Free Reply - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Ste 201 Phoenix, Arizona 85007 3 Telephone: 602-382-2700 4 DAVID LEE TITTERINGTON State Bar # 006500 5 Asst. Federal Public Defender [email protected] 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. William Domingo, Defendant. United States of America, Plaintiff, No. CR-04-1100-PHX-DGC REPLY IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

William Kevin Domingo, through undersigned counsel, respectfully

16 submits the following reply in support of his motion to suppress evidence. Excludable delay under 18 U.S.C. § 3161(h)(1)(F) and (8)(A) will occur 17 18 as a result of this motion or from an order based thereon. Respectfully submitted: December 30, 2005. 19 20 21 22 23 24 25 26 27 28 s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender JON M. SANDS Federal Public Defender

Case 2:04-cr-01100-DGC

Document 27

Filed 12/30/2005

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Memorandum In its response, the government contends that the search of Mr. Domingo's residence was justified by exigent circumstances. Specifically, the government contends that recognizing the gravity of the offense under investigation and the potential danger, Detective Romo Lewis made a warrantless entry into Mr. Domingo's residence to secure the residence for both his and the other officers' safety. The government contends that Detective Romo was informed by other officers on the scene that the interior of the residence had not been secured prior to his arrival. Unfortunately for the government's position, the discovery provided to defense counsel belies this contention. According to police reports filed by the police officers who first arrived on the scene, Mr. Domingo's residence had been cleared prior to Detective Romo's arrival on the scene. Ranger Sichling was the first officer to arrive on the scene. As he arrived on the scene, a woman later identified as Amy Kisto was waving him down from the front door of the residence. Ranger Sichling saw a body in front of the house. He determined that this person was not moving or breathing, and he could not find a pulse. Ms. Kisto yelled from the door for Ranger Sichling to enter the house because Mr. Domingo had been shot. He entered the house and saw a man sitting on the couch with a bloodstain on his left shoulder. He notified dispatch that there were two possible victims, and a possible homicide. Then, Officer Marbell arrived, and together they assisted Mr. Domingo to maintain consciousness. They saw another gun shot wound to his abdomen. Ms. Kisto was visibly upset. Ranger Sichling asked her whether anyone else was in the house, and she said her baby. Ranger Sichling went with Ms. Kisto to the bedroom where the baby was sleeping. Ms. Kisto said that the baby was okay.

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Ranger Sichling turned over Mr. Domingo to the emergency medical

2 technicians who had arrived on the scene. Then Officer Marbell and Ranger Sichling 3 cleared the house, and verified there was no one else in the house. Ranger Sichling 4 then left the house and surveyed the scene. Officer Marbell told him to look for 5 bullet casings outside the residence, and to start setting up crime scene tape to keep 6 people back. 7 At some point, Sergeant Tanakeyowma arrived on the scene and assumed 8 command of the scene. Other officers present on the scene included Officer Redman, 9 Officer Marquez, Ranger Morago, and Sergeant Humeyumptewa. 10 According to Officer Redman's report, she took Ms. Kisto and her child 11 to her patrol car where they could speak. She also surveyed the residence for 12 evidence after Mr. Domingo had been transported to Good Samaritan Hospital by 13 helicopter. She was accompanied by Officer Marbell and Ranger Sichling as she 14 surveyed the exterior of the residence, and identified bullet holes in the front door and 15 exterior walls. She also entered the residence alone, and found bullet holes inside the 16 living room, the kitchen, and the bedroom, and a copper bullet on the kitchen floor. 17 All of this activity occurred before Detectives Romo and Manuel arrived 18 on the scene, and the scene was turned over to them. According to Officer Redman's 19 report, they then took measurements, photographs, spoke with witnesses, and 20 packaged any collectable evidence. 21 According to reports of the various officer at the scene, the scene had 22 been completely secured before Detective Romo ever arrived. As a result, the 23 government cannot successfully avoid the Fourth Amendment's requirement that a 24 warrant be secured before the search of the residence. The evidence seized by 25 Detective Romo, including the revolver supposedly found in the storage room in the 26 kitchen, must be suppressed. 27 . . . . 28 . . . . 3
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Respectfully submitted: December 30, 2005. JON M. SANDS Federal Public Defender s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender

Copy of the foregoing transmitted 8 by CM/ECF for filing this 30th day of December, 2005, to: 9 Clerk's Office 10 United States District Court Sandra Day O'Connor Courthouse 11 401 W. Washington Phoenix, Arizona 85003 12 Tom Simon 13 Assistant U.S. Attorney United States Attorney's Office 14 Two Renaissance Square 40 N. Central Avenue, Suite 1200 15 Phoenix, Arizona 85004-4408 16 Copy mailed to: 17 William Domingo Defendant 18 19 s/ Kathy A. Kruckeberg 20 Kathy A. Kruckeberg 21 22 23 24 25 26 27 28 4
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