IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

v. :

: CRIMINAL NO. 9x-434(HHK)

xxxxxxxxxxxxxxxxxx :

Defendant. :

______________________________:

MOTION TO SUPPRESS TANGIBLE EVIDENCE

AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES

AND REQUEST FOR EVIDENTIARY HEARING

xxxxxxx, through undersigned counsel, respectfully requests, pursuant to the Fourth Amendment to the Constitution, that the tangible evidence against him be suppressed at trial. An evidentiary hearing on this motion is respectfully requested.

As grounds for this Motion, Mr. xxxxxxxxxx, through counsel, states:

1. Mr. xxxxxxxxxx, is charged by a grand jury original indictment with possession of a weapon and ammunition in violation of 18 U.S.C. section 922(g)(1).

2. On November 20, 1998, United States Park Police Officers arrested Mr. xxxxxxxxxx at the intersection of Martin Luther King, Jr., Avenue and Randle Place, SE. The officers allege that they observed Mr. xxxxxxxxxx and a passenger, Derrick Miles, driving a white Cadillac "with no lights on". The officers conducted a traffic stop and requested Mr. xxxxxxxxxx's driver's license and registration. Mr. xxxxxxxxxx complied.

3. Meanwhile, the officers ran a check of the vehicle's tags and determined that they were assigned to a Honda, not a Cadillac. Also, they determined that the registration was not listed to the Cadillac.

4. The officers asked Mr. xxxxxxxxxx to exit the car and walk to the rear of the car. Sgt. MacLean than asked Mr. xxxxxxxxxx if he had any guns, knives or weapons on his person. Sgt. MacLean than began to pat-down Mr. xxxxxxxxxx and allegedly recovered a 9mm Smith and Wesson pistol from his coat pocket. Mr. xxxxxxxxxx was placed under arrest and transported to the U.S. Park Police District 5 Station. According to the discovery received by the undersigned, he did not make any statements. LEGAL PRINCIPLES

I. MR. xxxxxxxxxx WAS ARRESTED WITHOUT A WARRANT

Because Mr. xxxxxxxxxx's initial frisk, search and seizure was effectuated without a warrant, the government bears the burden of proving that it was legal. Hayes v. Florida, 470 U.S. 811 (1985); Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Allen, 629 F.2d 51, 55 (D.C. Cir. 1980). See also Katz v. United States, 389 U.S. 347 (1967); Henry v. United States, 361 U.S. 98 (1958). 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. xxxxxxxxxx, justified that 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).

In this case, the officers lacked probable cause to seize,

search and arrest Mr. xxxxxxxxxx. Further, they lacked reasonable and articulable suspicion to frisk Mr. xxxxxxxxxx. The physical evidence obtained by the officers should be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963).

Respectfully submitted,

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

Valencia R. Rainey

Assistant Federal Public Defender 625 Indiana Avenue, N.W. Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

This is to certify that, on this 16th day of February, 1999, a copy of the foregoing Motion To Suppress Statements and Tangible Evidence and Incorporated Memorandum of Points and Authorities In Support Thereof and Request For Evidentiary Hearing has been served upon Richard Dominguez, Esq., Assistant United States Attorney, the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001, by facsimile and by 1^st class mail.

Valencia R. Rainey

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

v. :

: CRIMINAL NO. 9x-434(HHK)

Larry xxxxxxxxxx :

Defendant. :

______________________________:

ORDER

Upon consideration of defendant's motion to suppress tangible evidence and request for evidentiary hearing and the entire record herein,

IT IS THIS ____ day of _________1999, ORDERED that the tangible evidence in this matter is hereby suppressed, and that an evidentiary hearing be held on _______ 1999.

IT IS SO ORDERED.

HENCY H. KENNEDY, JR.

UNITED STATES DISTRICT JUDGE

Copies:

Richard Dominguez, Esq.

Assistant United States Attorney

Valencia Rainey

Assistant Federal Public Defender