BARRY J

BARRY J. PORTMAN

Federal Public Defender

LUPE MARTINEZ

Assistant Federal Public Defender

1301 Clay Street, Room 200C

Oakland, California 94612

Telephone: (510) 637-3500

Counsel for Defendant XXX XXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

XXX XXX XXX XXX,

Defendant.

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No.CR XX-XXXX-XX

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

Pursuant to the Fourth Amendment of the Constitution, Mr. XXX XXX moves to suppress all evidence discovered as a result of the illegal arrest. Specifically, he moves to suppress evidence obtained by the INS agent while he was in jail after the arrest, which retains the taint of the illegal arrest.

STATEMENT OF FACTS[1]

On Friday, September 27, 1996, XXX XXX XXX XXX, Miguel Ramirez and another man were talking near a taco truck located at 14th Avenue and 90th Street in Oakland, California.

A police car approached the men. Four Oakland police officers advanced towards Mr. XXX XXX and the other two men. One officer asked, "Where are the drugs?" and then searched Mr. XXX XXX. The officer did not find any drugs.

The officers then arrested Mr. XXX XXX for being drunk in public. Mr. XXX XXX was neither drunk nor on any controlled substance that day. He was taken into custody and incarcerated at the Oakland City Jail. Mr. XXX XXX was detained over the weekend.

The following Monday, Special Agent SuLan Peebles of Immigration and Naturalization Services interviewed Mr. XXX XXX at the jail. Mr. XXX XXX was advised of and waived his Miranda warnings. He told Special Agent Peebles he was a citizen of Mexico. Mr. XXX XXX also said he crossed the international border at or near San Ysidro, California, after he was deported on November 8, 1995, without first obtaining consent of the U.S. Attorney General.

On the basis of Mr. XXX XXX's statement to Special Agent Peebles, the United States Attorney filed a complaint charging XXX XXX XXX XXX with violating 8 U.S.C. ' 1326(B)(2).

ARGUMENT

A. THE ARREST OF MR. XXX XXX WAS UNCONSTITUTIONAL BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE HE WAS DRUNK IN PUBLIC.

An arrest based on less than probable cause violates the Forth Amendment of the Constitution. United States v. Ricardo D., 912 F.2d 337, 343 (9th Cir. 1990). The burden of showing probable cause to make a warrantless arrest is on the government. United States v. Strickler, 490 F.2d 378,380 (9th Cir. 1974). Probable cause for an arrest requires, at the time of arrest, that an officer have knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that an arrestee had committed or was committing crime. Ricardo D., 912 F.2d at 342. Probable cause requires both a reasonable belief that an offense has been or is about to be committed and that the suspect is the one who committed the offense. United States v. Moses, 796 F.2d 281, 283 (9th Cir. 1986).

In the instant case, Mr. XXX XXX was arrested for being intoxicated in public. Probable cause to believe that Mr. XXX XXX was intoxicated in public requires that he appeared to be acting in a manner sufficient to lead a reasonable officer to believe he was intoxicated. Here, the Government has made absolutely no showing that there was probable cause for the warrantless arrest of Mr. XXX XXX.

At the time of his arrest Mr. XXX XXX was talking with two friends next to a taco truck. Four Oakland police officers approached Mr. XXX XXX and his friends. The officers questioned them and asked, Awhere are the drugs?@ Mr. XXX XXX fully complied with the officer=s request to search him. Although they did not find any drugs or weapons, the officers arrested Mr. XXX XXX.

These actions the police observed do not constitute Aparticularized evidence of suspicious criminal activity.@ United States v. Erwin, 803 F.2d 1505, 1511 (9th Cir. 1986). The officers are left with facts that describe a generalized meeting that is just as consistent with Mr. XXX XXX=s innocence as with suspicious conduct.

Moreover, Mr. XXX XXX was in fact not intoxicated or on any controlled substance when he was arrested. The police did not find any evidence showing that Mr. XXX XXX had any drugs or was taking any drugs. Because Mr. XXX XXX was engaged in wholly innocent conduct at the time, the police had no probable cause to arrest him.

Based upon the circumstances, the officers did not have a reasonably trustworthy belief that Mr. XXX XXX was intoxicated in public. The government has not met its burden of showing probable cause for the warrantless arrest of Mr. XXX XXX. In addition, there was no probable cause for the arrest.

B. THE COURT MUST EXCLUDE STATEMENTS OBTAINED FROM AN ILLEGAL ARREST AS THE TAINTED FRUITS OF THE VIOLATION OF MR. GARIBAY- NAVARRO=S FOURTH AMENDMENT RIGHTS.

The Fourth Amendment exclusionary rule applies to statements and evidence obtained following an illegal arrest. Wong Sun v. United States, 371 U.S. 471, 484-88 (1963).

I would rework the previous sentence/paragraph a little bit. (1) It might be better not to call it the "Fourth Amendment exclusionary rule" because I think there is some (Supreme Court fairly recent bad) law explaining that the exclusionary rule itself is not constitutionally based. (2) I would break this sentence into two and maybe even add a third sentence with some generic statements about the exclusionary rule (preferable citing some relatively recent Ninth Circuit case). The judges should know by now what you're talking about when you refer to the exclusionary rule (though their law clerks may not), but it's still a good idea to put in some "boilerplate" language setting forth the rule in the best possible terms for your argument.

In Wong Sun, the Court identified three factors relevant to determining whether a statement is obtained by an exploitation of an illegal arrest. These are: (1) the temporal proximity of the arrest and the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the police misconduct. Ricardo D., 912 F.2d at 342 (quoting Wong Sun, 371 U.S. at 486).

In the present case, Mr. XXX XXX was arrested on Friday, September 27, and interviewed on, the following Monday, September 30. At the interview, he made two incriminating statements to INS agent Peebles. The brief time between Mr. XXX XXX=s arrest and interview -- one weekend -- indicates a strong temporal proximity between the illegal arrest and the statement.

In United States v. Perez-Castro, 606 F.2d 251 (9th Cir. 1979), the Ninth Circuit addressed a similar issue on substantially similar facts. After an unlawful arrest, Mr. Perez-Castro was taken to the U.S. Border Patrol Office and detained overnight. During routine processing, he made two incriminating statements. Mr. Perez-Castro said he was from El Salvador and had entered the United States illegally. Subsequently, he was prosecuted for a violation of 8 U.S.C. ' 1325. The Ninth Circuit held that statements the defendant made during questioning by a border patrol agent on the morning after the arrest were not sufficiently removed from the arrest to be purged of the taint of illegality. Id. at 253.

In United States v. Restrepedo, 890 F.Supp. 180, 199 (E.D.N.Y. 1995), the court ruled that statements made by defendant while in custody for an entire weekend were not sufficiently attenuated from the unlawful arrest to remove the taint. Similarly, Mr. XXX XXX's statement followed on the heels of his illegal arrest, separated by only one weekend of detention. Here, as in Perez-Castro and Restrepedo, there is a strong temporal proximity between the illegal arrest and Mr. XXX XXX's statement.

The fact that Mr. XXX XXX was in police custody from the time of the illegal arrest until the time of the interview also suggests that there were no intervening circumstances to purge the taint of the illegal arrest. Mr. XXX XXX was arrested and detained by the Oakland police then interviewed by INS agent Peebles at the Oakland jail. The continuity of detention indicates a very strong causal connection between the illegal arrest and the interview.

Although Mr. XXX XXX was read and waived his Miranda rights before he made a statement, Aalone and per se@ Miranda warnings are not necessarily sufficient to break the causal connection between an illegal arrest and subsequent confession. Ricardo D., 912 F.2d at 343. In Ricardo D., for example, the defendant was read and waived his Miranda warnings. The court found, however, that he was not free from police influence for any significant time so as to break the causal chain from the prior unlawful arrest.

In light of the custodial nature of the interview, Mr. XXX XXX=s waiver of his Miranda rights did not serve as an intervening circumstance. His statement was not sufficiently attenuated to purge the taint of an illegal arrest.

Finally, the purpose and flagrancy of the official misconduct here is conspicuous. Mr. XXX XXX was first questioned by police about drugs, then arrested for being drunk in public, then ultimately questioned regarding INS matters. The time between the illegal arrest and the interview suggests that Mr. XXX XXX was detained for the purpose of prompting him to make an incriminating statement. The unlawful detention coupled with the fact that the police apparently contacted INS agent Peebles and arranged an interview indicates a collusive nature of the detention. [is there a cite you can add here to support your collusion argument?]

In sum, Mr. XXX XXX's statement to INS agent Peebles retains the taint of an unlawful arrest by the Oakland Police Department. This statement must be excluded under the fruit of the poisonous tree doctrine of the exclusionary rule.

CONCLUSION

For all the reasons set forth above, Mr. XXX XXX respectfully requests that the Court grant the instant motion and order his statement suppressed. In the alternative, he requests the Court to order an evidentiary hearing to be held on this matter to resolve any disputed issues of fact. United States v. Licavoli, 604 F.2d 613, 621 (9th Cir. 1979), cert. denied, 446 U.S. 935 (1980).

Dated: February____, 1997

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

LUPE MARTINEZ

Assistant Federal Public Defender

[1]The facts underlying this motion are derived from the criminal complaint, which includes an affidavit by SuLan Peebles, Special Agent with the United States Department of Justice, Immigration and Naturalization Services (Exhibit A to XXX XXX's Motion to Suppress Evidence) and from the Declaration of XXX XXX XXX XXX (Exhibit B to XXX XXX's Motion to Suppress Evidence).