IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 9xxxx (HHG)
v. :
:
xxxxxxxxxxxx, :
:
Defendant. :
MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS
Defendant xxxxxxxxxxxxxx, through counsel, pursuant to
Fed. R. Crim. P. 12(b) and the Fourth Amendment to the United States Constitution, respectfully moves the court to suppress as evidence against him at the trial of this case any and all tangible evidence recovered on May 30, 1996 from or in the vicinity of a brown Mercury automobile bearing District of Columbia tag number 200IIX, and any and all statements made to police on or after that same date, and as grounds for the Motion, shows the court:
1. Mr. xxxxx was arrested on May 30, 1996 and charged with possession with intent to distribute cocaine base. On June 18, 1996, Mr. he was indicted by a grand jury in a two-count indictment charging possession with intent to distribute cocaine base and possession with intent to distribute cocaine base within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860.
2. Trial is scheduled to commence on the indictment on August 26, 1996. At trial, the government proposes to use evidence seized from in or around a brown Mercury with District of Columbia tag number 200 IIX, which the government will establish belongs to Mr. xxxxx. Further, the government proposes to use certain statements allegedly made by Mr. xxxxx subsequent to his arrest on May 30, 1996.
3. For the reasons set out herein, neither the tangible evidence nor the statements are admissible against Mr. xxxxx at the trial of this case.
ARGUMENT
The tangible evidence which the government proposes to use at trial consists of 222 grams of a substance which is believed to be cocaine base.(1) According to the government's evidence, provided to counsel as discovery pursuant to Fed. R. Crim. P. 16, on May 30, 1996, at about 9:50 p.m., Metropolitan Police Department (MPD) officers received a tip that two subjects, one of them named "Shawn," were holding crack cocaine in a brown Mercury bearing District of Columbia tag number 200IIX. Police went to the area, observed a car matching the description, observed two people in the car, and approached the occupants of the car to investigate. As the officers approached Mr. xxxxx, he dropped a bag containing cocaine base outside of the car and onto the ground. Mr. xxxxx was then arrested. Subsequent to his arrest, he made certain exculpatory statements to police.
The arrest of Mr. xxxxx was accomplished without a warrant. Therefore, the government must satisfy this court that it had either probable cause to arrest Mr. xxxxx for the commission of a crime or an articulable suspicion to approach him to investigate whether he was involved in criminal activity. In relying on a tip to furnish either probable cause or articulable suspicion, certain predicates must be established: the tip must come from a reliable source, with a basis of knowledge about matters relayed in the tip, and the tip must be corroborated. See, Illinois v. Gates, 462 U.S. 213 (1983); Alabama v. White, 496 U.S. 325, 330-31 (1990). Unless the government can meet this burden, the tangible evidence which was recovered in reliance upon the tip must be suppressed.(2)
Because, at a hearing on this Motion, the defense anticipates that the government will not be able to meet its burden of justifying this warrantless arrest, Mr. xxxxx respectfully requests that this Motion be granted and that the court suppress the tangible evidence and statements as evidence against him at the trial of this case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
___________________________
Tony Miles
Reita Pendry
Assistant Federal Defender
Counsel for Shawn xxxxx
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. According to information received by counsel as discovery pursuant to Fed. R. Crim. P. 16, the government's chemist has not completed the analysis of the substance recovered from in or around the brown Mercury.
2. The government may claim that Mr. xxxxx abandoned the cocaine base when he threw it from the car. However, in order to prove abandonment, the government must show that when Mr. xxxxx relinquished control of the property in anticipation of arrest, he did not do so in response to improper police conduct. Smith v. Ohio, 494 U.S. 541, 543-44 (1990); United States v. Brady, 842 F.2d 1313, 1315 n.7 (D. C. Cir. 1988). Unless the tip which preceded the police approaching Mr. xxxxx was supported by probable cause or articulable suspicion, the government cannot make that showing.