BARRY J. PORTMAN
Federal Public Defender
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,
v.
Defendant.
)
)
)
)
)
)
)
)
)
)
No. CR 96-40156 SBA
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF XXX'S MOTION TO SUPPRESS EVIDENCE
INTRODUCTION
XXX XXX is charged with a violation of 18 U.S.C. §922(g)(1), felon in possession of a firearm. The charge arises from a traffic stop made without probable cause that occurred on August 27, 1996, in Oakland, California.
Pursuant to the Fourth Amendment of the Constitution, Mr. XXX moves to suppress all evidence seized as a result of the illegal stop, as well as all evidence subsequently discovered. Mr. XXX further requests an evidentiary hearing on this issue.
STATEMENT OF FACTS (1)
On August 27, 1996, at around 6 p.m., XXX XXX, Joeshana Card, Sean XXX and Monroe XXX were traveling in a rented Ford westbound in the 2700 block of East 16th Street in Oakland. Mr. XXX was driving. Messrs. XXX and XXX were passengers in the back seat.
Oakland police officers Chuck Mabanag and Walter Watt were on patrol at the time as members of the Street Narcotics Enforcement Unit. Officers Mabanag and Watt, in a semi-marked police car, were traveling west in the 2700 block East 16th Street, some distance behind the Ford. They were wearing Oakland Raid uniforms.
Both cars approached a four-way stop sign at 27th Avenue and East 16th Street. According to Officer Mabanag, the Ford did not come to a complete stop before it turned right onto 27th Avenue. According to Mr. XXX, the car did come to a complete stop.
Officers Mabanag and Watt followed the Ford as it turned onto 27th Avenue and again onto Foothill Boulevard. The officers then stopped the Ford on Foothill Boulevard based on the ostensible traffic violation. They arrested Messrs. XXX, XXX and XXX for allegedly possessing a weapon. Ultimately, only Mr. XXX was charged.
ARGUMENT
A. THE STOP OF THE VEHICLE WAS UNCONSTITUTIONAL BECAUSE THE OFFICERS DID NOT HAVE PROBABLE CAUSE TO BELIEVE THAT A TRAFFIC VIOLATION HAD OCCURRED
A search or seizure without a warrant is presumptively invalid. Coolidge v. New Hampshire, 403 U.S. 443 (1971). It is a "cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Acevedo v. California, 500 U.S. 565, 580 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)).
"Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons'" for purposes of the Fourth Amendment. Whren v. United States, 116 S. Ct. 1769, 1772 (1996). "An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id.; see alsoDelaware v. Prouse, 440 U.S. 648, 663 (1979) (absent "at least articulable and reasonable suspicion" that the law has been violated, an automobile stop is unreasonable under the Fourth Amendment).
In the instant case, there would have been probable cause for the seizure -- and therefore no Fourth Amendment violation -- if the Ford had not stopped at the stop sign. If the Ford hadstopped, however, the officers' detention of Mr. XXX and seizure of the items in the car was unconstitutional. The only justification Officers Mabanag and Watts have offered for the detention was the alleged failure to stop.
But the parties dispute this critical point: whether or not the Ford stopped. Officer Mabanag states that the Ford "fail[ed] to stop at the w/b stop sign completely and then continue[d] to 'roll through' and turn n/b . . . ." Police Report (internal quotation marks in original). Mr. XXX, by contrast, states,
I was aware that I was being followed by police. I came to a complete stop at each stop sign. In particular, I came to a complete stop at the intersection of East 16th Street and 27th Avenue. I have been advised that the police state that I "rolled" through that stop sign at East 16th Street and 27th Avenue. That statement is incorrect. The car I was driving came to a complete stop.
XXX Decl. (internal quotation marks in original). The constitutionality of the stop depends on the resolution of this factual dispute.
B. THE COURT MUST HOLD AN EVIDENTIARY HEARING TO RESOLVE THE CRITICAL DISPUTED ISSUE OF FACT
An evidentiary hearing on a motion to suppress is required if the moving papers are definite, specific and detailed enough for the court to conclude that there are contested issues of fact regarding the validity of the search. United States v. Licavoli, 604 F.2d 613, 621 (9th Cir. 1979), cert. denied, 446 U.S. 935 (1980). The attached police report and XXX declaration clearly put in dispute the critical factual issue of the alleged traffic violation. Accordingly, an evidentiary hearing is necessary.
At the evidentiary hearing, the government has the burden of showing that a warrantless search is reasonable. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992).
CONCLUSION
Wherefore, for all the reasons set forth above, it is respectfully requested that the Court grant the instant motion and order
that an evidentiary hearing be held in this matter.
Dated: November __, 1996
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ANNE FLOWER CUMINGS
Assistant Federal Public Defender
1. The facts underlying this motion are derived from the police report of Oakland Police Department officer Chuck Mabanag, Oakland Police Department Report #96-081827 ("Police Report") (Exhibit A to XXX's Motion to Suppress Evidence) and from the Declaration of Sean XXX in Support of XXX's Motion to Suppress Evidence ("XXX Decl.").
The XXX Decl. is not exhaustive of the potential testimony of this witness. It should, however, be sufficient to raise a factual dispute. Mr. XXX and other witnesses whom Mr. XXX may call at the evidentiary hearing have addition information that is pertinent to the Fourth Amendment issues raised by this motion. If the Court requires more information to determine whether an evidentiary hearing is necessary, Mr. XXX will supplement the XXX Decl. with additional information as requested.