Free Transcript - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ ) ) Plaintiff, ) ) vs. ) ) JOHN DAVID JOHNSON WHITE, ) ) Defendant. ) ) ______________________________) UNITED STATES OF AMERICA, BEFORE:

CR 06-1073-PHX-FJM CR 03-0550-PHX-FJM Phoenix, Arizona November 6, 2007 8:36 a.m.

THE HONORABLE FREDERICK J. MARTONE, JUDGE

REPORTER'S EXCERPTED TRANSCRIPT OF PROCEEDINGS PRETRIAL MOTIONS

APPEARANCES: For the Government: U.S. Attorney's Office By: MICHAEL ALLEN LEE, ESQ. 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 For the Defendant White: Law Office of Robert J. Kavanagh By: ROBERT J. KAVANAGH, ESQ. 51 West Elliott Road, Suite 109 Tempe, AZ 85284 Official Court Reporter: Linda Schroeder, RDR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc. 32 Phoenix, Arizona 85003-2151 (602) 322-7249 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

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HERNANDEZ, Rafael WITNESSES FOR THE GOVERNMENT: Direct 10 61 Direct 67 Cross 18 63 Cross 68 Redirect 33 Redirect INDEX OF WITNESSES

5 6 7
WHITE, John

WITNESSES FOR THE
DEFENDANT:

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT
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EXHIBIT NO.: DESCRIPTION: ID'D: RECEIVED: INDEX OF EXHIBITS

98
99

MCSO Incident Report 06-61030
Aerial View of Crime Scene with

19 20 21

Street Names

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceedings in open court outside presence of prospective jury panelists:) THE CLERK: This is criminal matter 06-1073

United States versus John White, on for motion hearing. Counsel, please announce. MR. LEE: Good morning, Your Honor. Michael Lee here

on behalf of the United States. THE COURT: Welcome. Good morning, Judge. Robert Kavanagh

MR. KAVANAGH:

for Mr. John White, who is present in custody, and we're ready to proceed. THE COURT: Welcome.

Let me tell you what I've read in connection with the motions, and then you can tell me what remains to be decided and what is uncontested. I've got the defendant's motion to suppress all evidence, which is docket item number 39, claiming there was no reasonable suspicion, that there was an illegal search. I've got the defendant's motion to suppress the defendant's statements, which is docket item number 40, claiming that there was custodial interrogation and no Miranda warnings. And I've got the government's response to each of these motions contending there was indeed reasonable suspicion, that most of the statements were not the product of UNITED STATES DISTRICT COURT
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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues. interrogation but simply the defendant's unsolicited statements to the officers, or there seems to be a concession that some of the post-dispatch communication statements might have been in the nature of interrogation. And then I've read the defendant's reply. And then I also have the defendant's motion in limine, which is docket item number 41, which I think the last time you told me you were going to resolve this one among yourselves. So tell me what the status of the motions are and what is contested and what is uncontested. Mr. Kavanagh. MR. KAVANAGH: is still contested. still contested. Judge, the motion to suppress evidence

The motion to suppress the statements is

The motion in limine, I believe the

government agrees that for the purpose of the indictment, the redacted indictment, they will take out, which they did, any reference to the type of crime it was, the nature and so forth previously -THE COURT: And you've read their statement of the

case and their standard instruction, and it's an acceptable version of it for you? MR. KAVANAGH: THE COURT: Yes, Your Honor.

All right. The motion in limine had two other

MR. KAVANAGH:

One was reference gang, any reference to gang UNITED STATES DISTRICT COURT

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 activity. I think the government is not going to do that. I

believe that's resolved. case. If I'm wrong -THE COURT: MR. LEE:

I don't think that's an issue in the

Mr. Lee, is that right? On point two of his motion, there's --

Yes.

we are not going to bring up any gang association or gang activity. It's just not relevant to this case. All right. And then the third point was the facts I don't

THE COURT:

MR. KAVANAGH:

surrounding Mr. White's arrest on December 13, 2006.

think any evidence came out of that regarding this case, so I don't think that that's relevant either. not to allow any mention of that. THE COURT: I would ask the Court

He was arrested --

Two days before this event. December 13, 2006. No.

MR. KAVANAGH:

He got arrested by indictment.

A warrant was issued

several months later by the ATF agents, and he was arrested at his house, his mother's house. And ATF wrote a report about

that, but I don't think there's any relevance to what happened that day to what happened several months earlier at the nightclub. THE COURT: MR. LEE: I see. Mr. Lee?

We told the defendant that we don't believe

that that's necessarily information that we'd utilize in our opening. The only type of information -- It may only have UNITED STATES DISTRICT COURT
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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible help towards bias with any defense witnesses who may have been present at the time because of what occurred in there. I saw the defense list of witnesses. There's only two

people I believe that actually made statements at the arrest. It was the defendant's mother and the defendant himself. not listed as a witness, so that's not an issue. only if the defendant testifies. She's

It would be

He had a very combative

nature what was occurring there that possibly could be relevant towards -- for impeachment purposes. THE COURT: Tell me what was the timing of this

December 13 arrest, and what if any relationship did it have to this case? MR. LEE: The December 13th arrest was based on the

warrant that arose from the federal indictment for the defendant's behavior back on April 15th of 2006. There was

just a time lag between when the defendant's case was being processed by MCSO till we learned that there was this potential violation through the defendant's probation officer. THE COURT: MR. LEE: I see.

So we -So he was released on the original

THE COURT:

charges, the original state arrest? MR. LEE: That's correct. I see. But this was for the same offense

THE COURT:

but pursuant to the federal indictment? UNITED STATES DISTRICT COURT
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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 moment? Mr. Lee mentioned that under 609, if Mr. White takes the stand, he's going to impeach him fully with the prior felony. And I would object to that. I think that there needs MR. LEE: That's correct. I see.

THE COURT: MR. LEE:

And also, Your Honor, just to be clear with

defendant's first paragraph of the motion in limine, we agree that for the opening statement, case in chief, and cross-examination, that, under the Old Chief case, that there is no need to mention the name or nature of the defendant's felony. But if the defendant determines to take the stand, under our Rule 609, for impeachment purposes, we intend to introduce the name and nature of the felony. THE COURT: I understand.

Then, Mr. Kavanagh, what's -- I think the defendant's motion in limine, docket item number 41, has been resolved by way of the parties' resolution and should be denied on grounds of mootness. Then what remains in terms of contested facts? What

do we need to hear between now and 9:00 in connection with the two other motions? MR. KAVANAGH: Judge, if I can backtrack just a

to be a balancing.

And I think the Court should do a

UNITED STATES DISTRICT COURT
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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one. balancing, and I believe the result should be in favor of Mr. White. The prior conviction is for a firearms offense. If

the jury hears that, we might as well just go home, because we're going to lose. And I did find one case last night, and

there may be more, but kind of talks about this very issue where the Court needs to do that and try to prevent any undue prejudice to Mr. White. And I think the same theory under the Old Chief case should apply as well as 609, and it seems to say that. The

case I brought with me, which I can certainly give the Court and Mr. Lee, it's United States versus Jimenez. 1095, Ninth Circuit, 2000. So I do think we need to at least address that issue, And the other issue that you just raised, Judge, I think It's 214 F.3d

the only reason why we would need a hearing reference the motion to suppress the evidence would be if the Court takes into consideration the facts that Mr. Lee wrote in his motion regarding what this deputy knew prior to stopping my client. And some of those facts are a little different than what's in the police report. So if the Court disregards those facts and just goes with the police report, then I don't really think we need a hearing on those issues. THE COURT: Well, it's, from what you say, then, it

UNITED STATES DISTRICT COURT
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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sounds like we need the hearing. I mean, I'm not going to

disregard parties' contentions as to what the evidence would show if it's relevant. MR. KAVANAGH: But I think I need to ask the deputy a

few questions about that if he testifies to it. MR. LEE: this issue. Your Honor, I discussed with defense counsel

I believe -- and I don't want to put words in his

mouth -- but I believe what his concerns were is that the deputy did not indicate in his report the nature of the area that he worked in and not necessarily that this entire area near Metrocenter was a high crime area but that the area surrounding the club, because they had three deputies there because they have all sorts of issues with various club-related issues that occur within the parking lot, patrons coming in and out and others. And the deputy, as we indicated in our motion,

would testify to the Court regarding why they needed three deputies there, because of the nature of the events that were occurring. concern. And I believe that's what you -- what was your

Was there any other concern that I need to have him

testify to? MR. KAVANAGH: Well, Judge, and the number of events, The

the amount of shootings that this deputy is aware of.

location of these shootings is different in the motion that the government filed versus the officer's police report. few discrepancies. But I think they're important So just a

UNITED STATES DISTRICT COURT
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BY MR. LEE:

discrepancies. So Mr. Lee is correct. they're significant. THE COURT: Well, I'll hear you on it. So then, It is fairly narrow, but

Mr. Lee, you're welcome to call your first witness. MR. LEE: Thank you, Your Honor. We call

Officer Hernandez to the stand. THE CLERK: If you could state your name for the

record and spell it please. THE WITNESS: My name is Rafael J. Hernandez. That's

R-a-f-a-e-l, middle initial J, last name H-e-r-n-a-n-d-e-z.
RAFAEL J. HERNANDEZ, GOVERNMENT'S WITNESS, SWORN

MR. LEE:

Your Honor, it's the government's intention But if we're being too

to be brief, to focus on the issues.

brief, please let us know if the Court needs further information. THE COURT: Thank you.
DIRECT EXAMINATION

Q

Officer Hernandez, can you please give us your full name,

spelling your last name for the record. A It's Rafael J. Hernandez. Spelling first name is Last name is

R-a-f-a-e-l.

Middle initial J.

H-e-r-n-a-n-d-e-z. Q And what is your badge number? UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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A Q A Q

Badge number -- Actually do you mean my serial number? Yes. My serial number is 1158. Thank you. How long have you worked for the Maricopa County

Sheriff's Office? A Been with Maricopa County Sheriff's Office since October of

1996. Q A Q A Q A Q Is that approximately 11 years, sir? Yes, sir. Prior to that, who have you worked with? Prior to that I worked with the United Parcel Service. And for how long had you worked for them? I was there 19 years. And have you had any other employment during this time

period? A Well, prior to United Parcel Service, I was with the Marine And after getting out of the Marine Corps, I stayed in

Corps.

the Reserve for 15 years. Q A Q A Q Did you serve in Operation Desert Storm? Yes, sir. Were you deployed in the Middle East in that capacity? Yes, sir. Now, on the late evening of April 14th, early morning hours

of April 15th, 2006, were you located at the Blaze nightclub at UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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2740 North Lane in Phoenix, the District of Arizona? A Q A Q A Q Yes, sir. Who was with you at that time? It was Deputy Dietrich and a Deputy Gagnon. Were you working in an official off-duty capacity? Yes, sir. I was a deputy sheriff.

This was work that was approved by your office; is that

correct? A Q A Q A Q Correct, yes, sir. Were you in uniform and armed? Yes, sir. And were the other deputies in uniform and armed? Correct. Would you please explain to the Court how long you had

worked off duty at this particular club prior to this incident. A I'm not sure exact time, but I'd say approximately about a

year, maybe a little more. Q And when you say a year, did you work every weekend, every What was your type of frequency that you would

other weekend?

work during that year's time period at this club? A Work every other weekend. I used to work Fridays and

Saturdays. Q A Q Did you work inside security or outside? No. We always worked outside security.

Can you please explain to the Court how that worked. UNITED STATES DISTRICT COURT

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HERNANDEZ - DIRECT

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A

Sir, the club has their own security people that work We're not allowed to work inside the establishment We just strictly are

inside.

because it's alcohol that's served. outside the front door.

And if anything happens inside the

club, security people would bring them out, and at that point we just go ahead and deal with the problem. Q Now, this is a Friday night that this incident occurred, Can you please explain to the Court

early Saturday morning.

why there were three MCSOs working off-duty at that location. A Yes, sir. When I first started working there, I was told

that Friday nights we always have three officers as opposed to the two on Saturday, mainly being because the Friday night crowd is a little bit younger crowd, so it's a little rowdier. We have a few more problems. Q Can you please explain to the Court what you mean by

problems. A By problems, I just mean there will be fights every once in It's just a

awhile inside the club, people getting thrown out. little rowdier crowd. Q

And what issues have you had to deal with in the parking

lot during your time as you have worked off-duty there? A Issues that we've run across is we run across assaults of We've had people -- We I can't

other individuals in the parking lot.

have found actually drugs on people or in vehicles. say we've found any on individuals. UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

14 And in the time

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Domestic disputes between couples.

that I've been there, we've had some people shooting off guns in the back parking lot in the vicinity of the neighborhood of the club. Q Now, just so the Court can get a basic idea of the layout

of the club itself or the surroundings there of the club, the major cross streets of this club are what? A Where this club is at is going to be 27th Drive and Peoria,

between Peoria and North Lane. Q Surrounding the club itself, is there a parking that's for

the club? A Q Yes, sir. Northwest of the club itself, is there an abandoned

business that also has parking around it? A Q A Q Correct. It's an abandoned Big & Tall store, I believe.

And that Big & Tall store, what street does that face? It faces 27th Drive. And that Big & Tall store, about how far away is it from

the Blaze Nightclub? A The actual building itself would probably be 25 yards

probably. Q Now, explain to the Court what -- Well, let me take a step

back. That parking lot that's the abandoned Big & Tall, has that been used as overflow parking in the past? UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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A Q A

Correct. And overflow for the club itself? Overflow for the club as well as parking lot in front of It's also used as

the club, which is Olive Garden restaurant. overflow. Q

To be clear, where you saw the defendant and his van that

night was near that Big & Tall in that overflow parking; is that correct? A Q Correct, off of 27th Drive just south of Peoria. Now, please explain to the Court the issues that you have

described in your report regarding gunfire that has occurred at the club. A In the back parking lot of the club on North Lane and on

Peoria Avenue itself, numerous times we've had people shooting off guns. Q Okay. Have you ever had the opportunity to catch any of

those individuals? A Q A No, sir. Why is that? It usually happens as they're pulling out of the parking

lot or driving down the road, when they're leaving the club. Q And you said the back parking lot. Can you give an

explanation to the Court of what you mean by that. A Well, the Blaze Nightclub faces south onto North Lane. So The

back part of the parking lot butts up to Peoria Avenue. UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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when I'm talking the back parking lot, I'm talking the north side of the club. Q And have you, as you described in your report, there had

been in the past few weeks instances of gunfire; is that correct? A Q Correct, yes, sir. And when you refer to the past few weeks, you're talking

about the few weeks before this date of April 15, 2006? A Q Yes, sir. And, again, this gunfire was occurring in the back parking

lot area as you've described? A Some of the back parking lot, some, like I mentioned, on

North -- on Peoria Avenue itself, and some on North Lane. Q So essentially bracketing the club to a certain extent; is

that correct? A Q Yes, sir. Now, can you give the Court an estimation as to the amount

of gunfire incidents that had occurred prior to April 15th, 2006? A On the days that I've worked, I can remember three. I've

also been told by other officers, but those are days that I didn't work, so I can't, you know, specifically say that I know about that. But I know of three instances myself when I was

working the club. Q And these occurred within the few weeks prior to April 15, UNITED STATES DISTRICT COURT
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2006? A Q Within probably the last three to five weeks or so. And you said you spoke with other officers that -- in that

same time frame that had gunshot issues there? A I'm not sure if it was the same time frame, but I know I've

spoken with other officers that would work the opposite weekends, and they've mentioned they also had the same problems. Q When you refer to the same problems, you are referring to

the gun -A Q To the same -Let me finish the question so the stenographer can actually

record this. Now, other issues you've dealt with in the parking lot itself dealing with patrons, have you had to deal with issues of public consumption of alcohol? A Q Correct. And anything involving the vehicles, vehicles being stolen

or broken into in any way, shape, or form? A I don't remember any on the days that I worked of vehicles It's not to say it didn't happen.

being broken into. Q Okay.

And last but not least, you explained to the Court

that on Friday nights, you have a younger crowd, and it's the younger crowd and the more issues that arise from that crowd is why there were three officers there; is that correct? UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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A

Correct. MR. LEE: I have no other questions at this time. Thank you. Mr. Kavanagh.

THE COURT:

MR. KAVANAGH:

Thank you, Your Honor.

CROSS-EXAMINATION BY MR. KAVANAGH:

Q A Q

Good morning. Good morning. Deputy Hernandez, this thing started with a tip from a

taxicab driver? A Q Correct. And he simply pulled up to you when you were standing in

the vicinity of the front entrance? A Q Correct. And all he told you was he saw a guy in the parking lot

along 27th Avenue just south of Peoria holding a rifle or a shotgun; is that correct? A Q A Q A Q Yes, sir. That's all you had? Yes, sir. You acted on that? Yes, sir. Now, you said in your police report that you acted on that

because of the recent reports of gunfire in the back parking lot; is that right? UNITED STATES DISTRICT COURT
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HERNANDEZ - CROSS

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A

No, not just because of that.

I did specify in my report

that we get numerous tips through things going on in the back parking lot, so we always check everything out, anything from domestic disputes to people drinking. with a problem, we'll go check it out. Q A Q But that's not in your police report, right? I believe it was, sir. Your Honor, if I can get Exhibit 98 for the motion hearing. Sir, if you would look at I believe it's Page 3 of your report. A Q Yes, sir. Do you see anywhere in there where you refer to anything If somebody comes up

other than recent shooting reports the past few weeks or reference crimes? A On Paragraph 2 -- and I'll go ahead and read the

paragraph -- it says, "I thanked the cabby for his information and decided to check his claim." It's not uncommon for individuals to pass on information which they might think to be helpful and turns out to be nothing. Q Correct. That's what I'm referring to.

But in your six-page police report, you only

reference recent shootings in the back parking lot; is that correct? A Q That's -- I would have to read the whole report, but -Go ahead if you'd like. It shouldn't take too long, if you

UNITED STATES DISTRICT COURT
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want to scan it. A Q I'd say it's probably a pretty fair statement. So your report only referenced some recent shootings in the

back parking lot? A Q A Q A Q A Q A Q Correct. Not along Peoria, correct? I don't believe so, sir. Not along 27th Drive? No, sir. Not along North Lane? No, no, sir. Nowhere but the back parking lot? Correct. So your report doesn't reference anything about the

overflow lot in the Big & Tall store? A Q No. So your report doesn't have any references to crimes at all

in the parking lot where Mr. White was? A Q A Q A Q No. That back parking lot, it's a couple acres big, isn't it? I would assume it is. It's huge? It's a good size parking lot, yes, sir. If I can have the witness look at Exhibit 99 for the motion I'm not sure exactly how big it is.

hearing, do you recognize that area? UNITED STATES DISTRICT COURT
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A Q

Yes, sir. Exhibit 99, is that a fair and accurate representation of

what the area looked like on April 15, 2006? A Q A Q Yes, sir, it is. And the back parking lot is large, isn't it? It's large, yes, sir. And it's right next to a motel called the Premier Inn; is

that correct? A Q A Q A Q A Q A I'm not sure of the name of the hotel. That's kind of a dope infested area? I wouldn't know, sir. I don't patrol that area.

You don't know much about the crime right next door? Not really, sir. And it shows the location of the Big & Tall store, correct? Correct. And the Big & Tall store has that blue roof? Yes, sir. MR. KAVANAGH: Judge, I would ask to admit Exhibit 99

in evidence. THE COURT: MR. LEE: Any objection?

None, Your Honor. 99 is admitted. About how many yards south of Peoria was

THE COURT: Q

(BY MR. KAVANAGH)

the van that you ended up contacting? A I would have to give you a guesstimation, sir. UNITED STATES DISTRICT COURT
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I would say

HERNANDEZ - CROSS

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probably 30 yards south of Peoria Avenue. Q A Q 30 yards? Maybe less. So maybe less. Okay. 30 yards or less from Peoria.

And how many yards was that van from the

vicinity of the front entrance of the Blaze where you were? A Q A Q A Q A I estimated in my report it was about 50. 50? Yes, sir. 50 yards? Yes, sir. I believe that's what I put down in the report.

You still stand by that? You know, I would have to go down and measure it off to

know exactly, but I'd say 50, 60 feet -- or 60 yards. Q A Q It's an approximate? That's approximate, yes, sir. So based on the tip from the cabby, you approached the

parking lot of the Big & Tall store? A Q A Q Correct. And as you approached, did you see any crimes occurring? As we were approaching, no. When you actually got up to Mr. White and Mr. Bowen, did

you see any crimes occurring? A No. The only thing I actually saw is when we got up to the

point where it was open where we could see him, we saw him UNITED STATES DISTRICT COURT
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walk -- I saw him walking back and forth with the rifle in his hand. Q A Q A Q A Q A Q But that's not illegal, correct? No. He wasn't pointing the weapon at anyone, was he? No, sir. And he wasn't recklessly handling the weapon, was he? No, sir. He was simply holding it pointed down, correct? Yes, sir. And from your observation, you couldn't tell whether or not

he was intoxicated, could you? A Q A Q No, sir. Didn't hear him yelling or screaming or threatening? No, sir. So when all is said and done, you had a guy holding a rifle

in a parking lot talking to a friend? A Q Correct. And you, I think, using your words, took him down at

gunpoint? A Q A Q A Correct. And you frisked him? Pardon? You frisked him? Afterwards. UNITED STATES DISTRICT COURT
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Q A

Seconds afterwards? It would have been a little while afterwards, not right

away. Q A Q A But you handcuffed him right away? I didn't handcuff him. Almost right away? I couldn't tell you. He was out of my sight at that time One of the other officers did, sir.

when he was being handcuffed. Q The next time you saw Mr. White, he was in handcuffs,

correct? A Q Yes, sir. So he was handcuffed fairly soon after your initial

contact? A Q A Q A Q Yes, sir, I'm assuming. And he was directed to sit on the ground; is that correct? Yes, sir. So you took control of him? Yes, we did. And prior to actually taking control of him, you issued

commands to him, didn't you? A Q Yes, I did. Now, you'd been there at this place, this Blaze Nightclub,

for about a year or so working off duty? A Q About, sir. In essence you're private police for the club? UNITED STATES DISTRICT COURT
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A Q A Q

Yes, sir. But you've got full police powers? Correct. So as a police officer, you still have to enforce the law,

correct? A Q A Q Yes, sir. Whatever the law may be? Correct. And you saw or heard about, I think, according to you, over

the last year numerous crimes occurring on the Blaze parking lot -- excuse me -- in the Blaze parking lot, correct? A Q A Q A Q A Q A Q A Q A Yes, sir. Fights, correct? Fights. Assaults? Yes, sir. Assaults on police officers? It's happened to me, yes, sir. Shootings? Heard shootings in the background. Back parking lot? Heard shootings in the area. Excuse me. Your report says --

My report says in the back parking lot, but you're asking

me or you're telling me I've heard in the area, in the back, in UNITED STATES DISTRICT COURT
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the area. Q Let me be clear. Were the shootings occurring in the back

parking lot on the property of the Blaze? A Q One more time, sir? Were the shootings that you referenced in your police

report occurring in the back parking lot of the Blaze? A Q The ones that I referenced in my report, yes, sir. And how many times did you report these crimes to the

liquor department? A Q A None. Why not? Because I really couldn't specify who it was that did it,

didn't have anybody in control of a weapon, never saw a weapon, just heard the guns. Q A Q You have been a policeman for 11 years, right? Yes, sir. You don't need that information before you should report

crimes to the liquor department, do you? A Q A I really don't know, sir, to be honest with you. You get paid by the Blaze, correct? Correct. But I get paid through an outside agency who gets

paid by the Blaze. Q Eventually the Blaze pays you from some intermediary

source? A Correct. UNITED STATES DISTRICT COURT
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Q A Q

The sheriff's office doesn't pay you? No. Of all the crimes that you were aware of at the Blaze, none

of them related specifically to Mr. White, did they? A Q Not to my knowledge, no, sir. And none of the gunfire that you heard in the last few

weeks prior to your contact with Mr. White didn't relate to Mr. White? A Q Not to my knowledge. In fact, you had nothing specific pointing toward Mr. White

at all other than the taxicab's tip? A Q Correct. And based on the taxicab's tip and what you saw, you took

Mr. White into custody; is that correct? A Q A Q A Q A Detention. He wasn't leaving, was he? Sir? He wasn't leaving, was he? No, sir, he wasn't. It looked like a formal arrest to you, didn't it? It could have. To somebody else, it would have looked like

a formal arrest, yes, sir. Q It had had all the attributes of a formal arrest,

handcuffing and control? MR. LEE: Objection. Making a legal determination.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Q

THE COURT:

The objection is overruled. I guess so, yes, sir. Anybody else looking at this thing who

THE WITNESS: (BY MR. KAVANAGH)

was not inside your head would say, hey, this guy's under arrest? MR. LEE: Objection. Speculation.

THE COURT:

The objection is overruled. I'm sure they would have, sir. So it looked like an arrest?

THE WITNESS: (BY MR. KAVANAGH)

Assuming, sir, yes, sir. Did you read the government's responsive motion to

Mr. White's motion to suppress? A Q No, sir. Did you meet with the government and talk about the facts

of this case? A Q Yes, sir. Did you tell the government that as you approached, you saw

it was an AK-47 rifle? A Q A Q A Q A Yes, sir. You told them that? Correct. And that's not in your police report, is it? I am not really sure, sir. Take a look, please. I don't have the full report here, sir, because part of the UNITED STATES DISTRICT COURT
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

report is the evidence that I put into property.

evidence sheet should have the type of rifle, and this is not on here, and that's part of the report. Q A Q A Q A Q Okay. You did impound the weapon, correct?

Yes, sir. And by that time, you had an idea of what it was? I had an idea what it was when I saw it. You knew what it was? Yes. When you approached Mr. White before you actually had

contact with him or anybody put hands on him, did you know that it was an AK-47 style rifle? A Q A Q A Q A Yes, sir, I did. And is that in your six-page typewritten report? Not in the typed report, no, sir. Why not? I didn't think it was necessary, sir. Didn't think that was an important fact? No, because I mentioned it in the, like I said, in the

property sheet when I impounded it. THE COURT: Excuse me just a minute.

Is he talking about the report that is attached to the government's response? MR. KAVANAGH: THE COURT: Yes, Your Honor, that six-page report.

Because there's a mention of the AK-47 at

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Page 5 of that report. MR. KAVANAGH:

Is that what you're asking him about? Your Honor, I understand that My question is as he's

eventually he knew what it was.

approaching, before he actually contacts Mr. White -THE COURT: I'm sorry. I thought your question was

was there a reference to AK-47 in the report. MR. KAVANAGH: No. I'm just trying to find out what

he knew and what he saw before he actually made contact with Mr. White. And he's saying he told the government that he saw

it was an AK-47 style rifle. Q (BY MR. KAVANAGH) But my question is is that anywhere in

your police report, your narrative police report? And I think the answer was no. A Is that correct?

No, other than on Page 6 there is mention, but that's, you But there's nothing that says

know, it's in the typed report.

that when I first saw him, I did not write down it was an AK-47. Q But in the government's response, it indicates that you

would testify that because you saw it was an AK-47, now your concerns were heightened. government? A Whether it would have been an AK-47 or whether it would Is that what you told the

have been a regular rifle, it would have been heightened. Q Certainly. But as you were approaching Mr. White that

morning, before you actually got up to him, could you see that UNITED STATES DISTRICT COURT
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it was an AK-47 style rifle? A Q Yes, sir. And that's not in your report? MR. LEE: Asked and answered, Your Honor. Let me ask him this. I know that at one,

THE COURT:

two, three, in the fourth full paragraph at Page 3 of the report, he uses the words was holding a rifle by the pistol grip in his left hand. Is that what you're referring to? MR. KAVANAGH: Judge, I'm just trying to find out what And

he saw before he actually took action against Mr. White.

the point is it's not in there that he identified what type of weapon it was. And if that's true, if it's not in there, which But it's reference that

I don't think it is, then we're done. line of questions.

And I just want to know whether or not, as

he's approaching, does he see that it's an AK-47 style rifle? And if so, why is that not in his police report? MR. LEE: And we're objecting because he's already

answered it twice now. THE COURT: All right. Just for the record, when did

you first realize it was an AK-47 rifle? THE WITNESS: THE COURT: Q A As soon as I saw it, Judge.

All right. But that's not documented?

(BY MR. KAVANAGH)

It's not documented that I recognized it as soon as I saw UNITED STATES DISTRICT COURT

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it.

It is documented in the report that it was an AK but not

as soon as I saw it, correct. Q And you also told the government that you saw that there

was a large capacity magazine in the weapon, correct? A Q A Q Yes, sir. But that's not in your police report either? Not when I initially saw it. It's not mentioned in there.

So no facts changed regarding how Mr. White was handling

this gun from the first time you saw him until you took him into custody, i.e., he was not handling it recklessly or displaying it recklessly, correct? A Q Correct. But you booked him into jail for disorderly conduct for

recklessly handling a weapon under state law, correct? A Q A Q A Q He was booked, yes, afterwards, yes. For disorderly conduct? Yes, sir. Based on your observations as you approached him? Correct. Did you have probable cause to arrest him for disorderly

conduct then? A At the time when I first took him into detention, I didn't I was trying to find

have any probable cause to arrest him. out the facts. Q

And after you found out the facts, you still didn't have UNITED STATES DISTRICT COURT

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probable cause to arrest him for disorderly conduct, did you? A Q A I felt I did, sir. Did something else happen? Well, once I found out the facts, that's when I found out

he was a prohibited possessor, shouldn't have had that weapon with him. And that's why I charged him with the disorderly

conduct with a weapon. Q So that may be true. I think we would all agree if he had But I'm talking about

that weapon, he shouldn't have. disorderly conduct. A

Like I said, after I found out the fact that he was a

prohibited possessor, that's when I decided to go ahead and charge him with the disorderly conduct, because he shouldn't have had that weapon in the first place. Q Okay. And you never knew he was a prohibited possessor

until after you ran a records check? A Correct. MR. KAVANAGH: THE COURT: I have no further questions.

Mr. Lee.
REDIRECT EXAMINATION

BY MR. LEE:

Q

You indicate in your report that you've received anonymous

tips from people in the past regarding possible criminal activity occurring at the parking areas; is that correct? A Yes, sir. UNITED STATES DISTRICT COURT
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Q A Q

And these tips, have you investigated them? All of them, sir. When you investigate them, do you always go approaching

them with guns drawn? A Q No, sir. And do you always arrest the individuals after

investigating the tips? A Q A No, sir. What was so unusual about this particular tip or situation? Well, first, when we approached this gentleman, we first We didn't get -- I didn't draw my

didn't have guns drawn.

weapon until I saw him with the rifle. Lots of different circumstances, reasons, one being the time of night. This was a nightclub. I see somebody out

there with an automatic weapon or an assault rifle, which is out of the norm -- the average person is not going to be out there with an automatic weapon walking around the parking lot -- for those reasons I decided to go ahead and approach him with guns drawn. Q And you approached him with guns drawn for officer safety

purposes; is that correct? A Q Correct, yes, sir. When you issued commands for the defendant to raise his

hands, what did he do with that rifle? A Immediately went to turn around, and he saw me turn towards UNITED STATES DISTRICT COURT
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the van, took a step, threw the rifle in the back, closed the doors of the van, and then turned around and started demanding why I was bothering him or what I was harassing him for. Q And subsequently he kept denying that he possessed the

rifle anytime; is that correct? A Well, when I told him that the reason I was with him is

because of the weapon that he had in his hand, he made a comment that he didn't have any rifle in his hand. Q Now, in your report you've indicated that it's not until

Page -- looks like you've listed Pages -- It's listed as Page 5 of 9. That's the first time you indicate in your written

summary of the events that it's an AK-47 assault rifle; is that correct? A Q Yes, sir. Several pages prior to that, as you are describing the

events, you describe this weapon as a rifle time and again; is that correct? A Q Yes, sir. And even when you physically picked up the rifle in your

hands and handed it to Deputy Gagnon to secure it, you refer to it as a rifle; is that correct? A Q Yes, sir. So by not referring to it as an AK-47 when you first saw it

in the defendant's hands or when you handled it or when Officer Gagnon handled it, you were not trying to indicate you UNITED STATES DISTRICT COURT
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didn't understand -MR. KAVANAGH: Q (BY MR. LEE) Objection --

-- you were not trying to indicate you didn't

understand what the rifle was? THE COURT: Let me hear the objection. Objection, leading the witness, Your

MR. KAVANAGH: Honor. THE COURT:

Well, this is a suppression hearing. The objection is overruled. No, I was not.

We'll let you do that. THE WITNESS: Q (BY MR. LEE)

And, again -Let me interrupt you, again, since this is I'm looking at the last "With

THE COURT:

a suppression hearing, not a trial.

paragraph on Page 3 of 9 of the report, and it states:

the van secured, I reached in and pulled out the assault rifle with magazine attached." And then the next-to-the -- in the

last sentence in the paragraph he says, "Once the passenger exited the van, I handed the assault rifle to Deputy Gagnon." So he's referred to the rifle twice as an assault rifle. Is that what you're talking about? MR. LEE: Yes. And we're also referring to when he

initially saw the defendant and when he was approximately 20 yards away from him. And I think that's where defense counsel was trying to see could you see not only it was a rifle when you first, when UNITED STATES DISTRICT COURT
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you started to approach him, but could you see what kind of rifle it was? Q (BY MR. LEE) And just to be clear, you own an AK-47 style

rifle, do you not? A Q A Q Yes, sir. And it has an extended magazine, correct? Correct. And when you were serving in the Marine Corps, especially

over in Desert Storm, did you see lots of AK-47 rifles at the time? A Q Lots of those. So you knew exactly what it was, what it looked like; is

that correct? A Yes, sir. THE COURT: Does the AK-47 have a pistol grip? Yes, sir.

THE WITNESS: THE COURT: grips? THE WITNESS: THE COURT: grips? THE WITNESS:

Do any non-assault rifles have pistol

Pardon, sir?

Do any non-assault rifles have pistol

I really couldn't tell you.

I don't

know all the assault weapons. MR. LEE: I have no further questions, Your Honor. All right. Thank you very much. You may

THE COURT:

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step down. Mr. Lee, anything else? MR. LEE: No, Your Honor. Mr. Kavanagh, anything else by way of

THE COURT: evidence?

MR. KAVANAGH: THE COURT:

No, Your Honor. Then let me hear from you very

All right.

briefly on the motions, because the jury is waiting. Mr. Kavanagh. MR. KAVANAGH: Judge, the testimony showed that Deputy

Hernandez arrested Mr. White for disorderly conduct based on no evidence. cause. It was an illegal arrest. He didn't have probable

He seems to think he did.

But based on his testimony

and based on the police report itself, he didn't have probable cause, let alone reasonable suspicion. So I think that's enough for this Court to grant our motion. What this case I can tell you I think should happen --

and I put that in my motion -- they should have slowed down a little bit and watched and waited. Maybe they would have

developed reasonable suspicion, probable cause, but they didn't. They just arrested this man at gunpoint and ended up What happens

finding out what they found out after the fact.

afterwards has nothing to do with what they did prior. And, Your Honor, I've cited some cases in my motion that talks about similar issues. I've looked at hundreds of

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39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not. cases. I think Mr. Lee has too. Hasn't found one right on

point, but I did find three, and, as I cited, those courts say, you know, there's no law against possessing a weapon. And so two cases dealt with anonymous tips. One was

I think that was the Timber Lake case out of Minnesota. And the Court said, in the two anonymous tip cases,

that even if the informer or the tipster was known, it still wasn't reasonable suspicion, because what was reported was completely legal. The Timber Lake case happened at midnight near a convenience market, and the caller was identifiable. And the

Court there still said it's not enough to do what they did, which is make the stop. We've got more in this case. This deputy actually So

arrested him at gunpoint, handcuffed him, based on a hunch.

I think, based on that, Judge, I think the Court should rule in our favor and suppress all the evidence. THE COURT: All right. Did you want to address the

Miranda motion as well? MR. KAVANAGH: adequately covers that. Judge, I think that the paperwork I don't think there's any dispute

regarding the legal issues in that area. THE COURT: MR. LEE: Thank you very much. Mr. Lee.

Your Honor, the deputy testified that yes,

he did arrest the defendant for disorderly conduct and for UNITED STATES DISTRICT COURT
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40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 felon in possession, and he made those arrests after he learned from Maricopa County dispatch and confirmed that the defendant had a prior felony conviction. He felt that the terms of

disorderly conduct also fell within that. The reality is that while at the time prior to that when the deputy approaches, when they take control of the situation, they do it as such for officer safety purposes, and they place the defendant in detention. He was holding an AK-47

style rifle at near 2:00 in the morning in an urban parking lot in an area where they've had gunshots associated with that club. I would like to see a police officer approach that situation in almost any state, any jurisdiction, without their guns drawn. It's amazing to me that it's portrayed in any

other way, shape, or form here. They placed him in detention for officer safety purposes. As they did that, the defendant made the situation

even more suspicious by throwing the gun in the van, slamming the door shut, proclaiming that he hadn't been holding anything. And as is stated in the motion, he starts And then later on he

proclaiming he had been holding a stick.

moves on to say he had been holding a hanger. We believe the approach was correct, that reasonable suspicion did exist at the time, and there is further, based on the defendant's denials, it brought that further along to the UNITED STATES DISTRICT COURT
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41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point where they found out through MCSO dispatch that he had a prior felony conviction that they could arrest him. when they arrested him. Prior to that, it was simply detention. And as for That's

the Miranda issues, I think we've already addressed those again to the Court through our motions. THE COURT: Anything in reply? I'm sorry, Judge?

MR. KAVANAGH: THE COURT:

Mr. Kavanagh, anything in reply? Judge, Mr. Lee says that he would be

MR. KAVANAGH:

surprised if any other law enforcement officer approached it differently, any other law enforcement officer in the country. Judge, most officers would approach it differently. They would watch. They would see what's going on. They might

call for marked units who are readily identifiable as police officers. They might take cover and issue commands from behind

a car if they're all that concerned about it. Judge, most reasonable police officers would have handled this a lot differently. And this officer just rushed

into it and just didn't have enough legal issues to do what he did. I mean, he arrested him without probable cause, and

everything that followed should be suppressed, Judge. THE COURT: Once he confirmed through the dispatch

that the defendant had the prior conviction, you concede there was probable cause at that point for everything that thereafter UNITED STATES DISTRICT COURT
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42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 occurred? MR. KAVANAGH: doesn't address that. that. Yes, Judge, certainly. But my motion

I'm focusing on what happened prior to

And my point is he didn't have enough to do what he did

under these facts, and the exclusionary rule says you don't look at the end result. THE COURT: You look at what happened prior. Well, I think you've presented

All right.

a very interesting issue.

And I approach it from the point of

view of the reasonableness standard of the Fourth Amendment. The question is always framed as what is reasonable under the circumstances? And of course what is reasonable to one person may be unreasonable to another. And, thus, the ultimate answer to the

question of reasonableness is usually in the ultimate court of last resort. But my own view of reasonableness under the Fourth Amendment is that -- Oh, and I distinguish it from good police practices. There may be better ways to do things. There may But that

be more professional approaches, wiser approaches.

there are better approaches doesn't mean that the approach taken falls short of reasonableness. And to me the material facts are that the officers were tasked with performing the function of outside security at a nightclub at 1:50 in the morning with a history of fights, assaults and shootings, shooting in the distance and the sound UNITED STATES DISTRICT COURT
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43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of gunfire. And a cab driver goes up to them and says they saw a man with a rifle. To me, it would have been unreasonable in So

the extreme for the officers to do nothing at that point. it was perfectly reasonable for them to follow up on this suggestion. I think every citizen would be concerned about

somebody walking around with a rifle at 1:50 in the morning in a parking lot adjacent to a busy nightclub. It's obvious

there's no legitimate reason to have a rifle in a parking lot next to a nightclub. You're not taking it to your NRA meeting, It's very, very, very

and you're not target practicing. suspicious.

And so, as I understand the facts, they walk up to the people gathered and, sure enough, confirm that somebody is walking around with a rifle with a pistol grip. It seems to me that it would have been unreasonable for them not to ask questions about that, and it would have been unreasonable, it seems to me, for them, in the face of someone holding a weapon that's of superior power to the handguns that they possessed, to not have fear for their own safety. And, thus, it seems to me that it was reasonable for them to draw their weapons so that in the event that this person who's holding this rifle with the hand grip at 1:50 in UNITED STATES DISTRICT COURT
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44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the morning outside the nightclub -- it was reasonable for them to draw their weapon, so if he pointed it at them or whatever, they could properly defend themselves. The difference in fire power was rather significant. And then when they did that and approached, the defendant acted extremely suspiciously by throwing the rifle in the vehicle and denying that he had it. And so at this point I think it was the -- the stop and frisk rule of Terry against Ohio made it reasonable for the officers to detain the defendant, handcuff him in the face of this unaccounted-for weapon. It was reasonable for them to

recover the weapon from the van from which -- in which he threw it. And it was reasonable for them to check with dispatch as And then once

to who the person was they were dealing with.

they found out that he was a convicted felon, it was then reasonable for them to formally arrest him, which is what they did. So it seems to me that the test of reasonableness is always going to be driven by the particular facts and circumstances surrounding a particular case. And in my view,

there could have been no reasonable, non-suspicious explanation for walking around in a parking lot with a rifle at 1:50 in the morning outside a busy nightclub with a history of violence. And so for that reason, the defendant's motion to suppress all evidence is denied. UNITED STATES DISTRICT COURT
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45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The defendant's motion to suppress all of the defendant's statements, I've read the motion, response, and reply. One of the vices of pretrial motions is that, you know, That is

I don't have a good feel for how wide the net is cast. to say, what statements are we talking about? The government says that, look, all of these

statements were statements that the defendant spontaneously made that were not the subject of custodial interrogation until after the dispatch information had been received, and then he was interrogated about his probation status and so forth. It seems to me that, without reference to any particular statement, that it's clear that the defendant was in custody even before his formal arrest, so the custodial part of Miranda is satisfied. The question, then, is there interrogation? And it seems to me on that you'd have to take it question by question and statement by statement. If the

defendant was interrogated by the officers without having been given the Miranda warnings, then those statements would be excluded. If, on the other hand, these were statements that

the defendant spontaneously made during this encounter, then that wouldn't be custodial interrogation. And so I believe that's the best I can do with that motion without going over each statement that the government seeks to offer statement by statement. UNITED STATES DISTRICT COURT
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46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do the parties have a more specific identification of what statements are going to be offered and what would be within or not within the notion of interrogation, or do you want to take it statement by statement as the evidence comes in? MR. LEE: Well, we can do that, Your Honor. We don't have to do it. I mean --

THE COURT: MR. LEE:

I'm sorry, Your Honor.

I was not --

THE COURT:

I mean, given -- In other words, it's

possible that the ruling I've given you would cause the two of you to agree as to which statements were the product of interrogation and which were not, because I've already concluded that there was custody. MR. LEE: Your Honor, essentially what the government

would be offering in -- And we can do it -- I will address it line by line. We will not be offering in the direct questioning of the defendant confirming his being on probation and being a prohibited possessor. But we can start with the initial statements we intend to offer the statement that the defendant indicated, was asked -- And we can follow it from the report itself. Page 4 of 9 from the report, and that's part of the government's exhibit. THE COURT: Which -- I'm sorry. I need to have the It's on

UNITED STATES DISTRICT COURT
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47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 same report you're referring to. MR. LEE: response. THE COURT: MR. LEE: This is the six-page incident report? It says on the bottom Which exhibit is it?

This will be Exhibit 1 from the government's

That's correct.

right-hand corner, looking for Page 4 of 9, the first full paragraph. THE COURT: MR. LEE: Yes.

We have the statement "Almost immediately

upon being ordered to place his hands upon the top of his head, John started demanding to know what he did wrong." THE COURT: MR. LEE: Yes. We want to

We want to put his demands in.

put his, when he was informed it was because it was the rifle, we want to put in his statement that he never had a rifle in his hands. Officers are simply responding to his question.

The officer then -- Then the defendant indicated he didn't have any rifle in his hands at all. The officer

responded not in the form of a question or in a statement to elicit an answer. In fact, the statement in essence told --

was essentially informing the defendant it didn't matter what he would say or would reply; he doesn't need to say anything else, because I asked him -- I told John he could say whatever he wanted because I personally saw the rifle in his hand. That was not a statement to elicit a response. UNITED STATES DISTRICT COURT
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It was

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 simply telling him: This is what I saw. You don't -- It

doesn't matter what you tell me. anything else whatsoever.

You don't have to tell me

This is what I saw.

And then it was at that time the defendant indicated he had been holding a stick. The officer asked at that time

where was that stick, because there was no stick in the van, and the defendant indicated he told me he didn't know where it was at. Again, these are not the product of custodial interrogation. This is the defendant rambling on essentially.

Then we would proceed also further to when the officers were asking personal information of the defendant during this time period as described by the officer. the same page. It's on

It's the second-to-the-last paragraph about the It starts with "John this whole time

middle of the paragraph.

continued to tell me over and over that he never had any rifle in his hands." Again, the officer did not ask him questions. defendant was rambling on about this. And then he states "John at one point in trying to get me to believe that he wasn't in possession of the rifle told me he was actually holding a plastic handgun which I mistook for the rifle." And the officer even describes in the first sentence of the next paragraph "After a few minutes of John's continuous UNITED STATES DISTRICT COURT
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The

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there. rambling, I just started to ignore him." So the defendant was continually making statements trying to exculpate himself from the situation. were not asking him questions. additional excuses. I believe the only other thing we have -- it's not in the report -- the officer, Officer Hernandez, has informed me that -- and I've informed defense counsel -- that although it's not in the report, that Officer Hernandez would testify that the female that approached him identified herself as the cousin who talked to -- He asked John what he wanted to have done with the keys to the van, and John indicated he wanted it to be given to the cousin. And that's the only other statement that we'd put in Again, it's not part of custodial interrogation. He The officers

And he was coming up with

just wanted to know what to do with the van itself. THE COURT: All right. Thank you very much.

And Mr. Kavanagh. MR. KAVANAGH: Judge, I'll start with the last one.

Other than just recently the notice I was given verbally from the government regarding this key issue well after I prepared my motion to suppress, I'd ask the Court to exclude that. I just heard of that I believe it was just prior So we didn't have any notice of that, and I'd

to the weekend.

ask the Court to exclude that for that reason alone. UNITED STATES DISTRICT COURT
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50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On Page 4 of the exhibit that the government was referencing, first full paragraph where there is talk about the stick, just based on the police report, it appears that Deputy Hernandez was engaging in conversation with John White and in fact confronted him with evidence: I saw the rifle in your That's

hands, quit denying it, words to that effect. interrogation.

And then he, the deputy, actually writes "John answered back." So he was responding to the deputy's question.

Whether it's phrased in a question or not, it was interrogation under Rhode Island versus Innis. It was

designed -- It was reasonably designed to elicit an incriminating statement. offense. THE COURT: This was all preceded, though, by the He's out there talking about the

defendant demanding of him an explanation of what he did wrong, as I understand that paragraph. MR. KAVANAGH: Well, that's what it says certainly.

But there was conversation. THE COURT: not by Hernandez. MR. KAVANAGH: follow-up questions. That's true. But then there was That was initiated by the defendant and

He was interrogated afterwards that he He should have just said you're

should have just stopped.

being arrested for disorderly conduct or whatever the reason UNITED STATES DISTRICT COURT
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51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was. THE COURT: Well, the police -- Again, this is just a

paragraph in a police report, so we don't really have the questions literally. But at least based on this one, the Hernandez tells

defendant demands to know what he did wrong.

him he was being ordered to do what he was instructed to do because of the rifle. rifle. And then defendant says he never had a

And then Hernandez says say what you want, but I saw And then defendant says he didn't have a rifle, and

the rifle.

instead he told him he was holding a stick. In none of that is there any questioning by Hernandez but simply Hernandez's response to the defendant's questions and demands. MR. KAVANAGH: Judge, it may not be a formal

interrogation or an interview question, but under the circumstances, it was interrogation. It was reasonably In fact, he

calculated to elicit an incriminating response. confronted him with evidence, the deputy. THE COURT: evidence.

Well, he didn't confront him with

He was responding to the defendant's demand to know

what he did wrong. MR. KAVANAGH: I understand that, Judge. I'm just

saying that he could have just answered that question you're under arrest for whatever, but he engaged him more. THE COURT: He did say that he said, well, you had a

UNITED STATES DISTRICT COURT
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52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rifle in your hands, and the defendant didn't stop talking. kept saying he didn't have a rifle. MR. KAVANAGH: Well, the deputy himself writes that He

John answered back as if there was some kind of give and take, some k