UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
Plaintiff, :
:
v. :
: CR. NO. 97-04xxxx
xxxxxxxxxxxxxxx, :
:
Defendant. :
DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE
AND INCORPORATED MEMORANDUM IN SUPPORT THEREOF
xxxxxxxx, through counsel and pursuant to the Fourth Amendment to the United States Constitution, moves this Court to suppress all evidence obtained as the result of the unlawful seizure of his person. Mr. xxxxxx requests an evidentiary hearing on this motion.
As grounds for this Motion, Mr. xxxxxx states:
1. He is charged by indictment with two counts of violation of 18 U.S.C. Sec. 922(g), unlawful possessioin of a firearm by a convicted felon, and unlawful possession of ammunition by a convicted felon.
2. On October 28, 1997, police officers from the Sixth District responded to a complaint in the 4600 block of Brooks Street, N.E., in Washington, D.C.
3. According to the government, while police were investigating the complaint, Mr.
xxxxxx arrived into the area in a taxicab, and police followed him to 4600 Clay Street,
N.E.
4. The complaint, it is alleged, was in reference to dogs being let loose in the neighborhood. Police officers approached Mr. xxxxxx and asked to speak with him.
5. Allegedly, Mr. xxxxxx did not choose to speak with the police officers concerning the complaint, and one of the police officers proceeded to attempt to frisk him.
6. At this point, allegedly a struggle ensued between Mr. xxxxxx and police officers who finally subdued and arrested Mr. xxxxxx.
7. Upon his arrest, police officers searched Mr. xxxxxx's person and found a gun in his pocket.
8. Mr. xxxxxx was seized without a warrant. Warrantless searches and seizures " 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).
9. 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), and cert. Denied, 114 S. Ct. 741 (1994); California v. Hodari, 111 S.Ct. 1547, 1552 (1991). A person is, therefore, 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, at 1551.
10. In the absence of probable cause, police can only conduct an investigatory detention of a person when they have a reasonable articulabe suspicion that a crime is being committed by the person being detained. Terry supra. Inarticulable hunches and generalized suspicion are insufficient to justify an investigatory detention. Id.
11. The police officers in this case did not have any reasonable, articulable suspicion to conduct a Terry stop, nor suspicion that they were in danger.
12. 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. Wong Sun v. United States, 371 F.2d 471 (1963).
WHEREFORE, for all the foregoing reasons, and for any other reasons this court deems just and proper, xxxxxx, through counsel, respectfully requests that this motion be granted, and that any physical evidence as the result of his unlawful seizure be suppressed.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that, on this ___ day of January, 1998, a copy of the foregoing Motion to Suppress Physical Evidence and Incorporated Memorandum of Points and Authorities, has been served upon Sima Sarrafin, Assistant United States Attorney, the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001, by leaving a copy at the United States District Courthouse drop box for the Office of the United States Attorney.
Valencia R. Rainey
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
Plaintiff; :
v. :
: CR. NO. 97-0467(JGP)
MARK ANTHONY xxxxxx, :
:
Defendant. :
ORDER
Upon consideration of Defendant's Motion to Suppress Physical Evidence and Incorporated Memorandum Of Points and Authorities, it is this day of , 1998, hereby
ORDERED that defendant's Motion is granted; and it is further
ORDERED that the prosecution shall be barred from using the tangible evidence found on Mr. xxxxxx's person at the trial in this case.
JOHN GARRETT PENN
UNITED STATES DISTRICT JUDGE
Copies to:
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W. Suite 550
Washington, D.C. 20004
Sima Sarrafin
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001