Free Reply to Response - District Court of California - California

Case 3:07-cr-00295-EDL

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Filed 09/05/2007

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BARRY J. PORTMAN Federal Public Defender ELIZABETH M. FALK Assistant Federal Public Defender 450 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 436-7700 Counsel for Defendant MAYS IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 This case warrants an evidentiary hearing. The facts are currently in dispute as to whether or 17 not the automobile that Ms. Mays was driving had its front license plate attached at the time of the 18 seizure. The facts surrounding the officer's approach of Ms. Mays are also in dispute. Ms. Mays 19 recollection of the facts surrounding the seizure are different from the officer's. The government's 20 legal analysis depends on the Court's resolution of its factual assertions in the government's favor. 21 In such situations, an evidentiary hearing is necessary. 22 The legal determinations this Court must make in this case are fact determinative; whether or 23 not the officer had reasonable suspicion to seize the car and pull the passenger out of the car depends 24 on the facts that are currently in dispute. For example, Ms. Mays concurs with the government's 25 analysis that under Maryland v. Wilson, 519 U.S. 408, 410 (1997), an officer can lawfully pull a 26
DEF. MOT . TO SUPPRE SS No. CR07-0295 MAG

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) ) v. ) ) ) NICOLE MAYS, ) ) Defendant. ) __________________________________________)

No. CR 07-0295 MAG DEFENDANT'S REPLY IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE AND STATEMENTS; REQUEST FOR EVIDENTIARY HEARING Date: September 18, 2007 Time: 11:00 a.m. Court: The Honorable Elizabeth D. Laporte

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Case 3:07-cr-00295-EDL

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passenger out of a vehicle if a lawful traffic stop is effected. However, the facts of this case are different than a normal traffic stop; here, the car was already parked at the time the officer approached. The officer provides a justification for approaching the vehicle that Ms. Mays disputes; whether the car had a front license plate. Until this factual issue is resolved by the Court, it would be impossible for the Court to make any determination regarding reasonable suspicion under the Wilson test. Whether or not Wilson even applies depends upon whether the "stop" in this matter was lawful. Nor are the government's arguments regarding the passengers' eye contact and alleged furtive movements dispositive on the issue of reasonable suspicion. In the Ninth Circuit, these actions only constitute reasonable suspicion when considered in conjunction with other suspicious activity. See United States v. Malone, 886 F.2d 1162 (9th Cir. 1989). As stated in the opening brief, eye contact with police is strongly disapproved of in the Ninth Circuit as a factors that, standing alone, constitutes reasonable suspicion. See United States v. Montero-Camargo, 208 F.3d 1122, 1136 (9th Cir. 2000). The government's opposition does not discuss any of these cases. The law of this case flows from the facts deduced. For these reasons, Ms. Mays respectfully requests an evidentiary hearing to resolve the facts that are in dispute. Following that hearing, Ms. Mays can and will supplement this Reply Brief to discuss the law of reasonable suspicion as applied to the facts. // // // // // // // // //
DEF. MOT . TO SUPPRE SS No. CR07-0295 MAG

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DEF. MOT . TO SUPPRE SS No. CR07-0295 MAG

CONCLUSION For the foregoing reasons, Ms. Mays respectfully requests that this Court order an evidentiary hearing to determine the facts that occurred on March 18, 2007. In the alternative, Ms. Mays respectfully requests this Court to suppress all evidence and statements arising from her illegal detention, search, seizure, and arrest, occurring in violation of the Fourth Amendment. Should this Court elect to hold an evidentiary hearing, Ms. Mays respectfully requests that the matter be rescheduled to late September or early October, 2007. The reason for this request is to ensure that Ms. Mays has adequate time to subpoena all the witnesses necessary to testify at the hearing with respect to the license plate issue. Until a hearing date is established, Ms. Mays cannot utilize the subpoena power of this Court. Ms. Mays appreciates the Court's consideration in this regard. Dated: September 5, 2007

Respectfully submitted,

BARRY J. PORTMAN Federal Public Defender

____________________________ ELIZABETH M. FALK Assistant Federal Public Defender

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