UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case No. 89-XXXXXXX

)

JOHN DOE, )

)

Defendant. )

_________________________________)

COMES NOW the Defendant, John Doe, by and through his attorney, Daniel E. Monnat of Monnat & Spurrier, Chartered, and moves the Court for an Order requiring the proper custodian of the Sedgwick County Emergency Communications Department, the Sedgwick County Sheriff's Office, the Wichita Police Department, the Drug Enforcement Administration and the United States Attorney's Office or such other custodian as may be applicable, to preserve until trial of the above-captioned case, any and all tape recordings of radio transmissions, dispatches and/or telephone calls in any way relating to the above-named Defendant, John Doe, or Mary Smith, both of whom were occupants of a vehicle stopped by law enforcement officers at approximately

4:00 a.m. on Friday, March 17, 1989, in the 4500

block of South Broadway, Wichita, Sedgwick County, Kansas. Said tape recordings of radio transmissions, dispatches and/or telephone calls commenced at a time previous to the detention of the vehicle occupied by the above named subjects and continued through and including Noon on Friday, March 17, 1989. (Approximate Radiogram Number ). For further specificity, see the Affidavit of James R. Jones, Narcotics Detective, Sedgwick County Sheriff's Office, attached hereto and incorporated herein by reference as if specifically set forth. Counsel further requests that the Court order the above-named entities or persons to allow defense counsel or his investigator the opportunity to listen to and copy said tape recordings at defense counsel's expense.

In support of this Motion, the Defendant alleges:

1. Counsel for the Defendant has determined that said tape recordings sought to be preserved are relevant to issues both on a motion to suppress and at trial and constitute Brady material, or, at a minimum, Jencks material. United States v. Florack, 155 F.R.D. 49, 55 fn. 2 (W.D.N.Y. 1994) (noting "no functional difference" between undercover investigation tapes constituting Jencks Act materials and dispatch tapes).

2. If the tape recordings are not preserved, the defense of this case will be prejudiced and severely hampered by foundational and other evidentiary difficulties which may result in the exclusion of relevant evidence.

3. It is the customary practice of the custodian of said tape recordings to destroy the same thirty days after the event recorded.

WHEREFORE, the Defendant prays that the Court enter an Order allowing defense counsel or his investigator to listen to and copy said tape recordings at his expense and requiring the preservation of the above-designated tape recordings in the above-captioned matter until trial of this matter.

Respectfully submitted,

___________________________________

DANIEL E. MONNAT, #09363

Attorney for Defendant

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