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

Case 3:08-cr-02428-JAH

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PHILIP A. DeMASSA # 47667 PHILIP A. DeMASSA, APC SUITE 201 2356 MOORE STREET San Diego, CA 92110 Telephone: (619) 294-2777 Facsimile: (619) 294-2120 [email protected] Attorney for Defendant VICENTE MANUEL AGUIRRE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2428 JAH NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE

10 Plaintiff, 11 v. 12 VICENTE MANUEL AGUIRRE, 13 Defendant. 14 15 TO: 16 17

DATE: August 25, 2008 TIME: 8:30 a.m.

KAREN P. HEWITT, UNITED STATES ATTORNEY, AND CAROLINE P. HAN, HER AUTHORIZED REPRESENTATIVE:

PLEASE TAKE NOTICE that on August 25, at 8:30 a.m., or as 18 soon thereafter as counsel may be heard, Defendant VICENTE 19 MANUEL AGUIRRE, by and through his counsel, Philip A. DeMassa, 20 of Philip A. DeMassa APC, will move the Court to enter an Order 21 suppressing evidence as set forth below in that Defendant was 22 arrested and his vehicle seized without probable cause or 23 warrant in violation of the Fourth Amendment and Federal Rules 24 of Criminal Procedure 12(b) and 41(c) and (f). 25 This motion will be based on the instant notice of 26 motion 27 memorandum of points and authorities, any and all evidence 28 MOTION TO SUPPRESS- 1 and motion, the attached statement of facts, the

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produced at an evidentiary hearing, and any supplemental written or oral arguments. Defendant requests an evidentiary hearing as to all issues. Defendant seeks to suppress: the currency found in his vehicle (approximately $274,000), all the items located in the 1999 Cadillac El Dorado including phones and documents, the items seized from defendant's person, and any and all statements obtained from defendant at any time, both pre and post arrest. I STATEMENT OF FACTS [The following facts are mostly adduced from the

complaint and evidence provided by the Government to date. Although one Government attorney said the stop of defendant's vehicle going in the general direction of the United StatesMexico border was based on a wiretap, the Government now refuses to disclose whether a wiretap was involved in this case.

Rather, defendant was advised that if he wished to press this point, he should file an applicable motion. For this reason,

although not having done so for some time, defendant filed on August 13, 2008 of a motion for discovery including This seeking motion

revelation

all

wiretap-related

evidence.

specifically excludes any motion to suppress based on wiretap surveillance and related interceptions for the simple fact that the Government has not admitted such-at this point in time. When such evidence becomes available, a motion to traverse and to suppress will be filed on this basis.] On June 25, 2008 defendant's 1999 Cadillac El Dorado was

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stopped

at

5:00

p.m.

by

a

Customs

Enforcement

and

Border

Protection Officer

in the Calexico area.

After receiving a

negative declaration from defendant, a canine allegedly alerted on the vehicle's quarter panel. Defendant and the vehicle were

later searched and packages of currency were located concealed behind the backseat backrest. Defendant was taken to an A total of $243,940 was seized. interview room and during an

interrogation made incriminatory statements admitting he had an idea he was either transporting money or weapons.

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II MEMORANDUM OF POINTS AND AUTHORITIES Defendant Was Detained Without Cause And All Evidence And Statements Derived Thereafter Must Be Suppressed. Based on the paucity of facts provided in discovery,

defendant was detained and questioned without any reasonable cause or "reasonable suspicion". Unreasonable stops,

detentions and searches are presumptively unreasonable under the Fourth Amendment subject to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). The Fourth Amendment applies to "seizures that involve only a brief detention short of traditional arrest." Whenever

a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. A person has a right

to be free from arbitrary interference by law officers. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). situation occurred to this defendant. The Supreme stop Court must be has made it by clear some that an This

"investigatory

justified

objective

manifestation that the person stopped is, or is about to be, engaged in criminal activity." U.S. 411, 417 (1981). United States v. Cortez, 449

The detaining officers must have a "a

particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 418. Good faith on the part of the officers is legally insufficient. Henry v. United States, 361 U.S. 98, 101 (1959).

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Here, the officer had no facts to justify stopping and detaining defendant. It was early evening and defendant was driving his vehicle legally within the United States. There is

not a scintilla of suspicious activity present in such a day-today common action. Under any rational, objective view,

defendant was detained without reason. Any subjective view by the officers is totally irrelevant. Stansbury v. California, 511 U.S. 318, 323, 326. Defendants' case is similar to Brown v. Texas, 443 U.S. 47 (1979), where Chief Justice Burger found for a unanimous court an unlawful detention while considering even more

egregious facts than are presented herein: two officers saw Brown and another walking in opposite directions in an alley whom the officers thought either had been together or were about to meet. The officer felt Brown "looked suspicious", had not

been seen before, and was in an area with a "high incidence of drug traffic." Brown refused to identify himself, was frisked and arrested. Judge Burger found the detention occurred when Brown was first approached and required to identify himself. This was unlawful. Consistent with the cases cited above, Judge Burger rejected the state's claim the officers had a

"reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed." "[N]one of the

circumstances preceding the officers' detention of appellant justified a reasonable suspicion that he was involved in

criminal conduct."

No facts were relied on by the officers to

show suspicious activity; being in a neighborhood frequented by

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drug users "is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's

activity was no different from the activity of other pedestrians in that neighborhood." Id., 443 U.S. at 48-52. In the instant case, no suspicious facts have been, or will be presented. The

things the officers observed defendants doing are those commonly associated with simply driving. Evidence seized by police via an unconstitutional search and/or seizure is inadmissible in criminal proceedings and must be suppressed. Mapp v. Ohio, 367 U.S. 643 (1961); Wong Sun v. United States, 371 U.S. 471 (1963). B. All Statements And Evidence Must Be Suppressed As Being Obtained Detention. Miranda warnings are triggered whenever a person is In Violation Of The Illegal Stop And

questioned by law enforcement officers after being taken in custody "or otherwise deprived of his freedom in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); Stansbury, Defendant was deprived of his freedom

supra, 511 U.S. at 322.

when he was accosted by the officer; hence, the officer was under arrest triggering immediate Miranda warnings. A Miranda violation accords a "bright line" legal

presumption of coercion requiring suppression of all unwarned statements. Oregon v. Elstad, 470 U.S. 298, 306-07, n. 1, 317 (1985). Using an objective standard, defendant was being

detained. Stansbury, supra, 511 U.S. at 322, 324. All statements defendants made thereafter, including

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the denials he was transporting currency in excess of $10,000, and the evidence which followed must be suppressed. Dunaway v. New York, 442 U.S. 200, 216-219 (1979). Even if Miranda rights were given at some point, there can be no showing there was an effective and valid waiver. "heavy burden rests on and the government to demonstrate his A the

defendant

knowingly

intelligently

waived

privilege

against self-incrimination...." Miranda, supra, 384 U.S. at 475. Courts "must presume that a defendant did not waive his rights [and] the prosecution's burden is great." North Carolina v.

Butler, 441 U.S. 369, 373 (1979). The discovery provided by the government fails to either state or imply defendants ever waived their rights. C. The Warrantless Seizure And Search Of The Bags Was Illegal. The officers had control of the situation and the vehicle. Defendant Aguirre was detained and not free to go. The Cadillac was immobilized as the officers had the keys and surrounded it. search warrant. justifying a The officers were legally required to obtain a There was no emergency or exigent circumstance without a warrant. United States v.

search

Chadwick, 433 U.S. 1, 15-16 (1977). suppressed. CONCLUSION

All the evidence must be

For the reasons set forth above, defendant asks for an evidentiary hearing and thereafter a Court order that the evidence mentioned previously in this motion be suppressed.

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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 26 27 28 MOTION TO SUPPRESS- 8 S/ Philip A. DeMassa PHILIP A. DeMASSA Attorney for Defendant VICENTE MANUEL AGUIRRE DATED: August 13, 2008 Respectfully submitted,

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1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 5 UNITED STATES OF AMERICA, 6 7 8 9 10 11 I HEREBY CERTIFY THAT: 12 13 14 15 16 17 18 19 20 21 22 1. 23 24 25 26 27 28 CERTIFICATE OF SERVICE I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 13, 2008 s/Philip A. DeMassa PHILIP A. DeMASSA None I hereby certify that I have caused to be mailed the foregoing by the United States Postal Service, to the following non-ECF participant(s) in this case: I am not a party to the above-entitled action. I have caused service of Notice of Motion and Motion for Discovery, Disclosure of Electronic Surveillance, etc. and Points and Authorities in Support of Motion for Electronic Surveillance, etc and attached Declaration of Philip A. DeMassa on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System which electronically notifies them: 1. Caroline P. Han, Esq [email protected] I, PHILIP A. DeMASSA, am a citizen of the United States and am at least eighteen years of age. My business address is 2356 Moore Street, Suite 201, San Diego, CA 92110. v. VICENTE MANUEL AGUIRRE, Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2428 JAH CERTIFICATE OF SERVICE