Free Motion for Reconsideration - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2737 4 CRAIG ORENT 5 State Bar # 015512 [email protected] 6 Asst. Federal Public Defender Attorney for Defendant 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 Mr. Reyes filed a motion to suppress evidence. The Court held an evidentiary 17 hearing on May 17, 2005. After counsel filed supplemental memorandums, the Court 18 distributed its ruling denying Mr. Reyes' motion. In part C, page 7, fnt. 2, of the 19 ruling, the Court concluded that defense counsel "is content to accept the 20 Government's facts as true for purposes of his Motion to Suppress, the Court will 21 resolve this motion on the basis of the Government's proffer." Mr. Reyes asserts that 22 he did not accept the government's proffer as true and thus objects to the Court's 23 conclusion and asks the Court to reconsider its ruling, and hold an additional 24 evidentiary hearing. 25 26 ARGUMENT In Mr. Reyes' initial pleading, defense counsel pointed out that "The vs. David Reyes, Defendant. United States of America, Plaintiff, No. CR04-1259-PHX-DGC DEFENDANT'S REQUEST FOR RECONSIDERATION OF HIS MOTION TO SUPPRESS

27 circumstances of Mr. Reyes' arrest are disclosed by the affidavit in support of the 28 complaint and department reports provided by the government." (Motion to Suppress,

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1 2:8-10). In a footnote to that statement, counsel then wrote "Defense counsel does not 2 affirm or stipulate to the accuracy of the alleged facts disclosed by these documents. 3 Rather they are outlined here to apprise the Court of the facts as alleged by law 4 enforcement and the pertinent issues." (Id. fnt. 1). 5 Based on the affidavit and department reports, defense counsel wrote that 6 "[t]he patrol officers detaining Mr. Reyes and the female driver were immediately 7 notified of the discovery in the house, and on orders from their superior officers, 8 approximately 10 minutes after their initial seizure, arrested both Mr. Reyes and the 9 female." (Id. 4:20-24) (emphasis added). The government's written response did not 10 dispute this statement. (Govt.'s Resp. To Def.'s Motion To Suppress, pp.2-3). In fact, 11 based on the apparent lack of factual dispute, defense counsel wrote in his reply that 12 "[i]t appears from the facts set out in the parties' pleadings that there is no factual 13 dispute. That being the case, Mr. Reyes is not requesting and evidentiary hearing on 14 his motion. Such a hearing is not necessary where there is no factual dispute, but the 15 Court may hold one at its discretion." (Def.'s Reply to Govt.'s Resp. to Def.'s Motion 16 to Supp., page 1, ftn. 1). 17 Defense counsel then filed a supplemental memorandum raising a new basis 18 for suppression (that the officers lacked reasonable suspicion to detain Mr. Reyes in 19 the first instance).(Defendant's Supplemental Memorandum in Support of His Motion 20 to Suppress). In that pleading defense counsel reiterated that Mr. Reyes was detained 21 for only 10 minutes or so before being arrested. (Id. 3:24-26, 4:13-15). The 22 government filed a written response. (See Govt.'s Resp. To Def.'s Supp. Memo. In 23 Support Of His Motion To Suppress). Again, the government did not dispute the 24 timing. (Id. 2-3). 25 27 28 2 The parties then appeared for the evidentiary hearing on May 17, 2005. Just 26 before the hearing the prosecutor informed defense counsel, for the first time, that he

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1 had learned that Mr. Reyes had in fact been detained for approximately 90 minutes, 2 not the 10 minutes that both counsel had believed to be accurate. The parties then 3 stipulated to this timing. As a result though, defense counsel asked the Court for 4 additional time to conduct research and if necessary for permission to file a 5 supplemental memorandum. The Court granted the requests. 6 On May 23, 2005, defense counsel filed a supplemental memorandum 7 challenging the legality of the 90 minute detention. (See Def.'s Second Supp. Memo. 8 In Support Of His Motion To Supp.). The government responded that the 90 minute 9 delay was reasonable because the officers had to prepare for entry into the suspect 10 home. (Govt.'s Resp. To Def.'s Second Supp. Memo. In Support Of His Motion To 11 Suppress, p.2). In doing so the government detailed the officers' activities before the 12 entry. (Id.). 13 Defense counsel filed a written reply. (See Def.'s Reply to Gov.'s Resp. To His 14 2nd Supp. Memo. To His Motion to Supp.). Counsel wrote, "[a]ssuming, without 15 conceding, that the government's factual allegations are accurate (no "evidence" on 16 this issue has been presented), the 90 minute detention still violated Mr. Reyes' 17 constitutional rights." (Id. 1:21-23) (emphasis in original). 18 It is this statement that is at issue now. The Court interpreted this statement as 19 a concession by defense counsel for purposes of deciding the merits, rather than for 20 the sake of legal discussion assuming the purported facts could be proved by the 21 government. 22 It is axiomatic that warrantless seizures are presumed unconstitutional, and thus 23 the government has the burden of establishing the seizure's legality. Moreover, a 24 suppression hearing is an evidentiary hearing subject to the Federal Rules of 25 Evidence. See United States v. Brewer, 947 F.2d 404, 410 (9th Cir.1991). Therefore, 26 absent a stipulation, hearsay may not, depending on the circumstances, be admissible 27 28 3

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1 at a suppression hearing. Cf., United States v. Matlock, 415 U.S. 164, 173 (1974) 2 ("there should be no automatic rule against the reception of hearsay evidence in such 3 proceedings." (Id. at 175)). 4 Here defense counsel in his first reply brief noted the absence of a factual 5 dispute and indicated no evidentiary hearing was necessary. Notwithstanding, the 6 Court decided to hold an evidentiary hearing. At the hearing, the parties learned of 7 a new issue, which defense counsel briefed in his second supplemental memorandum. 8 This new issue necessitated resolution of factual issues that had not before been 9 addressed.1 This is especially true, given the circumstances leading up to the dispute: 10 i.e., where the parties were under the impression that the detention was only 10 11 minutes long; and the affidavit in support of the Complaint, and the police reports, 12 did not reveal a detention of 90 minutes or that the delay was necessitated by pre13 entry preparations. 14 The only reference, anywhere, to the reason for the delay was the prosecutor's 15 factual outline in his response brief. Defense counsel never stipulated to the purported 16 facts, nor did he concede them. In fact, he specifically wrote that he was not 17 conceding them and pointed out to the Court that evidence has yet to be presented on 18 the issue. Defense counsel merely assumed the claims were correct for purposes of 19 the legal argument he was making in the pleading, and he stated so quite clearly. This 20 is standard, every day, lawyering and argument; otherwise, counsel, on both sides, 21 would not be able to file briefs setting forth their respective positions before 22 evidentiary hearings. Moreover, defense counsel's statement that he assumed the facts 23 to be true, but was not conceding their accuracy, makes no sense in any context but 24 25 This was true to the extent the Court was inclined to reject defense counsel's 26 argument that a per se rule existed that any detention longer than 90 minutes was 27 unlawful. This was the Court's eventual ruling. 28 4
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1 the one presented here by defense counsel. That is, there is no logical reason for 2 counsel to concede the facts for the suppression motion, but reserve the right to 3 contest them in some other context; in what other context would or could they be 4 contested? 5 Defense counsel respectfully asserts that the Court misinterpreted the 6 circumstances and defense counsel's statement concerning his not conceding the 7 alleged facts. ("Assuming, without conceding, that the government's factual 8 allegations are accurate (no "evidence" on this issue has been presented), the 90 9 minute detention still violated Mr. Reyes' constitutional rights." (See supra.)). As a 10 result, Mr. Reyes respectfully requests the Court to reconsider its ruling, and hold an 11 evidentiary hearing concerning this issue.2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This request for an evidentiary hearing is not a concession on defense counsel's part that he had an affirmative duty to request such a hearing when he filed his second supplemental memorandum. However, given the present context of the case, and the Court's conclusions, defense counsel is merely stating that it is inappropriate to rely on factual allegations in the government's pleading, and instead, for the Court to rule against Mr. Reyes, the alleged facts, absent a stipulation, must be established at an evidentiary hearing. 5
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Respectfully submitted: August 11, 2005. JON M. SANDS Federal Public Defender s/ CRAIG ORENT CRAIG ORENT Asst. Federal Public Defender

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1 Copy of the foregoing electronically transmitted this 11th day of August, 2005, to: 2 EMORY HURLEY 3 Assistant U.S. Attorney Two Renaissance Square 4 40 N. Central, Suite 1200 Phoenix, Arizona 85004-4408 5 6 Copy Mailed to: 7 DAVID REYES Defendant 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 s/ CRAIG ORENT CRAIG ORENT

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