UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
Plaintiff, :
v. : CRIMINAL NO.: 9x-288(GK)
:
xxxxxxxxxxxxxxx, :
:
Defendant. :
________________________________:
DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE
AND INCORPORATED MEMORANDUM IN SUPPORT THEREOF
AND REQUEST FOR EVIDENTIARY HEARING
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. xxxxxxxxxx requests an evidentiary hearing on this motion.
As grounds for this Motion, Mr. xxxxxxxxxx states:
1. He is charged by indictment with two counts of violation of 18 U.S.C. Sec. 922(g), unlawful possession of a firearm by a convicted felon, and unlawful possession of ammunition by a convicted felon.
2. On August 1, 1998, police officers from the Seventh District conducted a traffic stop at the 3700 block of Wheeler Road, in Southeast Washington, D.C. Although there is no evidence that this traffic stop was precipitated by any motor vehicle violation, or other reason, the driver of the car in which Mr. xxxxxxxxxx was a passenger came to a stop upon request by police.
3. According to the government, when the vehicle stopped, Mr. xxxxxxxxxx exited the car and started to run. One of the police officers ran after him, and alleged in his complaint that, while he was running, Mr. xxxxxxxxxx reached into his waistband and threw an object on the ground.
4. Mr. xxxxxxxxxx was stopped, and the police officer alleged in the complaint that he retrieved a handgun from the location in which he claims Mr. xxxxxxxxxx threw an object.
5. Mr. xxxxxxxxxx was arrested and searched without a warrant. A subsequent records check revealed that he had been convicted of a felony.
6. 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).
7. 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.
8. To make a lawful arrest--the "quintessential 'seizure of the
person' under our Fourth Amendment jurisprudence," id. at 1550--police must
have probable cause to believe that a person has committed or is committing an offense, see
Beck v. Ohio, 379 U.S. 89, 91 (1964). To conduct an investigative detention,
the police need reasonable, articulable suspicion. See Terry v. Ohio,
392 U.S. 1, 21 (1968).
9. Because the officers arrested Mr. xxxxxxxxxx without a warrant, the prosecution bears the burden of proving probable cause for the arrest. See Beck v. Ohio, 379 U.S. at 91. The prosecution must establish that the facts and circumstances known to the officers at the time they seized Mr. xxxxxxxxxx justified that seizure and any search. United States v. Jenkins, 530 F. Supp. 8, 10 (D.D.C. 1981).
10. Mr. xxxxxxxxxx anticipates that evidence adduced at an evidentiary hearing on this Motion will demonstrate that--contrary to the Criminal Complaint--officers arrested Mr. xxxxxxxxxx without information "sufficient to warrant a prudent man in believing that [xxxxxxxxxx] had committed or was committing an offense." Beck v. Ohio, 379 U.S. at 91. 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, John xxxxxxxxxx, 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 September, 1998, a copy of the foregoing Motion to Suppress Physical Evidence and Incorporated Memorandum of Points and Authorities And Request For Evidentiary Hearing, has been served upon Amy J. Conway, 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
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
Plaintiff, :
v. : CRIMINAL NO.: 98-288(GK)
:
xx x xxxxxxxxxx, :
:
Defendant. :
________________________________:
ORDER
Upon consideration of defendant's Motion to Suppress Tangible Evidence and Incorporated Memorandum of Points and Authorities, and Request for Evidentiary Hearing, it is this__________day of __________, 1998, hereby
ORDERED that defendant xxxxxx' Motion is granted; and it is further
ORDERED that the evidence seized as the result of the unlawful arrest and any fruit thereof be suppressed.
________________________________
GLADYS KESSLER
UNITED STATES DISTRICT JUDGE
Copies to:
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W. Suite 550
Washington, D.C. 20004
Amy J. Conway
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001