IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. 98-094-01 (PLF)
)
xxxxxxxxxxxxxx, )
)
Defendant. )
_________________________)
MOTION TO SUPPRESS TANGIBLE EVIDENCE
AND INCORPORATED MEMORANDUM OF POINTS AND
AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING
Defendant xxxxxxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order suppressing as evidence against him at trial tangible evidence that was allegedly seized, pursuant to his arrest and detention without probable cause. An evidentiary hearing on this motion is respectfully requested.
BACKGROUND
The discovery provided by the government indicates that on February 25, 1998, members of CID gun recovery unit observed Mr. xxxxxx standing next to a car. According to the police report, when Mr. xxxxxx saw the investigators (who were in an unmarked police vehicle), Mr. xxxxxx started walking away. The officers then chased Mr. xxxxxx, claiming that he appeared to be clutching his waistband in a manner which suggested that he had a weapon. The police claim that Mr. xxxxxx discarded a loaded handgun in a trash can located in the rear of 1226 18th Street, NE.(1)
The defense contends that the police officer's account of events is inaccurate, and that at an evidentiary hearing, it will be established that Mr. xxxxxx was, in fact, detained by the police before the discovery of any weapon, and that the initial detention was without probable cause, thereby rendering the discovery of any weapon or ammunition the fruit of the poisonous tree.
ARGUMENT
Warrantless searches and seizures, like the instant one, "are per se unreasonable ... subject only to a few specifically established and well delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). Fourth Amendment protection against unreasonable seizures applies to seizures of the person. California v. Hodari, 111 S.Ct. 1547, 1549 (1991); Henry v. United States, 361 U.S. 98, 100 (1959).
A seizure exists when a reasonable person in the defendant's position would not feel free to leave. United States v. Jones, 973 F.2d 928 (D.C. Cir.), vacated in part, 980 F.2d 746 (1992), cert. denied, 114 S. Ct. 741 (1994); Hodari, 111 S. Ct. at 1552 (1991). Therefore, a person is seized if s/he is restrained in some manner either by physical force or submission to a show of authority. Terry v. Ohio, 88 S. Ct. 1868, 1879 n. 16; United States v. Wood, 981 F.2d 536, 538 (D.C. Cir. 1992); Hodari, 111 S. Ct. at 1551.
In the absence of probable cause, the police can only conduct an investigatory detention of a person when they have a reasonable articulable suspicion that a crime was, is being, or has been committed by the person being detained. Terry, 88 S. Ct. at 1879. Inarticulable hunches and generalized suspicion are insufficient to justify an investigatory detention. Id. The police officers in this case had neither probable cause nor reasonable suspicion to initially detain Mr. xxxxxx. And, it is submitted that at an evidentiary hearing, it will be established that the facts here are inapposite with those in Hodari since the officers here showed their authority, and Mr. xxxxxx, at least temporarily yielded to that authority. Such, even momentary, submissions to a Mendenhall show of authority, see United States v. Mendenhall, 446 U.S. 544, 554 (1980), constitute a seizure for Fourth Amendment purposes. United States v. Wood, 981 F.2d 53, 540 (D.C. Cir. 1992).
The government has the burden of demonstrating that a warrantless seizure and/or search was legal. Chimel v. California, 395 U.S. 752, 762 (1969). Absent such a showing, the seizure is deemed illegal and all evidence obtained as a result must be suppressed. Wood, 981 F.2d at 541; Wong Sun v. United States, 371 U.S. 471 (1963). CONCLUSION
Accordingly, Mr. xxxxxx moves the Court to suppress the evidence ultimately obtained as a result of the unlawful seizure of his person.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
L. Barrett Boss
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. 98-094-01 (PLF)
)
xxxxxxxxx xxxxxx, )
)
Defendant. )
_________________________)
O R D E R
Upon consideration of Defendant xxxxxx Motion to Suppress Tangible Evidence, the Incorporated Memorandum of Points and Authorities and Request for Evidentiary Hearing thereof, the government's Response thereto, and the record of the evidentiary hearing in this matter, it is this ________ day of _____________, 1998, hereby
ORDERED that defendant xxxxxx Motion is granted; and it is further
ORDERED that the gun and ammunition seized by the police on February 25, 1998, be suppressed.
________________________________
Paul L. Friedman
UNITED STATES DISTRICT JUDGE
Copies to:
L. Barrett Boss
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
AUSA G. Bradley Weinsheimer
555 - 4th Street, N.W.
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of April, 1998, the foregoing Motion, and the Memorandum in Support, were served by hand (drop box), upon:
G. Bradley Weinsheimer
Assistant U.S. Attorney
555 - 4th Street, N.W.
Washington, D.C. 20001
__________________________
L. Barrett Boss
Assistant Federal Public Defender
1. The discussion of the government's factual allegations in this motion should not be construed as a concession that those allegations are correct..