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 XXX
IN
THE UNITED STATES DISTRICT COURT
FOR
THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CR. No. XXX-XXXX-XX
)
Plaintiff, ) DEFENDANT=S NOTICE OF
) MOTION AND MOTION TO
) SUPPRESS EVIDENCE AND
v. ) STATEMENTS; REQUEST ) FOR EVIDENTIARY HEARING;
) MEMORANDUM OF
) POINTS AND AUTHORITIES
XXX 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 XXX XXX will move this Court to suppress all statements and evidence obtained through a
warrantless search of the home located at XXX XXX 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.
/ / /
INTRODUCTION
XXX 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 XXX was arrested on July
30, 2000, following a warrantless search of his XXX XXX=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 XXX= XXX XXX XXX XXX. Mr.XXX XXX
was indicted by a federal grand jury on August 17, 2000. Mr.XXX XXX was not brought to federal court
until February 14, 2001.
Mr.XXX 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 XXX 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 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 XXX XXX 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 Asuspicious
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 Ablack and white suit@ had fired one shot from a rifle
and had then gone into the garage of the home at XXX XXX. 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 XXX XXXwith her son.
Id.
The officers
arrived and were approached by the second individual, XXX XXX, who said to the
officers that the black male adult who fired the gun was inside the garage of
XXX XXX. The officers approached the
residence and Acontacted an elderly black female adult, XXX XXX and her son,
XXX XXXXXX XXX.@ Id. XXX XXX informed the officers that she had
heard a sound, but thought that it was a firecracker. Id. The officers then
asked XXX XXX and Mr.XXX XXX whether there were any people in the garage.[2] XXX XXX told the officers that her grandson
was inside of the garage. Id. According to the officers, XXX XXX and
Mr.XXX XXX then consented to the search of both the garage and the home. Id.
XXX XXX,
however, is certain that she never consented to the search of her home or
garage. See Declaration of XXX
XXX, Exhibit B. XXX XXXXXX XXX (XXX XXX=
father) was inside the garage at the time the officers arrived. SeeXXX XXX Decl., Exh. C. XXX XXX is also certain that he did not
provide consent to search. Id. To the contrary, when the officers
entered the garage, Mr.XXX XXX remembers telling the officers words to the
effect of: AYou don=t have a warrant. You can=t do this.@ Id.
The officers
ignored him and entered the garage where they found Athree 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 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 XXX 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 XXX was taken into custody. Mr.XXX 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. XXX XXXXXX XXX recalls
hearing the officers ask his son and the other occupants of the garage Awhere=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 XXX XXXXXX 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 XXX= constitutional rights.
ARGUMENT
I. The
Warrantless Search of XXX XXX Was Presumptively Unlawful and Cannot Be
Justified By Any Exception to the Warrant Requirement
AIt 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[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 Along‑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 A. . .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 Amere acquiescence to a claim of lawful
authority@ will not support a finding of consent. Id. at 1426. The
court held that A. . . 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 Athose 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 Aexigency 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 Aheavy 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 Ainconvenient@ to obtain a
warrant. United States v. Gooch,
6 F.3d 673, 679, n.3 (9th Cir. 1993).
In Gooch, 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 XXX XXX=s home on July 30, 2000,
did not have a search or arrest warrant.[4] Nor did they have the consent of XXX
XXX. See Price Decl., Exh.
B. As the attached declaration makes
clear, XXX XXX did not expressly consent to the search of her home. Id.
She remembers answering her front door, and several officers Abarging@
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. XXX XXXXXX XXX similarly did not provide
consent to search his home. SeeXXX
XXX Decl., Exh. C. The sworn testimony
of XXX XXX and XXX XXXXXX XXX contradicts the police report, which states that AXXX
XXX and XXX XXXXXX XXX gave [the officers] consent to search the garage and the
entire house.@ See Exh. A at 3.
When the
officers entered XXX 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 Asitting 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 XXX XXX. There is no evidence that XXX 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 XXX XXX and XXX
XXXXXX XXX -- falls, there is no legal justification for the officers= actions
on July 30, 2000.
Because XXX
XXX and Mr.XXX 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 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 XXX
XXX=s home without a warrant, the evidence and any statements of Mr.XXX XXX to
law enforcement must be suppressed.
/ / /
/ / /
/ / /
/ / /
CONCLUSION
For the
foregoing reasons, Mr.XXX 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 XXX XXX and XXX XXXXXX XXX, attached hereto as Exhibits B and C, respectively.
[2] Although the police report is unclear on this point, XXX XXXXXX 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 XXX XXX at the front door, and the external garage door, where they met XXX XXXXXX XXX. See Declaration of XXX XXXXXX XXX attached hereto as Exhibit C.
[3] The police report indicates that Mr.XXX 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 XXX XXX does not reside at XXX XXX, he often stays with his XXX XXX and father as an overnight guest. See Exhibits B, C. He had been staying at XXX XXX for approximately two to three days at the time of his arrest on July 30, 3000. Id. As a guest in his XXX XXX=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) (Astaying 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 XXX 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.