IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 95-2xx(RCL) v. :
:
:
xxxxxxxxxxxxxxx , :
:
Defendant. :
MOTION TO SUPPRESS TANGIBLE EVIDENCE
Defendant xxxxxxxxxxx, through counsel, respectfully moves the court to suppress as evidence at the trial of this case any and all tangible evidence recovered from Mr. xxxx subsequent to his arrest, and as grounds for his Motion, shows the court:
1. On September 27, 1995, Mr. xxxx was arrested and charged by complaint with possession of a firearm by a convicted felon. The affidavit in support of the criminal complaint, attached as Exhibit A, sets forth the facts which the government alleged resulted in Mr. xxxx's arrest. At the preliminary hearing on October 5, 1995, Officer Darrell Young testified in substantial conformity with the affidavit.(1)
2. No evidence was offered by Officer Young connecting Mr. xxxx to any drug activity in which co-defendant Talib Watson was allegedly involved. Officer Young testified that he and his partner were the first officers to arrive on the scene, so that any conduct by Mr. xxxx which could have been construed by Officer Young to be related to Watson's alleged drug activity would necessarily have been observed by him.
3. Therefore, the only evidence upon which the police could have relied to support Mr. xxxx's warrantless arrest was that Officer Young claimed to see Mr. xxxx in possession of "a dark object the size of a handgun." Exhibit A, para. 2. Based on that observation, the officers arrested Mr. xxxx, searched him and allegedly recovered from one of his pockets .38 caliber ammunition.
4. The arrest and search of Mr. xxxx was accomplished without probable cause. Because Mr. xxxx was arrested without a warrant, the arrest is valid only if supported by probable cause. Dunaway v. New York, 442 U.S. 200, 208 (1979); Henry v. United States, 361 U.S. 98, 100 (1959). "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." United States v. Henry, 361 U.S. at 100 (citations omitted). Here, no evidence supported any inference by police that Mr. xxxx was a participant in any illegal activity in which Mr. Watson was allegedly involved. The mere fact that Mr. xxxx was standing nearby when the police arrived and noticed Mr. Watson was insufficient to trigger such a belief. Moreover, the tip upon which the police relied to approach Mr. Watson (that a man was selling drugs from a Burgundy Subaru) did not mention anything about an accomplice or a gun and did not give rise to any inference that the object the police claimed to observe would be a weapon or any other contraband.
Given these facts, at most the police had a hunch or suspicion that the object they claimed to observe in Mr. xxxx's possession was contraband or a weapon. However, ". . . common rumor or report, suspicion, or even `strong reason to suspect,'" cannot support an arrest. Henry v. United States, 361 U.S. at 100 (citations omitted). See also, Wong Sun v. United States, 371 U.S. 471, 479 (1963); McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984); United States v. Fisher, 702 F.2d 372, 375 (1983).
In light of the foregoing, the ammunition allegedly recovered from Mr. xxxx should be suppressed as "fruits" of the illegal arrest. Wong Sun v. United States, 371 U.S. 471 (1963).
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
____________________________
Reita Pendry
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. A transcript of the preliminary hearing has been ordered on an expedited basis, but counsel has not yet received the transcript.