked him for written consent. See Exh. A. In fact, Mr. XXX was not told that he could refuse consent. XXX Decl. at ś 11. Deputy Gruenheid's report states that he "invited [her] to look for [XXX] if [she] wanted to and led [her] around the house, opening doors, and explaining who lived where in each room." Exh. A at 2. Deputy Gruenheid states that she searched each room "with the assistance and consent of XXX XXX Sr." Mr. XXX states that he felt he had no choice but to consent to the search of his house for Ms. XXX. XXX Decl. at ś 11.

According to her report, when she was in the closet in the front bedroom, Deputy Gruenheid noticed that there was no cover or door in the closet ceiling access to the attic. Exh. A at 2. She claims that she saw "what appeared to be fresh attic insulation debris around the closet." Id. She asked for a ladder, and Mr. XXX said that he did not have one. Id. She then asked if she could use a kitchen chair that was in the living room to look up into the attic. Id. at 2-3. According to the report, Mr. XXX "said something like if I wanted to but that XXX XXX was not up there." Id. at 3.

Again, according to Mr. XXX's declaration, when Deputy Gruenheid asked if she could use a chair to look into the attic, he again felt he had no choice about permitting her to do so. XXX Decl. at ś 10.

Upon climbing on the chair and looking into the attic, Deputy Gruenheid reports she saw a syringe in a glass bottle "and what appeared to be fresh movement of the dust and attic insulation around the edges of the opening on the wood." Exh. A at 3. She also saw a brown paper bag near the bottle. Id. She was unable to get up into the attic to see if Ms. XXX were up there. Id. She asked dispatch to send additional officers over to the house, and asked Deputy Jennings to guard the attic opening while she went with Mr. XXX to check the garage. Id. She said that she briefly looked at the garage but "determined that there was no access through/into the garage". Id. at 3-4. She then returned to explore the attic to see if Ms. XXX were up there. Id. at 4.

Deputy Jennings went into the attic, which he searched. According to Deputy Jennings, he saw a plastic zip lock bag with a white powder in it "in plain view inside an open paper bag." Exh. B at 3. He looked into the bag and found 2 more plastic zip lock bags of white powder, along with 2 spoons, several small plastic baggies, and 2 ledgers. Id.

The brown paper bag has apparently been lost or destroyed, and counsel for Mr. XXX has been unable to examine it or have it analyzed.⁽⁵⁾

Ms. XXX was not in the attic, nor was she anywhere in the XXX's home. Indeed, discovery provided by the government indicates that Ms. XXX was arrested at approximately 10 pm that evening at another address in San Pablo.

Deputy Jennings' report indicates that he called for assistance after he found the bag and that Mr. XXX and his family members were detained and, at some point before the search warrant was sought, placed into custody. Exh. B at 3; Exh. C at 4, 6. Deputy Jennings reports that a presumptive test was conducted on one of the plastic zip lock bag contents and the test returned positive for methamphetamine. Exh. B at 4. Deputy Jennings thereafter sought and obtained a telephonic search warrant.

During the search of the front bedroom, deputies found under the bed a book which contained a gun. Id. at 5. Some baggies and a bag containing several syringes and a spoon with residue on it were found in a dresser in that room. Id. A revolver wrapped inside of a hat and some ammunition were found in the closet in the back room. Id. A syringe was found in the kitchen above the stove. Id. On top of the dryer in the laundry room covered with clothes was a scale. Id. There was a hole in the ceiling in the laundry room. Id. Inside the hole were a gun, ammunition, a paper bag containing empty capsules, a spoon, and a bag with 2 syringes in it. Id.

Mr. XXX and XXX Jr. were arrested on charges of possession of dangerous drugs for sale and child endangerment. Exh. B at 6. Mr. XXX was also charged with being a felon in possession of a firearm and with violation of parole. Id. According to Deputy Jennings' police report, XXX was arrested on an outstanding warrant for possession of dangerous drugs. Id. Deputy Jennings reports that Mr. XXX was searched incident to arrest and found to have $334. XXX Jr. was searched and found to have $1,800. Exh. B at 4.

Mr. XXX, XXX Jr. and XXX were given their Miranda rights. Exh. A at 5; Exh. B at 6. Mr. XXX and XXX Jr. declined to answer questions. Exh. A at 5; Exh. B at 6. XXX, however, said that any contraband found in the house belonged to him, but that he did not want to talk about it without his lawyer. Exh. A at 5.

Mr. XXX has been federally charged with possession of the gun found in the front bedroom and with possession of methamphetamine with intent to distribute.

III. ARGUMENT

A. THE POLICE ENTRY INTO THE XXX'S HOME VIOLATED THE FOURTHAMENDMENT

The Fourth Amendment extends heightened protection to private homes and the land immediately surrounding them. See Oliver v. United States, 466 U.S. 170, 180 (1984); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house." United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1989). Police may not cross that line without a warrant, exigent circumstances or valid consent. See id. 1425; see also Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990) ("[w]e have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities").

1. Police violated the Fourth Amendment by entering the attached, enclosed front porch of the XXX house without a search warrant, consent or exigent circumstances

The full Fourth Amendment protection afforded to homes extends not only to the home proper but also to the curtilage of the home. See Oliver v. United States, 466 U.S. 170, 180 (1984). The curtilage includes "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" Id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). Factors to consider in determining whether an area is within the curtilage include its proximity to the home, whether it is within an enclosure surrounding the home, the way it is used and the steps taken to protect it from the view of people passing by. See Gates, 907 F.2d at 885.

In Gates, the Ninth Circuit held that the curtilage included an attached garage. See id. In reaching this conclusion, it considered that attached garages often have doors leading directly into a room of the house. See id. It also considered that garages often are used for storing household items. See id. Because the garage merited the same Fourth Amendment protection as the house, "the garage was not subject to invasion in the absence of a warrant issued upon a finding of probable cause." Id.

Here, Mr. XXX first saw the police when they were at the door to his living room. By that point, they already had opened an exterior door, entered an enclosed porch and opened a second, firmly closed door from the porch to the living room. They did so without a search warrant, without exigent circumstances and without consent.

The XXX's porch, like the garage in Gates, was attached to the house. See id. Its interior door opened directly into the living room of the house. See id. The XXXs used the porch for storing household items. See id. The interior of the porch was not readily visible from a public place. The interior of the porch was not accessible from a public place.

Mr. XXX's attached, enclosed porch, like the attached garage in Gates, "was entitled to the cloak of protection that was thrown over his house." Id. Police entered the porch without a search warrant, without exigent circumstances and without consent. Their entry violated the Fourth Amendment.

2. Police did not have valid consent to enter the XXX home

Police may enter and search a home without a warrant if they first obtain voluntary and valid consent. See Shaibu, 920 F.2d at 1425. Whether consent is voluntary is determined from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1972). "[T]he Fourth and Fourteenth Amendments require that consent not be coerced, by explicit or implicit means, by implied threat or covert force." Id. at 228. The government bears the burden of proving valid consent. See id. at 222.

In this case, Officer Gruenheid's report indicates that her knocking on the living-room door caused it to open. She pulled the door closed because a dog was approaching her. Mr. XXX then came to the door.

Officer Gruenheid "advised the man who opened the door that [she] was attempting to locate" XXX XXX and XXX XXX. She asked Mr. XXX for identification, which he provided. Mr. XXX told the officer that XXX XXX was not there "and stepped aside and began to walk through the house towards the kitchen and pointed to another male subject advising that the man was XXX XXX. I at that point entered the house . . . ."

By the officer's own account, she did not ask Mr. XXX for permission to enter his home. Nor did Mr. XXX expressly invite her inside. The government thus bears the heavy burden of establishing that Mr. XXX implicitly consented to the police entry into his home. See Shaibu, 920 F.2d at 1426. "The existence of consent to a search is not lightly to be inferred, and the government always bears the burden of proof to establish the existence of effective consent." Id. (quotation marks and citation omitted).

In Shaibu, police were buzzed into an apartment complex and were walking down the complex hallway when they encountered the defendant. See id. at 1424. The defendant "had stepped out of his apartment, leaving the door open, and initially began walking toward the officers in the hallway." See id. The officers identified themselves and police and asked the defendant if the person they were looking for was inside the apartment. Id. Without responding, the defendant "walked back 'into the apartment, leaving the door open as the detectives followed him inside.'" Id. The defendant did not prevent the police from entering or ask them to leave. See id.

Inside the apartment, police asked the defendant for identification, which he gave them. See id. They then asked if they could look around the apartment for the person they were seeking. See id. at 1424-25. The defendant responded, "'Sure, go ahead.'" Id. at 1424. Police did not find the person they were looking for, but they did find evidence of bank fraud. See id.

The Ninth Circuit reversed the defendant's ensuing conviction because the government could not establish valid consent to enter the apartment. See id. at 1428. "We hold that in the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent." Id.

Here, as in Shaibu, police neither made an explicit request to enter the home nor received explicit consent to do so. See id. at 1427. "[T]here is no authority that an open door gives police legal grounds to enter the home without explicit request when they infer consent from mere acquiescence." Id. Here, as in Shaibu, the police's entry without asking permission suggests, erroneously, that they had authority to do so and creates at least implicit coercion. See id. Under such circumstances, the government cannot show consent from the failure to object to the entry. Seeid. at 1427-28.

Supporting the conclusion that the government cannot show valid consent in this case is the fact that the police did not advise Mr. XXX that he could refuse them entry. See Schneckloth, 412 U.S. at 227 (holding that whether defendant was advised and knew about right to refuse consent is one factor in voluntariness analysis); see also United States v. Mendenhall, 446 U.S. 544, 558-59 (1980) (finding fact that agents twice told defendant that she could refuse was "highly relevant" to determining consent to search).

Because police entered Mr. XXX's living room without asking permission or receiving valid consent to do so, their entry violated the Fourth Amendment.

B. THE SEARCH OF THE XXX HOME VIOLATED THE FOURTH AMENDMENT

Protection of the home against improper governmental intrusion lies at the very core of the Fourth Amendment's guarantees. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748 (1984); United States v. Albrektsen, 151 F.3d. 951, 953 (9th Cir. 1998). Thus, the Constitution generally requires authorities to obtain a warrant, supported by probable cause, before they may search a home. SeeU.S. Const. amend. IV. The search of a home without a warrant is, with a few exceptions, per se unreasonable. See Schneckloth, 412 U.S. at 219; Shaibu, 920 F.2d at 1425.

The government bears the burden of proving that a warrantless search is reasonable. SeeUnited States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992). Its burden includes proving that a warrantless search falls within one of the narrow exceptions to the warrant requirement. See id.

1. The search was the fruit of the prior unlawful entry

As discussed above, police did not have a search warrant, exigent circumstances or valid consent to enter the XXX home. Their search followed and was the fruit of the unlawful entry. Accordingly, all fruits of the entry must be suppressed. See Shaibu, 920 F.2d at 1425; United States v. Impink, 728 F.2d 1228, 1234 (9th Cir. 1984).

Any consent Mr. XXX gave for the search also is the fruit of the unlawful entry. Because the consent flowed directly from and is tainted by the unlawful entry, it cannot validate the search. SeeUnited States v. Hotal, 143 F.2d 1223, 1228 (9th Cir. 1998); United States v. Suarez, 920 F.2d 1466, 1468 (9th Cir. 1990). Because the entry was unlawful, the Court need not consider whether the consent otherwise would have been voluntary. See United States v. Howard, 828 F.2d 552, 556 (9th Cir. 1987).

2. Mr. XXX did not freely and voluntarily consent to the search of his home

The government will no doubt argue that Mr. XXX consented to the search of his home and attic. But consent to search is voluntary only if it is not "coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth, 412 U.S. at 228. The government bears the burden of proving voluntary consent for a warrantless search. See Carbajal, 956 F.2d at 930. A court must consider the totality of the circumstances in determining whether consent is voluntary. SeeSchneckloth, 412 U.S. at 227.

Facts tending to show that consent is not voluntary include: (1) the person was in custody; (2) the police had their weapons drawn; (3) the police told the person that a search warrant could be obtained; (4) the police did not administer Miranda warnings; and (5) the police did not advise the person of the right to refuse consent. See United States v. Chan-Jiminez, 125 F.2d 1324 (9th Cir. 1997); see also Mendenhall, 446 U.S. at 558-89 (finding "highly relevant" to consent determination the fact that police twice told the defendant that she was free to decline to consent to search). Another important factor is whether the consent was written. See, e.g., Washington v. Chrisman, 455 U.S. 1, 9 (finding consent valid where defendant gave written consent to search after police told him that consent must be voluntary and he had absolute right to refuse consent and require police to get warrant); Chan-Jiminez, 125 F.3d. at 1327 n.3 (collecting cases that found consent voluntary based in part on written consent).

In this case, several of these factors demonstrate that Mr. XXX's consent to search was not voluntary. The police did not obtain written consent to search from Mr. XXX. The police did not tell him that he had a right to refuse to consent. They did not advise him of any rights. Although they did not initially arrest Mr. XXX, they had arrested his son before the search.

Moreover, police sought consent to search only after they were already inside the XXX home. See Chan-Jiminez, 125 F.3d. at 1327 (finding nature of location -- whether populated or not -- relevant in determining validity of consent). They came at night. And they persisted in asking about XXX XXX even though Mr. XXX twice told them that she was not in the house.⁽⁶⁾ These facts, as well, indicate that any consent was at least implicitly coerced. Cf. Florida v. Bostick, 501 U.S. 429, 436 (1991) (holding that appropriate consideration in determining whether person voluntarily in confined location is seized is "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter").

Under these circumstances, Mr. XXX's consent to search could not have been freely and voluntarily given. The police had already demonstrated their disregard for his right to privacy in his home and his honest statement that XXX XXX was not there. A reasonable person would not have believed that he was free to terminate the encounter with two sheriff's deputies who had entered his home at night without his express permission or a warrant. At most, Mr. XXX's consent to search was "acquiescence to a claim of lawful authority" and therefore not voluntary. See Shaibu, 920 F.2d at 1426.

C. THE SEARCH AND SEIZURE OF THE BROWN PAPER BAG VIOLATED THE FOURTHAMENDMENT

In the course of searching the attic, Deputy Jennings saw a brown paper bag and reports that within the bag, he saw a baggie of white power. He confiscated the bag, and sought a search warrant based on the bag and its contents. The search and seizure of the bag were unconstitutional for the reasons discussed below.

1. The search and seizure of the brown paper bag were the direct fruit of the prior unlawful entry into and search of the XXX home

"Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." Segura v. United States, 468 U.S. 796, 804 (1984); see also United States v. Johns, 891 F.2d 243, 245 (9th Cir. 1989) (holding exclusionary rule applies to evidence directly obtained in violation of Fourth Amendment).

Here, as discussed above, police found the brown paper bag following an unlawful entry into the XXX home and during an unlawful, warrantless search of the home. Police obtained the bag and its contents as a direct result of their Fourth Amendment violations. Accordingly, the bag and its contents must be suppressed.

2. The warrantless search and seizure of the brown paper bag, without a warrant, exigent circumstances or consent, violated the Fourth Amendment

People have a legitimate expectation of privacy in bags. See United States v. Bulacan, 156 F.3d. 963, 968 (9th Cir. 1998). "The Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." See United States v. Ross, 456 U.S. 798, 822-23 (1982); see also Robbins v. California, 453 U.S. 420, 426 (1981) ("What one person may put into a suitcase, another may put into a paper bag."). Thus, the Fourth Amendment guarantees that bags will not be subject to unreasonable warrantless searches and seizures. Unless the government establishes some exception to the warrant requirement, the warrantless search of a person's bag violates the Fourth Amendment.

Here, Officer Jennings searched the brown paper bag by looking into it. Cf. Arizona v. Hicks, 480 U.S. 321, 325 (1987) (moving stereo components constitutes search). He then seized, or, in his words, "confiscated," the bag and searched it further. Officer Jennings did not have a search warrant, and he did not have exigent circumstances to search or seize the bag.

a. Police did not have valid consent to search or seize the brown paper bag

The permissible scope of a consent search depends on what police ask permission to search for. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). With voluntary consent, police may search only where the object they have consent to search for may be found. See id.; United States v. Gutierrez-Mederos, 965 F.2d at 803-04 (9th Cir. 1992).

Even assuming, for purposes of argument only, that Mr. XXX validly consented to the search of the house, the initial search of the brown paper bag clearly exceeded the scope of the consent. Police indicated to Mr. XXX only that they wanted to search for XXX XXX. Any consent he gave was limited to places where XXX XXX could have been found. XXX XXX could not have been located in the brown paper bag. Accordingly, the police did not have consent to search the brown paper bag.

b. Mr. XXX is entitled to an evidentiary hearing regarding the bag

If the bag was in fact open and its contents were both exposed to view and immediately apparent as incriminating, the government may be able to justify the search and seizure of the bag under the plain view doctrine. See Hicks, 480 U.S. at 324-28; cf. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) ("[T]he 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.").

Deputy Jennings' police report states that he saw the white powder in plain view in the bag. Now, however, the brown paper bag is missing. Counsel for Mr. XXX has not been able to examine the bag, evaluate Deputy Jennings' description of it, or challenge his assertion that he saw the powder in plain view in the bag. Accordingly, Mr. XXX requests an evidentiary hearing to determine the nature and condition of the bag and whether its contents could have been in plain view.⁽⁷⁾

D. THE WARRANTLESS ARREST AND SEARCH OF MR. XXX VIOLATED THE FOURTH AMENDMENT

1. The warrantless arrest was the fruit of the prior unlawful entry into and search of the XXX home

"If the police conduct an illegal search and as a consequence discover evidence which provides probable cause that a particular person has committed a crime, an arrest of that person based upon this information is unquestionably tainted . . . ." Wayne R. LaFave, 5 Search and Seizure § 11.4(e) (1996); cf. Segura, 468 U.S. at 804.

Here, as discussed above, police unlawfully entered and searched the XXX home before they arrested Mr. XXX, who was arrested before the search warrant was obtained or executed. They did not have a basis for the arrest before their unlawful entry and search. They arrested him based on the syringe and the white substance they found in the attic. Because the arrest of Mr. XXX was the direct fruit of the prior unlawful entry and search of his home and the bag, it, too, violated the Fourth Amendment.

2. Police did not have probable cause to arrest Mr. XXX

The Fourth Amendment protects individuals from unreasonable seizures, including arrests. SeeDavis v. Mississippi, 394 U.S. 721 (1969). A warrantless arrest is reasonable under the Fourth Amendment only if police had probable cause to believe that the arrestee had committed or was about to commit a crime. See Picray v. Sealock, 138 F.3d. 767, 770 (9th Cir. 1998). Police must have probable cause at the time of the arrest; information obtained during or after the arrest cannot be used to support probable cause for the arrest. See Allen v. City of Portland, 73 F.3d. 232, 236 (9th Cir. 1995).

Here, police arrested Mr. XXX after finding the bag in the attic. According to Deputy Jennings' police report and sworn statement in his application to the telephonic search warrant, Mr. XXX was "detained" immediately after Deputy Jennings found the bag in the attic and was "in custody" at the time of the search warrant application. See id. at 235 (arrest occurs when, considering all the circumstances from the perspective of the individual seized, a reasonable innocent person in the circumstances would not have felt free to leave after brief questioning).

Police did not have probable cause to arrest Mr. XXX at that time. They came to the XXX home not to investigate any wrongdoing on Mr. XXX's part but to look for XXX XXX. At the time of the arrest, police had found one syringe, three bags containing an unknown white substance, two notebooks, some plastic bags and two spoons. These items were not sufficient to warrant a prudent person in believing Mr. XXX had committed or was committing an offense.

3. The search of Mr. XXX's person violated the Fourth Amendment

Because they did not have probable cause to arrest Mr. XXX, police could not lawfully search him incident to the arrest. See United States v. Bulacan, 156 F.3d. 963, 968-69 (9th Cir. 1998). Accordingly, all fruits of the unlawful search of Mr. XXX's person, and specifically the $334 he was found to have, must be excluded.

IV. CONCLUSION

For the reasons stated above, Mr. XXX respectfully asks the Court to find that the entry into and search of his home violated the Fourth Amendment and to suppress all fruits of the unlawful entry and search. He additionally asks the Court to find his arrest and subsequent search were unlawful and to suppress all the fruits thereof. Alternatively, he requests an evidentiary hearing at which he may further develop the facts in support of his motion to suppress.

Dated: November __, 1998

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

COLLEEN MARTIN

Assistant Federal Public Defender

1. Mr. XXX is currently on both parole and supervised release following a federal conviction in 1988. United States v. XXX XXX, Sr., CR-S-88-00025-001 WBS (E.D. Cal.).

2. According to the discovery provided by the government, Ms. XXXa's jail request visiting form references a XXX "Jewitt" at 1948 Bush in San Pablo.

3. California Health & Safety Code § 11377 prohibits possession of non-narcotic controlled substances.

4. Deputy Jennings' report differs from Deputy Gruenheid's about several points. For instance, Deputy Jennings does not indicate that XXX XXX's warrant was discovered prior to the deputies arrival at 1948 Bush, nor does it indicate that he was arrested prior to the search of the residence for Ms. XXX or prior to the discovery of the contraband. See Exh. B.

5. The undersigned has spoken with AUSA George Bevan about the bag and has been told that it cannot be located and the government is not sure of its fate.

6. Mr. XXX was telling the truth: Ms. XXX was found at another location at approximately 10:00 pm that evening.

7. Mr. XXX is also filing a motion to dismiss Count Two of the Indictment based on the destruction of the bag.