Free Reply to Response - District Court of Arizona - Arizona

LAW OFFICES OF MICHAEL J. BRESNEHAN, P.C.
Michael J. Bresnehan, Esquire 1761 E. McNair Drive, Ste. 101 Tempe, Arizona 85283-5002 (480) 345-7032 [email protected] State Bar No.: 009415

Attorney for Defendant IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) TEDDY LEE LOWE, ) Defendant. ) ____________________________________) United States of America, No. CR-04-487-PHX-ROS REPLY TO GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS (AND ADDENDUM THERETO)

COMES NOW the defendant, by and through the undersigned attorney, and hereby files his reply to the government's response to the defendant's motion to suppress. RESPECTFULLY SUBMITTED this 16th day of August, 2005 by MICHAEL J. BRESNEHAN, P.C.

s/ Michael J. Bresnehan Michael J. Bresnehan Attorney for Defendant

Case 2:04-cr-00487-ROS

Document 105

Filed 08/16/2005

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MEMORANDUM OF POINTS AND AUTHORITIES In its responsive pleading, the government asserts that the defendant was placed under arrest, for felon in possession of a firearm, prior to the search of his vehicle. The government describes the search as an "inventory" search, rather than a search incident to defendant's arrest. The government asserts that the "inventory" search was occasioned by the decision of the Phoenix Police Department to confiscate defendant's vehicle pursuant to A.R.S. §13-3413 (civil forfeiture). The government further posits that the forfeiture of the vehicle without process was justified by the fact that a passenger in the defendant's vehicle, Lita Young, had drugs (methamphetamine) hidden in her purse. The government does not claim that the police/BATF were aware of any other facts prior to the search of the trunk connecting the defendant with Ms. Young's drugs. According to the BATF, Ms. Young acted surprised when the BATF agent found meth in a zipped pocket within her purse, as though she had forgotten it was there. She then emphatically claimed exclusive ownership of the meth. After Ms. Young acknowledged sole ownership of the meth, she informed the BATF agents that she had placed a hand gun under the driver's seat of the defendant's vehicle. She stated that it was still there, and that it belonged to her, exclusively. When asked, prior to the search of the trunk, whether either the defendant or Murphy had asked her to carry the drugs, she stated that she was "going to take the heat, the dope and gun are mine." She further claimed that Murphy, not Lowe, had purchased the rifle at the Jewel Box. Notwithstanding the absence of any evidence connecting the defendant to Young's drugs, the defendant's vehicle was reportedly seized by the Phoenix Police Department under the aforementioned forfeiture statutes, and an "inventory" search was conducted including a search of the trunk of the vehicle. 2 Case 2:04-cr-00487-ROS Document 105 Filed 08/16/2005 Page 2 of 4

Clearly, A.R.S. §13-4305(A)(3) did not provide the government with statutory authority to lawfully seize the defendant's vehicle. That section provides as follows: A. Property subject to forfeiture under this chapter may be seized for forfeiture by a peace officer: 1. On process issued pursuant to the rules of civil procedure or the provisions of this title including a seizure warrant. 2. By making a seizure for forfeiture on property seized on process issued pursuant to law, including §§13-3911 through 13-3915. 3. By making a seizure for forfeiture without court process if any of the following is true: (a) The seizure for forfeiture is of property seized incident to an arrest or search.

(b) The property subject to seizure for forfeiture has been the subject of a prior judgment in favor of this state or any other state or the federal government in a forfeiture proceeding. (c) The peace officer has probable cause to believe that the property is subject to forfeiture. The seizure was not incident to the arrest of the defendant - at least not according to BATF agent, William J. Medina. According to agent Medina, Phoenix P.D. Detective Murphy announced he was seizing the vehicle prior to the search of the trunk (under the forfeiture statutes) because the vehicle was allegedly used to transport drugs. To the extent that that was the legal rationale for the police/BATF seizing and searching the vehicle, those acts were not supported by probable cause, and thus, were unlawful. Probable cause must be supported by more than a mere suspicion. Matter of 1986 Chevrolet Corvette, 183 Ariz. 637,640,905 P.2d 1372 (1994). To the extent that the search was undertaken as incident to a lawful arrest, the search of the trunk was, likewise, unlawful. The police/BATF did not have probable cause to arrest the defendant prior to the search of the trunk. Even if the police/BATF did have probable cause to arrest the defendant (i.e., through the statements of Murphy to the BATF agents) prior to 3 Case 2:04-cr-00487-ROS Document 105 Filed 08/16/2005 Page 3 of 4

the search of the trunk, that probable cause did not permit a search into the trunk. U.S. v. Blaze, 143 F.3d 585 (C.A. 10 1998). Nor did the police/BATF have probable cause to believe there was contraband in the trunk of the vehicle prior to the search of the trunk, as Murphy's statements to the police regarding the purchase of the rifle occurred after the search of the trunk. Until Murphy informed the police that he purchased the rifle for the defendant there was no probable cause to believe the rifle was contraband, or that the defendant had committed a crime. WHEREFORE, for the above-stated reasons, the defendant moves this Court to suppress all items found by the police in the trunk of his vehicle. RESPECTFULLY SUBMITTED this 16th day of August, 2005 by MICHAEL J. BRESNEHAN, P.C. s/ Michael Bresnehan__________________________ Michael J. Bresnehan Attorney for Defendant Copy of the foregoing delivered this 16th day of August, 2005, to: Bill Solomon, Esq. Assistant U.S. Attorney Two Renaissance Square 40 N. Central, Suite 1200 Phoenix, Arizona 85004-4408 Lisa Maxie-Mulllins Arizona Attorney General's Office 1275 West Washington St. Phoenix, AZ 85007-2926 Teddy Lee Lowe Defendant By s/ Michael J. Bresnehan

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