IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: CRIMINAL NO. 96-363(LFO)
xxxxxxxxxxxxxxx, :
:
Defendant. :
______________________________:
MOTION TO REOPEN SUPPRESSION HEARING
AND GRANT MOTION TO SUPPRESS
AND SUPPORTING POINTS AND AUTHORITIES
xxxxxx, through undersigned counsel, respectfully moves this Honorable Court to grant this Motion to Reopen and Reconsider his Motion to Suppress, and to grant his Motion to Suppress. As grounds for this Motion, Mr. xxxxxxx states through counsel that:
1. On January 7, 1997, this court denied Defendant xxxxxxx's motion to suppress on the grounds that the government had established sufficient probable cause to arrest Mr. xxxxxxx without a warrant. (Tr. 1/7/97 at 83).
2. During the trial, when there was material conflicting testimony by the officer who testified at the suppression hearing, the defendant moved to reopen the suppression hearing.
3. The court, at that time deferred ruling on the defense request.
4. Upon conviction by a jury, the court invited counsel to file a written motion in support of its oral motion.
5. Defendant submits that the contradictions in the police officers testimonies are such that they would defeat any claim of credibility regarding any and all testimony that served as the basis for the court's finding of probable cause.
6. According to Officer Gardner's testimony at the suppression hearing, he along with two other officers, Officers Gardner, and Domino, were on duty on September 19, 1996. They were driving toward McKinley Senior High, in the vicinity of Florida Ave. and P St., Northwest, in the District of Columbia. (Tr. 1/7/97 at 19).
7. The officers, according to Gardner, pulled into the Amoco station parking lot because Officer Brevard had noticed a car in the gas station lot, a Nissan Maxima, and he wanted to inquire about similar parts for his own car (Trans. 1/7/97 at 44-45).
8. Officer Gardner also testified at the suppression hearing that he wanted to investigate a car he saw with the broken vent window to check if it was stolen. (Trans. 1/7/97 at 27). Broken vent windows "brings my attention to stolen vehicles," testified Officer Gardner. (Tr. 1/7/97 at 27).
9. According to his testimony, Officer Gardner asked Officer Brevard to drive out of the station and back in, at which time the officers stopped the police car, exited, and approached the stopped vehicle.
10. Officer Gardner testified under cross examination that when the officers approached the car with the broken vent window the reason was to determine whether the car was stolen. (Tr 1/7/97 at 49)
11. Officer Gardner also testified that as he and Officer Brevard approached the vehicle the driver's side window was down ( TR 1/7/97 at 50).
12. Both officers, according to Officer Gardner's testimony, stood near the driver's door when Officer Brevard asked the driver to get out of the car, while Officer Gardner went to the passenger side and told the male rear passenger to get out of the car. (Tr 1/7/97 at 51).
13. According to his testimony at the hearing, Officer Gardner stated that he walked over to the passenger side to keep his attention focused on the passengers, and did not ask the male passenger to exit the car until he heard Officer Brevard exclaim "What's this?" At that point, Officer Brevard motioned to Officer Domino to lift up the floor mat revealing a gun.
14. Under cross examination, Officer Gardner testified that Mr. xxxxxxx, the driver of the burgundy Granada with the missing vent window, was never asked for his registration, but he tried to give it to the officers as they approached the car, and attempted to hand it to Officer Brevard. (Tr. 1/7/97 at 53)
15. Before the Court denied the defendant's Motion to Suppress, counsel reviewed for the Court the facts at that time that severely impacted on the credibility of Officer Gardner. Those factual considerations were as follows:
1. visibility of license plate as evidenced by photo clearly raised issue of credibility (Mot., p. 74)
2. no physical evidence of any use of any kind of marijuana (Tr. 1/7/97 at 74)
The Court itself voiced its concerns regarding whether or not there was in fact any evidence of marijuana usage or possession, when it queried, Assistant United States Attorney Kolb:
Did you ask Officer Domino on direct examination about the Marijuana?
Ms. Kolb: Your Honor, I did not. (Tr. 1/7/91 at 74)
The court was indeed troubled by the omission by Officer Domino
on direct examination of the mention of any aroma of marijuana,
when it asked the government:
And you don't think I should draw any adverse inference from the fact that you chose not to attempt to corroborate the first officer's testimony about the marijuana? (Tr.1/7/97 at 78)
Defendant submits that on its face, the fact that the United
States elected not to question on direct testimony Officer Domino
regarding the smell of marijuana raises doubt as to the existence
of any such smell of marijuana.
Further, when the Court asked the government the following:
Every officer in the United States who is on the street can testify at any time that he is familiar with the smell of marijuana and so anytime anybody wants to take somebody out of a car they just testify I smell marijuana. (Tr. 1/7/97 at 76)
The Court then further asked the government:
Why should I believe them? (Tr.1/7/97 at 76)
It is clear from this dialogue that the granting of the Motion to
Suppress Tangible Evidence rested on a credibility determination that was resolved in favor of the United States.
16. Defendant submits that during the trial, when the United States presented the testimony of Officer Brevard, who was present for the stop, search and arrest of the defendant there was material conflicting testimony such that had the trial court been presented with that testimony, defendant submits that the United States would not have been able to meet the preponderance of evidence standard and as such, the Court would have and should have suppressed the tangible evidence.
17. According to Officer Brevard's trial testimony, the reason for driving into the parking lot was because the officers saw a Nissan Maxima that looked stolen. (Tr. 2/5/97 at 45) His testimony contradicted Officer Gardner's suppression hearing testimony concerning the reason the officers pulled into the parking lot: Officer Gardner testified it was to look at the Nissan because Officer Brevard was interested in the parts of the car; Officer Brevard testified it was to check on the car because they thought it was stolen.
18. None of the Officers, Gardner, Brevard or Domino, made an effort to check with the NCIC (National Crime Information Center) to verify any suspicions about a stolen car.
19. At trial, Officer Brevard testified on direct examination that, as he approached the car, he smelled marijuana and that the male passenger in the rear seat stated that ". . . the marijuana is all gone." (Tr. 2/5/97 at 47) Officer Gardner never testified that the passenger made any comment about marijuana. Gardner was standing right next to Officer Brevard when they had approached the car.(Tr.1/7/97 at 51)
11. There was no physical evidence of marijuana, residue or paraphenalia, even though the officers testified that they smelled marijuana.
12. In addition, since the government elected to call Officer Gardner for the suppression hearing, defense counsel was unable to impeach this officer with any of the police reports. Although defense counsel had the police reports at the suppression hearing, they were the reports of Officer Brevard and could not be used for impeachment of Officer Gardner at the suppression hearing.
ARGUMENT
A district court's authority to consider anew a suppression motion previously denied is within its sound judicial discretion. United States v. Raddatz, 447 U.S. 667, 678, n. 6 (1980). The law is clear that the defendant can, in some circumstances, secure a fresh determination at trial concerning the admissibility of seized evidence after a denial of his pretrial motion to suppress. Gouled v. United States, 255 U.S. 298 (1921). New facts, new light on the credibility of government witnesses, or other matters appearing at trial may cast reasonable doubt on the pretrial ruling. Rouse v. United States, 359 F.2d 1014, 1016 (D.C. Cir. 1966); Anderson v. United States, 352 F.2d 945,947 (1965). It is the duty of the trial judge to consider de novo the issue of suppression and, if necessary, hold a hearing out of the presence of the jury. McNabb v. United States, 318 U.S. 332, 346 (1943), cited in Rouse at 1016.
Suppression hearings ". . . are as important as the trial which may follow." Gannett Co. v. DePasquale, 443 U.S. 368, 397, n. 1 (1979). Nowhere is a police officer's testimony so important as in a pretrial suppression hearing, because the government's entire case may rest on whether the suppression judge believed that the police officers involved had probable cause to approach a defendant and search his car. A ruling on a suppression motion virtually determines the outcome of a case.
The Fourth Amendment still provides that "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. Amend. IV. Mr. xxxxxxx's seizure was effectuated without a warrant and, therefore, the government bears the burden of proving that it was legal. Hayes v. Florida, 470 U.S. 811 (1985); United States v. Allen, 629 F.2d 51,55 (D.C. Cir. 1980). The government bears the burden of adducing sworn testimony sufficient to satisfy this Court that the facts and circumstances known to the arresting officers at the time they seized Mr. xxxxxxx justifies the seizure. United States v. Jenkins, 530 F. Supp. 8, 10 (D.D.C. 1981), citing, Brinegar v. United States, 338 U.S. 160, 175 (1949). The Fourth Amendment's protection against unreasonable searches and seizures has been construed to require probable cause for warrantless arrests and searches. Henry v. United States, 361 U.S. 98 (1959). Probable cause exists when, under the facts and circumstances of the situation, a person of reasonable prudence would believe that a crime has been committed or is being committed. Beck v. Ohio, 379 U.S. 89 (1964)
At the time Mr. xxxxxxx was approached and told to exit his car, he was seized for Fourth Amendment purposes without probable cause to believe that an offense had been committed, that Mr. xxxxxxx had committed any crime, or that Mr. xxxxxxx or his passengers were in the process of any criminal activity. If, as Officer Gardner implied in his testimony, the fact that a broken vent window triggered a symbol of a stolen car, it would have seemed likely that any one of the three officers who had arrived on the scene that day would radio in the car's identification in order to determine whether it was, in fact, stolen.
The material conflicting testimonies by Officers Gardner and Brevard, however, raise questions of credibility. If the broken vent window raised suspicions that the car was stolen, why wasn't a radio check performed. Mr. xxxxxxx was attempting to give his license and registration to Officer Brevard who, in fact, ignored the offer and ordered Mr. xxxxxxx out of his car. By seizing and forcing Mr. xxxxxxx out of his car, on the pretext of smelling marijuana, it did not appear that the officers were concerned with determining whether the car was actually stolen. Officer Gardner and Officer Brevard contradict each other as to the reason for approaching the car, there is a question as to whether the testimony on the marijuana smell supports a pretext for seizing and searching Mr. xxxxxxx's car. If one officer contends that the car was approached because the officers believed it was a stolen car, basing that belief on a broken vent window, then the fact that Officer Brevard, and Officer Gardner, ignored Mr. xxxxxxx's offer of his legal registration adds the spectra that neither officer was really interested in the registration of the car. This is compounded with the fact that none of the officers made any attempt to verify the car's ownership before approaching the car. It is clear then, in this case, that the officers' reason for approaching the car, the seizure of Mr. xxxxxxx, and the subsequent search of his car, are suspect.
It would be an aberration of justice and law if we permitted law enforcement officers to approach any car on suspicions that it is stolen, claim they smelled marijuana and, on that basis, force a driver out of his car and then seize evidence that would justify an arrest.
In the present case, the facts and circumstances known to Officer Gardner, and the other two police officers, at the time they pulled into the gas station parking lot were not sufficient to justify the search and seizure of Mr. xxxxxxx. Mr. xxxxxxx's mere presence as a driver in a stopped car could not support a reasonable belief that he was involved in any criminal activity. Therefore, the search and seizure of Mr. xxxxxxx, without probable cause, were illegal, and all of the evidence seized as a result of the illegal search in this case must be suppressed. Wrong Sun v. United States, 371 U.S. 471 (1963).
CONCLUSION
For the foregoing reasons, and for any additional reasons set forth at a rehearing or subsequent pleadings that Mr. xxxxxxx reserves the right to file, defendant xxxxxxx requests that the Court rehear his motion to suppress the evidence of his illegal search and seizure and grant his motion to suppress.
Respectfully submitted,
A.J. KRAMER
Amy Seidman
Assistant Federal Defender