Free Motion to Supplement - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona REID C. PIXLER Assistant U.S. Attorney Arizona State Bar. No. 12850 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, v. 1) $493,850.00 in U.S. Currency, and 2) One 1993 Ford F350 Truck, Defendants, And Regarding the Interest of Roy F. Bruno and Miguel Camacho, Claimants. Plaintiff, United States of America, by and through its attorney, Paul K. Charlton, United States Attorney for the District of Arizona, Reid C. Pixler, Assistant United States Attorney, moves this Honorable Court to allow plaintiff to amend Plaintiff's Statement of Facts associated with the Second Motion for Summary Judgment and the Second Motion For Summary Judgment now pending before the Court. Now that the evidence from Florida has been made available, that evidence must be incorporated into the existing pleadings in order for the Court to fully evaluate the issues presented. In light of the consideration of additional material and additional rulings from the Court plaintiff has made additional amendments to the Statement of Facts, subject to the disclaimer contained at the end of this pleading. Plaintiff has determined the most efficient manner for incorporating this new evidence into this case is to amend or supplement this Statement of Facts and seek approval to amend or supplement the Second Motion For Summary Judgment.
CIV 03-2345-PHX-VAM MOTION TO AMEND OR SUPPLEMENT PLAINTIFF'S STATEMENT OF FACTS and SECOND MOTION FOR SUMMARY JUDGMENT

Case 2:03-cv-02345-VAM

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For the purposes of this Second Motion for Summary Judgment, and in an effort to make the record as clear as possible, plaintiff has submitted essentially the same Statement of Facts as was submitted to the Court with the first summary judgment motion. However, the factual summary provided in the numbered paragraphs which are or may have been impacted by the Order of the Court on September 2, 2004, have been marked through as indicated. Paragraphs which identify the defendant items, the truck and the currency, remain in the Statement of Facts but are not relied upon as evidence, consistent with the previous holding by the Court and consistent with the holding of One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 1251-52 (1965), that the seized res is not suppressed but tainted evidence may not be used to decide the forfeiture issue. Plaintiff notes at the outset that there is an inherent conflict or vagueness in some of the provisions of the Order of the Court. This issue is illuminated in the consideration of the numbered paragraphs or portions thereof contained in plaintiff's statement of facts and a determination of which are to be suppressed. The scope of the information suppressed is addressed in this passage of the Order filed September 2, 2004, at page 13-14. As such, the evidence gained after Officer McFarland determined that there was no impairment of the driver, handed him a warning and told him he was free to go must be suppressed. The only evidence which meets all of the conditions described by the Order, specifically related to the the question as to whether claimants were free to go, is that evidence which was obtained when the questioning continued, after the warning was issued. If the first event, the determination of the whether the driver was impaired, was the determining factor, then none of the rest of the sentence matters to the determination of the evidence to be suppressed and would be superfluous. If this interpretation of the order were correct, the Court would have suppressed exchanges between the officer and claimants prior to any of the acts which the Court found violated the 4th Amendment. As the result of the additional pleadings and argument before the Court concerning regarding the consideration of supplemental authority, it remains unclear to counsel for plaintiff
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whether any of the statements made by claimants prior to the point the officer advised CAMACHO he was free to go, have been suppressed. In the context of the hearing regarding the relevance of Illinois v. Caballes, 125 S.Ct. 834 (2005)(the issue of consent is immaterial to a canine inspection of an automobile during a legitimate traffic stop because a canine inspection is not a search), the Court focused solely upon the issue that the driver was not free to go, therefore his consent to the search was not voluntary. Specifically, there was no argument nor legal basis presented upon which the Court could determine that pleadings filed by counsel for claimants in the civil forfeiture action should be suppressed. See SOF 54-55. Further, the holding of the Court provided no basis to suppress all of the recitations of the officer contained in SOF 56. In fact, the factual findings and reasoning by the Court appear to support those items which remain in this Amended Statement of Facts. While these items remain in the Statement of Facts, because the legal issues addressed in this motion do not rely upon them, plaintiff seeks no advantage by including them. The Court is in the best position to determine what evidence from the statement of facts it will consider for the resolution of the Motion For Summary Judgment. By submitting the Amended Statement of Facts, plaintiff does not wish to be understood as conceding any evidence should be suppressed. Specifically, plaintiff reserves its right to assert on appeal that the consent of claimants was not required. At the point in time were the warning ticket was issued and Camacho was advised he was free to go the Officer was constitutionally authorized to deploy his canine for two reasons not addressed in the opinion of the Court: (1) The inspection of a vehicle by a canine is not a search and (2) the Officer had sufficient justification to deploy the canine. Plaintiff will also assert on appeal that the time required to deploy the canine was not constitutionally excessive.

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For the purpose of the consideration of the additional evidence from Florida, the State of Facts should be amended or supplemented, and the Second Motion for Summary Judgment should also be amended, to reflect the additional evidence contained in the Amended Statement of Facts. Plaintiff hereby requests that the Court approve the Filing of the Amendment Statement of Facts and the Amended Second Motion for Summary Judgment, as filed herewith. Respectfully submitted this 22nd day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ REID C. PIXLER Assistant U.S. Attorney

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CERTIFICATE OF SERVICE
X I hereby certify that on August 24, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: ____________________________________________________________________________________________ ____________________________________________________________________________________________

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S/ Victoria Tiffany
Richard B. Jones 273 South Scott Avenue Tucson, Arizona 85701 X I hereby certify that on August 24, 2005, I served the attached document by U.S. Mail on the following, who are not registered participants of the CM/ECF System:

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