Free Motion for Hearing on Motion - 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 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 MOTION FOR ACCELERATED HEARING/RULING ON MOTION TO QUASH SUBPOENA

COMES NOW the defendant, by and through the undersigned attorney, and hereby moves this Court for an accelerated hearing and ruling on the State of Arizona's motion to quash this Court's subpoena duces tecum, all for the reasons set forth in the accompanying memorandum of points and authorities. It is not expected that excludable delay under Title 8 U.S.C. §3161(h)(1)(F) will occur as a result of this motion or from an order based thereon. RESPECTFULLY SUBMITTED this 15th 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 103

Filed 08/15/2005

Page 1 of 3

MEMORANDUM OF POINTS AND AUTHORITIES On November 22, 2004, the defendant applied for a subpoena duces tecum for certain records thought to be in the possession of the Arizona Department of Public Safety. Specifically, the defendant sought the following: Any and all log searches for April 15, 2004 of Arizona temporary license TP7830, a 1998 Buick passenger car. In addition, any and all records documenting any query by the Phoenix Police Department on April 15, 2004 for information related to the driver license status of Teddy Lee Lowe, DOB: 7/19/67. The purpose of the subpoena was to allow the defendant to determine whether the BATF agents who were surveilling the defendant's automobile on April 15, 2004 in fact "ran" his temporary license plate, and thereby determined that it belonged to him. The occupants in that vehicle were seen by BATF agents engaging in a gun purchase at The Jewel Box (pawn shop) in Phoenix, Arizona. The State of Arizona filed a motion to quash the subpoena, arguing that the desired information was statutorily unavailable to the defendant. The government contends that the BATF, with the aid of local police, had reasonable grounds to temporarily detain and question the defendant regarding a gun purchase that BATF agents had just witnessed, based, in part, on their alleged confirmation through a MVD records check, that the defendant was the owner of the surveiled vehicle, and that the defendant was a convicted felon (and prohibited possessor). The defendant has filed a motion to suppress certain evidence found in the surveilled vehicle after the local police, at the request of the BATF, detained the defendant, and eventually searched his vehicle. The hearing on that motion is scheduled for August 30, 2005. Thus, the information requested through the aforementioned subpoena could prove to be both relevant and material to the issue of whether the BATF, with the aid of local police, had

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reasonable grounds to effect a "Terry" stop, and, correlatively, whether the subsequent search of the defendant's vehicle was lawful. WHEREFORE, the defendant moves this Court to schedule a hearing on the State of Arizona's motion to quash the subpoena as early as is practicable, so as to allow time for the State of Arizona to produce the requested information prior to the August 30, 2005 hearing should the Court deny the motion to quash. RESPECTFULLY SUBMITTED this 15th day of August, 2005 by MICHAEL J. BRESNEHAN, P.C.

___________________________ Michael J. Bresnehan Attorney for Defendant Copy of the foregoing delivered this 15th 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_ ___________________________

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