Free Motion to Suppress - 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. William Kevin Domingo, through undersigned counsel, respectfully asks United States of America, Plaintiff, No. CR-04-1100-PHX-DGC MOTION TO SUPPRESS EVIDENCE (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 this Court to suppress evidence seized from his residence without a warrant on or 17 about Sunday, January 12, 2003, or Monday, January 13, 2003, the day when the 18 incident giving rise to the charges in this case occurred. This motion is made 19 pursuant to the Fourth Amendment to the United States Constitution, and Mincey v. 20 Arizona, 437 U.S. 385, 390 (1978), and is further supported by the attached 21 memorandum of points and authorities. 22 Excludable delay under 18 U.S.C. § 3161(h)(1)(F) and (8)(A) will occur 23 as a result of this motion or from an order based thereon. Respectfully submitted: December 7, 2005. 24 25 26 27 28 s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender
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JON M. SANDS Federal Public Defender

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Memorandum On January 12, 2003, there was a shooting at William Kevin Domingo's residence, a trailer located in Laveen, Arizona, on the Gila River Indian Reservation. On the evening of January 12, Mr. Domingo was shot twice, once in the abdomen and once in the back. Theophilus James, a friend of Mr. Domingo, died with a gunshot wound to his head. By the time the police arrived, the people who shot Mr. Domingo and Mr. James had fled the scene. Discovery provided to the defense indicates that Detective Romo Lewis was assigned to investigate the case at 10:41 p.m. on January 12. He arrived at Mr. Domingo's residence at 11:49 p.m. Detective Lewis was informed by police officers already on the scene that Mr. Domingo, the owner of the residence, had been transported by air to Good Samaritan Hospital, in Phoenix, with gunshot wounds to the left shoulder and abdomen. At 4 a.m. on January 13, while police were photographing and measuring the residence and the associated crime scene, Detective Lewis "located" a 38-caliber Smith & Wesson revolver. The revolver was found in an open storage box that was on the floor of the kitchen storage room. The revolver was collected and submitted to the evidence room of the Gila River Police Department. Police did not obtain a search warrant before searching the Domingo residence and seizing the revolver and other evidence. The Fourth Amendment prohibits searches and seizures inside a home without a warrant. Such searches are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). In addition, the Supreme Court has made it clear that there is no general "murder scene"exception to the Fourth Amendment's warrant requirement. In Mincey v. Arizona, 437 U.S. 385, 390 (1978), the police responded to the shooting of an undercover police officer at the defendant's residence. The injured persons were removed from the residence and the apartment was secured.

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1 Then, homicide detectives proceeded to search, photograph, and diagram the 2 residence for the next four days. No search warrant was obtained. Id. at 389. The 3 Court held that there was no "murder scene" exception to the Fourth Amendment, and 4 that the warrantless search of Mincey's apartment was unconstitutional. Id. at 395. 5 The Court rejected the argument that the search was justified by exigent 6 circumstances. "There was no indication that evidence would be lost, destroyed, or 7 removed during the time required to obtain a search warrant. . . . And there is no 8 suggestion that a search warrant could not easily and conveniently have been 9 obtained." Id. at 394. 10 The Supreme Court confirmed this ruling in Thompson v. Louisiana, 11 469 U.S. 17, 21 (1984)(per curiam). In that case, the defendant shot her husband and 12 then attempted suicide by taking an overdose of pills. Id. at 18. Before losing 13 consciousness, the defendant called her daughter and told her what happened. Id. 14 The daughter called police, who went to the residence, located the victim and the 15 defendant, who were taken to the hospital. Id. Then, homicide detectives conducted 16 a search of the residence for several hours, without a warrant. Id. at 18-19. The 17 Court stated that once the defendant and her deceased husband were removed, the 18 emergency justifying the warrantless entry into their residence had ended. No further 19 search or seizure was justified without a search warrant. Id. at 21. See also Flippo 20 v. West Virginia, 528 U.S. 11, 13-14 (1999) (per curiam) (warrantless search of crime 21 scene after murder victims found, including taking of photographs and collection of 22 evidence, violated Fourth Amendment). 23 This case is almost exactly the same. Mr. Domingo and his friend, Mr. 24 James, were shot. Police were called. They found Mr. Domingo on the sofa in his 25 living room, bleeding from his wounds. They found Mr. James on the ground outside 26 the residence, dead from a gunshot wound to the head. Mr. Domingo was evacuated 27 by air to Good Samaritan Hospital. Then, Detective Lewis conducted his 28 investigation, photographing and measuring the scene, and discovering the revolver 3
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1 in the storage room attached to the kitchen. At no time did the police obtain a warrant 2 justifying this search. 3 5 suppressed. 6 7 8 9 10 11 12 Copy of the foregoing transmitted 13 by CM/ECF for filing this 7th day of December, 2005, to: 14 Clerk's Office 15 United States District Court Sandra Day O'Connor Courthouse 16 401 W. Washington Phoenix, Arizona 85003 17 Tom Simon 18 Assistant U.S. Attorney United States Attorney's Office 19 Two Renaissance Square 40 N. Central Avenue, Suite 1200 20 Phoenix, Arizona 85004-4408 21 Copy mailed to: 22 William Domingo Defendant 23 24 s/ Kathy A. Kruckeberg 25 Kathy A. Kruckeberg 26 27 28 4
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For the above stated reasons, the evidence seized from Mr. Domingo's

4 residence, including the revolver found in the kitchen storage room, must be Respectfully submitted: December 7, 2005. JON M. SANDS Federal Public Defender s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender