IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. 92-0254 (SS)
)
xxxxxxxxxxx, )
xxxxxxxxxxx, and )
xxxxxxxxxx, )
)
Defendants. )
_________________________)
DEFENDANT xxxxxxxxxxxxx MOTION TO SUPPRESS
AND INCORPORATED MEMORANDUM IN SUPPORT
Defendant xxxxxx, through undersigned counsel, respectfully moves the Court for an order pursuant to Fed. R. Crim. P. 12(b)(3), suppressing all fruits of the unlawful seizure and search of his person, and of the unlawful entry and search of 1611 Irving Street, N.W. on June 4, 1992. The fruits include without limitation 37.5 grams of suspected cocaine base, $15.00 in U.S. currency, assorted ammunition, empty ziplocks of white residue, a pager, and any statements by xxxxxxxx.(1)
As grounds for this Motion, Mr. xxxxxxxx states through counsel that:
BACKGROUND
1. Mr. xxxxxxxx was arrested on June 4, 1992. According to the Criminal Complaint, Officers Weeks and Solloso were in an observation post in the area of the 1600 block of Irving Street, N.W. at about 5:05 p.m. The officers allegedly observed Mr. xxxxxxxx, Mr. Strothers, and Mr. Woodfork in front of 1611 Irving Street, N.W.
2. According to the Criminal Complaint, officers observed a "female subject" approach Mr. xxxxxxxx, observed Mr. xxxxxxxx "motion[]" to Mr. Woodfork, and observed Mr. Woodfork enter 1611 Irving Street, N.W. According to the Criminal Complaint, police observed Mr. Woodfork "open a small closet door located under the stairs and reach in and above the door." See Criminal Complaint. Police claim to have observed Mr. Woodfork "remove[] a bundle of clear plastic which contained white substance and open one of these bags and pick up something small out of it." See Criminal Complaint.
3. According to the Criminal Complaint, police then observed Mr. Woodfork return outside and give two ziplock bags to xxxxxxxx. Police claim that xxxxxxxx threw one ziplock bag to the "female subject." See Criminal Complaint. According to the Criminal Complaint, the "female subject" threw money toward the top of the steps in front of 1611 Irving Street, N.W.
4. Police claim that Mr. Strothers then collected the money, counted it, went inside 1611 Irving Street, N.W., entered the small closet, reached inside it, and returned outside.
5. According to the Criminal Complaint, Officers Weeks and Solloso then left their observation post and approached Mr. xxxxxxxx, Mr. Strothers, and Mr. Woodfork. According to the Criminal Complaint, Mr. xxxxxxxx threw one ziplock of white substance behind him while police were on the steps in front of 1611 Irving Street, N.W., and police recovered it.
6. According to the Criminal Complaint, police entered 1611 Irving Street, N.W., searched the small hallway closet, and recovered 37.5 grams of white substance, $15.00 in U.S. Currency, assorted ammunition, and empty ziplocks with white residue.
7. Contrary to the Criminal Complaint, evidence at the suppression hearing will show that police did not observe the sequence of events set forth in paragraphs 1 through 6, supra; that xxxxxxxx was seized and searched unlawfully; that the officers' warrantless entry into 1611 Irving Street, N.W. and warrantless search of the small hallway closet were unlawful; and that officers failed to knock and announce their purpose before entering 1611 Irving Street, N.W.
LEGAL PRINCIPLES
I. Unlawful Seizure of xxxxxxxx
8. "[T]he Fourth Amendment's protection against 'unreasonable . . . seizures' includes seizure of the person." California v. Hodari D., 111 S. Ct. 1547, 1549 (1991) (citation omitted). If a reasonable person in the defendant's position would not feel free "to disregard the police and go about his business," then the defendant has been seized. Id. at 1552.
9. To make a lawful arrest--the "quintessential 'seizure of the person' under our Fourth Amendment jurisprudence," id. at 1550--police must have probable cause to believe that a person has committed or is committing an offense, see Beck v. Ohio, 379 U.S. 89, 91 (1964). To conduct an investigative detention, the police need reasonable, articulable suspicion. See Terry v. Ohio, 392 U.S. 1, 21 (1968). xxxxxxxx was subject to arrest--not merely investigative detention--when, after leaving their observation post, police approached the front of 1611 Irving Street, N.W., walked up the steps toward xxxxxxxx and others, and searched xxxxxxxx's person. That arrest could only be justified by probable cause.
10. Because the officers arrested xxxxxxxx without a warrant, the prosecution bears the burden of proving probable cause for the arrest. See Beck v. Ohio, 379 U.S. at 91. The prosecution must establish that the facts and circumstances known to the officers at the time they seized xxxxxxxx justified that seizure and any search of xxxxxxxx. United States v. Jenkins, 530 F. Supp. 8, 10 (D.D.C. 1981).
11. xxxxxxxx anticipates that evidence adduced at an evidentiary hearing on this Motion will demonstrate that--contrary to the Criminal Complaint--officers were unable to observe the series of events described in paragraphs 1 through 6, supra. As a result, the officers lacked trustworthy information at the moment of arrest "sufficient to warrant a prudent man in believing that [xxxxxxxx] had committed or was committing an offense." Beck v. Ohio, 379 U.S. at 91. Because the officers' arrest of xxxxxxxx was not supported by probable cause, the Court should suppress all fruits of that unlawful arrest.(2)
12. Any statements that xxxxxxxx made after he was seized were among the tainted fruits of that illegal seizure. Accordingly, any such statements also must be suppressed. See Taylor v. Alabama, 457 U.S. 687 (1982); Dunaway v. New York, 442 U.S. 200, 220 (1979); Wong Sun v. United States, 371 U.S. 471 (1963).
Unlawful Entry and Search of 1611 Irving Street, N.W.
13. Police entered 1611 Irving Street, N.W. and searched the hallway closet without a search warrant, without consent, and without complying with the federal knock-and-announce statute, 18 U.S.C. § 3109. The unlawful entry and search violated the Fourth Amendment. See United States v. Fluker, 543 F.2d 709, 716-17 (9th Cir. 1976) (failure to knock and announce at outer doorway of two-unit dwelling); United States v. Carriger, 541 F.2d 545, 550 (6th Cir. 1976) (warrantless entry of common area of multi-unit dwelling); Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); United States v. Case, 435 F.2d 766, 768-69 (7th Cir. 1970); United States v. Rosenberg, 416 F.2d 680, 683 (7th Cir. 1969). As a result of the illegal entry and search of 1611 Irving Street, N.W., the evidence seized from inside the premises must be suppressed.
CONCLUSION
For the foregoing reasons, and for any additional reasons set forth at an evidentiary hearing or in supplemental pleadings that xxxxxxxx reserves the right to file, defendant xxxxxxxx requests that the Court suppress the fruits of his unlawful seizure and search, and of the unlawful entry and search of 1611 Irving Street, N.W. on June 4, 1992.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Leigh A. Kenny
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
Dated: July 13, 1992
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. 92-0254 (SS)
)
BERNARD xxxxxxxx, )
DONALD STROTHERS, and )
WILLIAM WOODFORK, )
)
Defendants. )
_________________________)
ORDER
Upon consideration of defendant xxxxxxxx's Motion to Suppress, the Incorporated Memorandum in Support thereof, the Government's Opposition thereto, and all of the evidence produced at the evidentiary hearing on the motion, it is this _________ day of ________________, 1992, hereby
ORDERED that defendant xxxxxxxx's Motion to Suppress is hereby granted; and it is further
ORDERED that the evidence in this case (including the suspected cocaine base) is hereby suppressed.
____________________________
UNITED STATES DISTRICT JUDGE
Copies to:
Leigh A. Kenny
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
Jonathan Zucker
2001 S Street, N.W. #630
Washington, D.C. 20009
Frederick J. Sullivan
12427 Sadler Lane
Bowie, Maryland 20715
David Payne
555 - 4th Street, N.W.
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of July 1992, the foregoing Defendant xxxxxxxx's Motion to Suppress and Incorporated Memorandum in Support was served by first-class mail, postage prepaid, upon:
Jonathan Zucker
2001 S Street, N.W. #630
Washington, D.C. 20009
Frederick J. Sullivan
12427 Sadler Lane
Bowie, Maryland 20715
David Payne
555 - 4th Street, N.W.
Washington, D.C. 20001
__________________________
Leigh A. Kenny
1. Defendant xxxxxxxx is submitting this Memorandum before receiving discovery from the government in this case. He reserves the right to supplement this Memorandum after receiving discovery. If discovery reveals any statements by xxxxxxxx, he reserves the right to move to suppress any such statements on the grounds that they occurred in response to custodial interrogation before he had received the warnings mandated by Miranda v. Arizona, 384 U.S. 436 (1966), and because they were involuntary.
2. Mr. xxxxxxxx's action in allegedly throwing down a ziplock was occasioned by the officer's illegal seizure and also was not sufficient to justify his detention. Cf. United States v. Eaglin, 759 F. Supp. 25, 27 & n.1 (D.D.C. 1991) (where seizure occurred before abandonment, abandonment did not defeat standing because abandonment was product of illegal seizure).