BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defenders
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CR. No. 00-561 MJJ
)
Plaintiff, ) DEFENDANT'S NOTICE OF
) MOTION AND MOTION TO
) SUPPRESS EVIDENCE AND
v. ) STATEMENTS; REQUEST ) FOR EVIDENTIARY HEARING;
) MEMORANDUM OF
) POINTS AND AUTHORITIES
PARRISH XXX, )
) Date: May 3, 2001
Defendant. ) Time: 3:30 p.m.
__________________________________________) Honorable Martin J. Jenkins
TO: UNITED STATES OF AMERICA, PLAINTIFF; AND ROBERT MUELLER, UNITED STATES ATTORNEY;
AND SHARON BUNZEL, ASSISTANT UNITED STATES ATTORNEY.
PLEASE TAKE NOTICE that on May 3, 2001 at 3:30 p.m. in the courtroom of the Honorable Martin J. Jenkins, defendant Parrish XXX will move this Court to suppress all statements and evidence obtained through a warrantless search of the home located at 2031 Thomas Avenue in San Francisco, California, and all statements that were the result of any un-Mirandized interrogation, which occurred in violation of his rights under the Fourth and Fifth Amendments.
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INTRODUCTION
Parrish XXX is charged with one count of possession of a firearm after having been convicted of a crime punishable by more than one year in violation of 18 U.S.C. § 922(g). Mr. XXX was arrested on July 30, 2000, following a warrantless search of his grandmother's home where he had been staying. That search resulted in the discovery of a rifle from a garbage can in the garage of the home owned by Mr. XXX' grandmother Olivia XXX. Mr. XXX was indicted by a federal grand jury on August 17, 2000. Mr. XXX was not brought to federal court until February 14, 2001.
Mr. XXX moves the Court to suppress all evidence and any statements obtained during his warrantless search, seizure, and arrest on the following grounds: (1) the warrantless search of Olivia XXX's home occurred without a search warrant and without her consent and was presumptively unlawful, in violation of the Fourth Amendment; and (2) the police report does not indicate that Mr. XXX was Mirandized prior to interrogation, in violation of the Fifth Amendment.
STATEMENT OF FACTS (1)
On July 30, 2000, at approximately 4 p.m., members of the San Francisco Police Department were dispatched to the area of 2031 Thomas Avenue in San Francisco as a result of a telephone call regarding a gun shot that had been heard in the area. See San Francisco Police Incident Report attached hereto as Exhibit A. The officers were informed by dispatch of a report of a two "suspicious males." Id. The suspicious males included a 40-50 year old black male adult wearing a light green jacket and a black male adult wearing a white T-shirt. Id. The officers received word from dispatch that a second individual had called the police department and reported that a black adult wearing a "black and white suit" had fired one shot from a rifle and had then gone into the garage of the home at 2031 Thomas. Id. The black male had removed the rifle from a red Hyundai parked on the street corner. Id. Dispatch also informed the officers that an elderly woman lived at 2031 Thomas with her son. Id.
The officers arrived and were approached by the second individual, Brian Joubert, who said to the officers that the black male adult who fired the gun was inside the garage of 2031 Thomas. The officers approached the residence and "contacted an elderly black female adult, OLIVIA K. XXX and her son, JAMES XXX." Id. Ms. XXX informed the officers that she had heard a sound, but thought that it was a firecracker. Id. The officers then asked Ms. XXX and Mr. XXX whether there were any people in the garage. (2) Ms. XXX told the officers that her grandson was inside of the garage. Id. According to the officers, Ms. XXX and Mr. XXX then consented to the search of both the garage and the home. Id.
Ms. XXX, however, is certain that she never consented to the search of her home or garage. See Declaration of Olivia XXX, Exhibit B. James XXX (Parrish XXX' father) was inside the garage at the time the officers arrived. See XXX Decl., Exh. C. Parrish XXX is also certain that he did not provide consent to search. Id. To the contrary, when the officers entered the garage, Mr. XXX remembers telling the officers words to the effect of: "You don't have a warrant. You can't do this." Id.
The officers ignored him and entered the garage where they found "three adults sitting in old chairs playing cards." See Exh. A. The officers immediately began searching the garage and questioning the men seated at the card table inside. See XXX Decl., Exh. C. As a result of their search, the officers recovered a rifle from a garbage can inside the garage. See Exh. A. Although the precise chronology events is unclear from the police report, the officers claim that at some point they asked the man who was later identified as Parrish XXX, for his name. Id. He allegedly gave the officers an incorrect name and was apparently arrested after the officers confirmed an outstanding arrest warrant from dispatch. Id.
At some point during the encounter, Mr. XXX was taken into custody. Mr. XXX was subsequently questioned regarding the red automobile parked on the street corner. See Exh. A. There is no indication in the reports that he was provided with Miranda warnings prior to this custodial (3) questioning. James XXX recalls hearing the officers ask his son and the other occupants of the garage "where's the gun" and also recalls that the officers asked each of the men inside the garage for their names, and then communicated the names by radio to dispatch. See Exh. C. According to witness James XXX, the gun was recovered from a closed garbage can in the garage. Id.
The instant motion includes all taint of the illegal search, including any statements taken in violation of Mr. XXX' constitutional rights.ARGUMENT
I. The Warrantless Search of 2031 Thomas Avenue Was Presumptively Unlawful and Cannot Be Justified By Any
Exception to the Warrant Requirement
"It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1979) (internal citation and quotation marks omitted). "[A]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." See id. at 590-91 (internal citation and quotation marks omitted). In recognition of this right to be free from intrusion, the Fourth Amendment requires a police officer to obtain prior authorization from a neutral magistrate before searching a residence, even where the officer's observations in the field lead the officer to believe that evidence of a crime will be found within the residence. See Payton, 445 U.S. at 588 (noting "long-settled premise that, absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within"). As the Supreme Court has explained,
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement
the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search
is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
Johnson v. United States, 333 U.S. 10, 13-14 (1948) (footnotes omitted).
In the absence of consent or exigency, warrantless entry into a private residence is unlawful under the Fourth Amendment. The presence of consent to search a home ". . .is not lightly to be inferred." See United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990) (internal quotations and citations omitted). In Shaibu, the Ninth Circuit held that the government bears a heavy burden to establish consent to search a private residence and that "mere acquiescence to a claim of lawful authority" will not support a finding of consent. Id. at 1426. The court held 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 consent." Id. at 1428.
Exigent circumstances are "those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search or arrest until a warrant could be obtained." United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1085), cert. denied, 496 U.S. 1144 (1986) (quotation marks and brackets omitted). Factors that are relevant to the "exigency calculus" include: the gravity of the alleged offense, the suspects' knowledge of their imminent capture, the likelihood that the suspects are currently removing or destroying evidence and the likelihood that the suspects are currently endangering the lives of themselves or others. United States v. George, 883 F.2d 1407, 1413-14 (9th Cir. 1989). The government bears the "heavy burden" of establishing exigent circumstances that made the warrantless arrest necessary. Id. at 1411. The police may not disregard the Fourth Amendment warrant requirement just because it is "inconvenient" to obtain a warrant. United States v. Gooch, 6 F.3d 673, 679, n.3 (9th Cir. 1993). InGooch, the Ninth Circuit found no exigent circumstances where there was no actual ongoing threat, even though the defendant was intoxicated, a firearm had been discharged recently and people were leaving the area in fear. Gooch, 6 F.3d at 679. The presence of a gun alone, even an automatic weapon, is not an exigent circumstance justifying a warrantless arrest. Id. at 1414-15, n.5.
Any evidence recovered as a result of an illegal entry into a home is inadmissible against the defendant and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484-87 (1963).
In the present case, the police officers who searched Ms. XXX's home on July 30, 2000, did not have a search or arrest warrant. (4) Nor did they have the consent of Olivia XXX. See XXX Decl., Exh. B. As the attached declaration makes clear, Ms. XXX did not expressly consent to the search of her home. Id. She remembers answering her front door, and several officers "barging" their way in to her home telling her that they were looking for a gun. (5) Id. When the officers asked her if she had heard anything, she informed them that she had, but thought it was a firecracker. Id. James XXX similarly did not provide consent to search his home. See XXX Decl., Exh. C. The sworn testimony of Olivia XXX and James XXX contradicts the police report, which states that "OLIVIA K. XXX and JAMES XXX gave [the officers] consent to search the garage and the entire house." See Exh. A at 3.
When the officers entered Ms. XXX's home, they began searching for a gun in the garage and demanded that the individuals seated in the garage tell them where the gun was located, even although, once inside the garage, the officers saw three adult men simply "sitting in old chairs playing cards." See Exhibit A, p.3. There was no exigency. The officers had confirmed the absence of any harm to the residents and occupants of 2031 Thomas Avenue. There is no evidence that Ms. XXX was in any danger. See Police Report, Exh. A. Moreover, the occupants of the garage were calmly seated at a table. See id. Once the police officers confirmed the absence of any ongoing threat or harm, the officers were obligated to secure the area and obtain a warrant before they could lawfully search the premises. See Gooch, 6 F.3d at 679. Once the government's proffered justification for the warrantless search -- the consent of Olivia XXX and James XXX -- falls, there is no legal justification for the officers' actions on July 30, 2000.
Because Ms. XXX and Mr. XXX are certain that they were never asked, nor did they provide consent to search their
home, the evidence obtained as a result of the unlawful conduct by the police officers must be suppressed. The officers
simply determined that they were entitled to conduct a search of the home and garage, despite the absence of express
consent or exigency. The search and subsequent arrest of Mr. XXX were therefore presumptively unlawful and the
government cannot satisfy its burden of providing an exception to the Fourth Amendment's warrant requirement. Because
no such circumstances existed that could justify the officers' decision to search Ms. XXX's home without a warrant, the
evidence and any statements of Mr. XXX to law enforcement must be suppressed.
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CONCLUSION
For the foregoing reasons, Mr. XXX respectfully requests that this Court suppress all evidence and statements arising from the illegal search, seizure, and arrest which occurred in violation of the Fourth and Fifth Amendments.
Dated: April 13, 2001
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
1. This statement of facts is taken from the Incident Report prepared by San Francisco Police Officer L.E. Martin, a copy of which is attached hereto as Exhibit A, and where different, from the declarations of Olivia XXX and James XXX, attached hereto as Exhibits B and C, respectively.
2. Although the police report is unclear on this point, James XXX was actually in the garage at the time the police arrived. Officers approached both the front door of the home, where they were greeted by Olivia XXX at the front door, and the external garage door, where they met James XXX. See Declaration of James XXX attached hereto as Exhibit C.
3. The police report indicates that Mr. XXX was in handcuffs and being led to a patrol car by the officers at the time of this questioning. See Exh. A.
4. Although Parrish XXX does not reside at 2031 Thomas Avenue, he often stays with his grandmother and father as an overnight guest. See Exhibits B, C. He had been staying at 2031 Thomas Avenue for approximately two to three days at the time of his arrest on July 30, 3000. Id. As a guest in his grandmother's home, he has a reasonable expectation of privacy that is both subjectively and objectively reasonable; he therefore has standing to challenge the lawfulness of the officers' conduct. See Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 1689 (1990) ("staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society.")
5. The search cannot be saved by the argument that Ms. XXX opened her door and failed to object to the police officers' entry. Because of the coercion inherent in such an encounter with law enforcement, silence cannot be construed by law enforcement as consent. In order for the police to search a private residence on the basis of consent, that consent must be express and unequivocally given. See Shaibu, 920 F.2d at 1427.