Free Motion to Suppress Evidence - District Court of Delaware - Delaware

Case 1:05-cr-00001-JJF

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Filed 04/25/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA V. DAMIEN GIBBS : : : : :

CRIMINAL

NO.05-01

DEFENDANT'S PRETRIAL MOTION TO SUPPRESS EVIDENCE Defendant, by his attorney, James F. Brose, Esquire, hereby moves this Honorable Court to suppress all evidence gathered by the United States pursuant to the unlawful search and seizure of the defendant and his vehicle on December 22, 2004, and pursuant to the unlawful search and seizure of the residence at 505 Burton Village Apartments on the same date. In support thereof

defendant alleges the following: 1. On December 22, 2004, at approximately 1:14 p.m., three

Drug Enforcement Agency task force officers (hereinafter "TFO") arrested defendant Delaware. 2. Defendant was arrested for making prior drug deliveries when he exited a food store in Millsboro,

to a confidential informant. 3. Based on information they received, the task force

officers believed defendant was in the process of making another drug delivery when they arrested him. Immediately following the

defendant's arrest, TFO Marzec conducted a warrantless search of defendant's automobile in the food store parking lot. located 40 gross grams of suspected crack TFO Marzec in the

cocaine

defendant's vehicle.

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4. Millsboro allegedly

After

defendant's

arrest where

he

was he

transported

to

the and then

Police given to

Department his two he Miranda other knew

was

interviewed was

Warnings.

Defendant before cocaine

transported informing located. 5. defendant The to

police where

stations

allegedly could be

police

additional

aforementioned an apartment

task at 505

force Burton

officers Village

accompanied Apartments.

Defendant led the officers to a jacket in a closet in a bedroom of the apartment where the officers found two more bags of

suspected crack cocaine and one bag of powder cocaine. 6. Defendant contends the warrantless search of his

vehicle on December 22, 2004 was made without probable cause and was therefore of was the in violation States of the Fourth and and Fourteenth Article 1,

amendments

United

Constitution

Section 6 of the Delaware State Constitution. 7. Defendant contends that the statements he made

following his arrest were made under duress and coercion, or were made on the condition of a promise that law enforcement officers have breached by charging him with the additional cocaine found at the 505 Burton Village Apartments. 8. Defendant contends he had no authority to consent to

the search of the apartment at 505 Burton Village Apartments because he was not a tenant at that residence. 9. All evidence, gathered subsequent by to including federal the and physical state search evidence law of and

statements, officials

enforcement defendant's

unlawful

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vehicle is direct fruit of the poisonous tree and should be excluded from evidence in the trial of defendant. 10. All evidence gathered by federal and state law

enforcement officials subsequent to defendant's involuntary and unlawful consent to search the apartment at the Burton Village Apartments is direct fruit of the poisonous tree and should be excluded from evidence in the trial of defendant. WHEREFORE, exclude all Defendant requests this Honorable evidence law Court and to oral

evidence, gathered

including by state

physical and

statements,

federal

enforcement

authorities after defendant was arrested on December 22, 2004. Further, Defendant requests an evidentiary hearing on the matter.

Respectfully Submitted,

/s/ James F. Brose James F. Brose, Esq. 206 South Avenue Media, PA 19063 610-891-1989

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CERTIFICATION OF SERVICE I, James F. Brose, hereby certify that I caused to be

electronically filed a copy of the foregoing documents with the Clerk of Courts using CMECF, which will send notification that such filing is available for viewing and downloading to the

following counsel of record: David Hall, Esq. United States Attorney's Office 1007 Orange Street, Suite 700 P.O. Box 2046 Wilmington, DE 19899-2046

Date: April 25, 2005

/s/ James F. Brose

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