John M. Murtagh
1101 W. 7th Avenue
Anchorage, Alaska 99501
Attorney for
IN THE UNITED STATES DISTRICT COURT
FOR THE STATE OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No.
xxxxxxxxxxxxxxxxxxxxxxx,
Defendant.
DEFENDANT'S MOTION TO SUPPRESS
AND FOR EVIDENTIARY HEARING BASED ON
IMPROPER FRISK, SEARCHES AND INTERROGATIONS
Defendant, xxxxxxxx, through counsel, John M. Murtagh, moves
to suppress all evidence seized and all statements made based on the followinggrounds:
1. There were no reasonable grounds or probable cause for police to knock on Mr. xxxxxxxx's car window, order him to roll it down, question him as to his lawfully parked presence, and order him to produce identification under the 4th Amendment to the United States Constitution and Article 1 Sections 14 and 22 of Alaska's Constitution.
2. There were no grounds or probable cause for police to order him to open his door and get out of his car under the 4th Amendment to the United States Constitution and Article 1 Sections 14 and 22 of Alaska's Constitution.
3. There were no reasonable grounds or probable cause for the police to; (1) pat down Mr. xxxxxxxx; (2) seize a leatherman tool; (3) search and open a fanny pack; and (4) seize and open four envelopes found in his coat; all without a warrant contrary to the 4th Amendment to the United States Constitution and Article 1 Sections 14 and 22 of Alaska's Constitution.
4. Police questioning of Mr. xxxxxxxx as to a leatherman tool, fanny pack, weapon and envelopes and drugs was all custodial interrogation without Miranda warnings contrary to the 5th Amendment of the United States Constitution and Article 1 Sections 7 and 1 1 of Alaska's Constitution.
5. There was no probable cause to tow and search Mr. xxxxxxxx's car and the warrant to search his car was invalid and contrary to the 4th Amendment to the United States Constitution and Article 1 Sections 14 and 22 of Alaska's Constitution.
Based on the above grounds, all evidence seized from Mr. xxxxxxxx's person, pack, clothes or car must be suppressed and all statements by Mr. xxxxxxxx and all evidence seized as a result of his statements must be suppressed.
Mr. xxxxxxxx requests an evidentiary hearing to resolve the above issues and reserves the right to amend this motion based on continued discovery or evidence presented at the evidentiary hearing.
This motion and the necessity of an evidentiary hearing are supported by the attached memoranda of law.
Excludable delay, pursuant to 18 U.S.C. 3161, will result due to the filing of this motion.
RESPECTFULLY submitted this __ day of March, 1997.
IN THE UNITED STATES DISTRICT COURT
FOR THE STATE OF ALASKA AT ANCHORAGE
UNITED STATES OF AMERICA,
Plaintiff,
VS. Case No. A97-015 Cr. (JWS)
DONALD xxxxxxxx,
Defendant.
DEFENDANT"S MEMORANDA
SUPPORTING MOTION TO SUPPRESS
AND FOR HEARING BASED ON IMPROPER
FRISK, SEARCHES AND INTERROGATIONS
I. STATEMENT OF THE FACTS
While a full statement of facts must await the requested evidentiary hearing, the police
report of Anchorage Police Officer Kirkley sets the table for
Mr. xxxxxxxx's motions to suppress.
Officer Kirkley's police report indicates that on Monday February 10, 1997, at 1:53 P.M. Officer Kirkley went to xx West 5 gh in Anchorage -in response to a dispatch report that a man was snoozing in a parked car. [Rpt.at 1] Officer Kirkley found Mr. xxxxxxxx "'nodding off" in the driver"s seat of his parked Oldsmobile, which was lawfully parked in a strip mall commercial parking lot. [Rpt. at 1]
Officer Kirkley contacted Mr. xxxxxxxx in his car, ordered him to roll down his window and asked Mr. xxxxxxxx what he was doing.
Officer Kirkley then ordered Mr. xxxxxxxx to produce identification. [Rpt. at 1] While Mr. xxxxxxxx reached in his brief case to get identification, Officer Kirkley saw a small leather man tool holder on Mr. xxxxxxxx's belt. A leather man tool is like a Swiss army knife, containing multiple tools like screw drivers, scissors, etc.
In response, Officer Kirkley drew his gun and ordered Mr. xxxxxxxx to place his hands on the steering wheel. The officer searched Mr. xxxxxxxx and learned that the object of concern was in fact a leatherman tool and holder. Despite this, Officer Kirkley continued to search Mr. xxxxxxxx further. [Rpt. at 1] Officer Kirkley first discovered a fanny pack on Mr. xxxxxxxx's waist and searching the outside felt a hard object inside. Officer Kirkley told the State Magistrate that this was because fanny packs (belly bags) commonly contain identification, money, or drugs. He asked Mr. xxxxxxxx if the pack contained a gun. According to Officer Kirkley, Mr. xxxxxxxx admitted it contained a gun. Officer Kirkley handcuffed Mr. xxxxxxxx, then opened the pack and removed a .38 pistol from the fanny pack. [Rpt. at 1]
Officer Kirkley continued to search Mr. xxxxxxxx. [Rpt. at 2] He searched inside his jacket pockets and discovered two small envelopes. Officer Kirkley removed the envelopes, opened them and concluded the contents looked like heroin and cocaine. [Rpt. at 2] Officer Kirkley continued to search Mr. xxxxxxxx's jacket, feeling a "large oblong object" in the lower edge of a pocket. [Rpt. at 2] According to Office Kirkley he asked Mr. xxxxxxxx if the larger packet was more drugs and Mr. xxxxxxxx "nodded yes."[Rpt. at 2] Officer Kirkley reached inside a tear in the jacket pocket and removed two more white envelopes from the jacket lining. He opened them and inside found sandwich bags which Officer Kirkley thought contained heroin and cocaine. Officer Kirkley asked Mr. xxxxxxxx if he had any needles and Mr. xxxxxxxx responded he had only been smoking drugs. [Rpt. at 2]
Backup was called and field tests were positive. Mr. xxxxxxxx was transported to the Anchorage Police Department and his car impounded and towed to the Anchorage Police Department. Mr. xxxxxxxx was brought before a state Magistrate for controlled substance and weapons, and bail was set and posted. [Rpt. at 3] A warrant was obtained to search the car which resulted in seizure of 5 lbs of cocaine and 4 ounces of heroin. [Rpt. at 8] State police contacted federal authorities and several days later federal agents decided to bring federal charges. [Rpt. at 9,11]
II. ARGUMENTS'
1. STOP & ORDERS TO EXPLAIN PRESENCE & SHOW ID.
The initial contact and questioning of Mr. xxxxxxxx and order to produce identification violated the 4th amendment absent reasonable grounds. It is well established that even minimal detentions under the Fourth Amendment require reasonable grounds. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); Brown v. Texas 443 U.S. 47, 99 S.Ct. 2637; 61 L.Ed 2d 357 (1979); U.S. v Brignoni-Ponce 422 U.S. 873; 95 S.Ct. 2574, 45 L.Ed 2d 607 (1975); Terry v. Ohio 392 U.S. 1; 88 S.Ct. 1869 (1989); Sibron v. New York 392 U.S. 40; 88 S.Ct. 1889 (1968); U.S. v. Thomas 863 F. 2d 622 (9th Cir. 1988); U.S. v. Hernandez- Alverado 891 F. 2d 1414 (92 F.3d Cir. 1989); Easyriders Freedom F.I.G.H.T. v. Hannigan 92 F.3d 1486 at 1496 (9th Cir. 1996).
In Delaware v. Prouse, supra the Supreme Court held that stopping vehicles to check registration or ask for identification violated the 4th amendment absent reasonable grounds or probable cause.
____________________
It may be that issues as to the applicability of Alaska state law will arise due to the testimony at the evidentlary hearing. That argument is reserved until the post hearing briefing.Under the above cases and rationales, Mr, xxxxxxxx's conduct of taking a nap in his lawfully parked car is all to common and indicative of innocent conduct to permit investigatory stops and detentions.
Other 9th Circuit cases agree that observations consistent with innocent conduct is not reasonable grounds to justify even short contacts or questioning under the 4t' Amendment. U.S. v Brignoni-Ponce, supra; U.S. v. HernandezAlvarado 891 F.2d 1414 (9th Cir 1989); U.S. v. Carrizoza-Gaxiola 523 F. 2d 239 (9th Cir. 1975); Nicacio v United States I.N.S. 797 F.2d 700 (9th Cir. 1985).
Under the above law there were no objective facts suggesting xxxxxxxx was engaged in criminal acts or that a crime had even occurred. The sole fact that Mr. xxxxxxxx was napping in his lawfully parked car does not suggest criminal activity. Nothing Justified contacting, detaining and questioning Mr. xxxxxxxx nor ordering him to produce identification. As a result, all of the evidence seized from the later detention, search and detention of Mr. xxxxxxxx and his car must be suppressed.
2. REMOVAL OF MR. xxxxxxxx FROM CAR, FRISK & SEARCH
Even assuming arguendo the initial contact and detention of Mr. xxxxxxxx was somehow valid, removing Mr. xxxxxxxx from his car and searching him was not. Terry v. Ohio, 392 U.S. 1; 88 S.Ct. 1869 (1989); Sibron v New York 392 U.S. 40; 88 S.Ct. 1889 (1968); U.S. v. Thomas 863 F.2d 622 (9th Cir. 1988); U.S. v. Ramirez- Sandoval 872 F. 2d 1392 (9th Cir. 1989).
The Ninth Circuit has made it clear that reasonable grounds for a minimal detention will not automatically Justify continued questioning or frisking.
Thomas, supra, United States v. Ramirez-Sandoval, 872 F.2d 1392, 1397 (9th Cir. 1989).
Under the above there was no safety threat to justify removing Mr. xxxxxxxx from his car and searching him for weapons. Mr. xxxxxxxx was cooperative. There was no report of a crime let alone violent one. Even when Officer Kirkley saw the leather man holder Mr. xxxxxxxx was seated and there was nothing unlawful or threatening about a tool holder. The officer's concern about this leather object was resolved, favorably to Mr. xxxxxxxx, when Officer Kirkley took the leatherman tool into his possession. Any apprehension, however unreasonable, would have been relieved. Nothing Justified removing Mr. xxxxxxxx from his car and searching him for weapons once the officer possessed the tool.
3. SEIZURE & OPENING OF ENVELOPES
Even assuming arguendo that Officer Kirkley could remove Mr. xxxxxxxx from the car and frisk him there were no valid grounds for the seizure and opening of the envelopes containing cocaine or heroin.
When Officer Kirkley patted down Mr. xxxxxxxx, the small envelopes were neither the size nor the shape of a gun or weapon. Officer Kirkley thus had no grounds to remove the envelopes from Mr. xxxxxxxx's 'acket in the first instance. Moreover, once Officer Kirkley removed the four envelopes he could clearly see they were not weapons. He thus had no grounds to open the envelopes.
Thus both the seizure and the opening of the four envelopes exceeded the limited scope of a quick frisk permitted under a Terry stop and violated the 4th Amendment under the cases cited above. Terry v. Ohio 392 U.S. 1; 88 S.Ct. 1869 (1989); Sibron v New York 392 U.S. 40; 88 S.Ct. 1889 (1968); U.S. v. Thomas 863 F. 2d 622 (9th Cir. 1988); U.S. v. Ramirez- Sandoval 872 F. 2d 1392 (9th Cir. 1989).
4. CUSTODIAL INTERROGATION.
Facts at a hearing will establish Mr. xxxxxxxx was not given Miranda warnings until he was taken to the station and that as soon as they were given, he asserted his right to remain silent. From the time Officer Kirkley drew his weapon, he was in custody. Hence all interrogation of Mr. xxxxxxxx as to his fanny pack, weapons, coat, envelopes or drugs before he was given his Miranda warnings violated the 5th Amendment. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at 444, 86 S.Ct. at 1612; Berkemer v. McCarty., 468 U.S. 420, 435-42,104 S.Ct. 3138, 3147-52, 82 L.Ed.2d 317 (1984). Searches and seizures developing from these statements must be suppressed as fruits of the illegal custodial interrogation.
Custodial interrogation, was defined in Miranda to include "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. At the point where Mr. xxxxxxxx was removed from the car at gun point, and was being frisked no reasonable person would feel free to leave or ignore police commands.
Although the Supreme Court has held routine traffic stops are not sufficiently "'custodial" to require Miranda warnings. Berkemer v. McCarm 468 U.S. 420, 435-42, 104 S.Ct. 3138, 3147-52, 82 L.Ed.2d 317 (1984), the detention of Mr. xxxxxxxx went beyond a routine traffic stop of brief questions or a ticket and Miranda applies.
Based on the above law it is submitted that all statements made by Mr. xxxxxxxx, once placed at gun point, and before he was given Miranda warnings must be suppressed.
5. Tow, Warrant & Search of Mr. xxxxxxxx's Car.
Since Mr. xxxxxxxx has not yet obtained discovery of the state search warrant
proceedings, he must reserves the right to address any errors in the warrant or search of
his vehicle as well as factual allegations in the warrant proceeding to the extent they
vary from the police reports.
6. RIGHT TO EVIDENTIARY HEARING
This case involves a warrantless detention, frisk and search and arrest. It is thus the government's burden to Justify the intrusions and a hearing is required so the arresting officer can be cross examined as to his grounds for detaining, questioning and searching Mr. xxxxxxxx. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986); Center Art Galleries - Hawaii Inc v. U.S., 875 F.2d 747 (9th Cir. 1989) ; U.S. v. Thomas 863 F.2d 622, 623 -624 (9th Cir. 1988) (facts at hearing relied on for suppression); U.S. v. Batiste 868 F.2d 1089 (9th Cir. 1989); U.S. v. Remsing 874 F.2d 614 (9th Cir 1989).
In Center Art Galleries - Hawaii Inc v. U.S., supra the 9th Circuit held that a hearing must be held on suppression issues if there are contested facts holding;
We review a decision not to hold an evidentlary hearing on a motion to suppress for abuse of discretion. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986); see also United States v. Batiste, 868 F.2d 1089, 1091-92 (9th Cir.1989). An evidentiary hearing is generally required "if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue." Walczak, 783 F.2d at 857.
Center Art Galleries sulpra at 754. The 9th Circuit in Center Art Galleries sulpra held the government had failed to make any showing at trial or on appeal as to what they intended to prove and that it was difficult to imagine facts that could establish good faith for executing a "patently overbroad warrant." Id at 754 n. 3
7. CONCLUSION
This court should order an evidentiary hearing to establish the facts surrounding the stop, detention, questioning and search of Mr. xxxxxxxx and his car. After the hearing, Mr. xxxxxxxx should be permitted to prepare transcripts and file briefs based on the testimony presented.
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