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

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1 ERICK L. GUZMAN California Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Medina 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2125-WQH DATE: August 4, 2008 TIME: 2:00 P.M. NOTICE OF MOTIONS AND MOTIONS TO: 1) 2) 3) 4) 5) SUPPRESS EVIDENCE; PRODUCE GRAND JURY TRANSCRIPTS; PRESERVE AND INSPECT EVIDENCE; COMPEL DISCOVERY; AND GRANT LEAVE TO FILE FURTHER MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 ROBERT MEDINA, 15 16 17 18 19 20 TO: 21 Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND JOSEPH ORABONA, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that, on August 4, 2008 at 2:00 p.m., or as soon thereafter as counsel may

22 be heard, defendant, Robert Medina, by and through his attorneys, Erick L. Guzman, and Federal Defenders 23 of San Diego, Inc., will ask this Court to enter an order granting the following motions. 24 25 26 27 28

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MOTIONS Defendant, Robert Medina, by and through his attorneys, Erick L. Guzman, and Federal Defenders

3 of San Diego, Inc., asks this Court, pursuant to the United States Constitution, the Federal Rules of Criminal 4 Procedure, and all other applicable statutes, case law, and local rules, for an order to: 5 6 7 8 9 10 1) 2) 3) 4) 5) Suppress Evidence; Produce Grand Jury Transcripts; Preserve and Inspect Evidence; Compel Discovery; and Grant Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of

11 facts and memorandum of points and authorities, the files and records in the above-captioned matter, and any 12 and all other materials that may come to this Court's attention prior to or during the hearing of these motions. 13 14 15 DATED: July 16, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Erick L. Guzman ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. Medina [email protected] Respectfully submitted,

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best information

3 and belief, and that a copy of the foregoing document has been caused to be delivered this day upon: 4 5 6 7 Courtesy Copy Chambers Copy Assistant U.S. Attorney via ECF NEF [email protected] Copy Defendant /s/ ERICK L. GUZMAN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

8 Dated: July 16, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 ERICK L. GUZMAN California Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Medina 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2125-WQH DATE: August 4, 2008 TIME: 2:00 P.M. NOTICE OF MOTIONS AND MOTIONS TO: 1) 2) 3) 4) 5) SUPPRESS EVIDENCE; PRODUCE GRAND JURY TRANSCRIPTS; PRESERVE AND INSPECT EVIDENCE; COMPEL DISCOVERY; AND GRANT LEAVE TO FILE FURTHER MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 ROBERT MEDINA, 15 16 17 18 19 20 TO: 21 Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND JOSEPH ORABONA, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that, on August 4, 2008 at 2:00 p.m., or as soon thereafter as counsel may

22 be heard, defendant, Robert Medina, by and through his attorneys, Erick L. Guzman, and Federal Defenders 23 of San Diego, Inc., will ask this Court to enter an order granting the following motions. 24 25 26 27 28

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MOTIONS Defendant, Robert Medina, by and through his attorneys, Erick L. Guzman, and Federal Defenders

3 of San Diego, Inc., asks this Court, pursuant to the United States Constitution, the Federal Rules of Criminal 4 Procedure, and all other applicable statutes, case law, and local rules, for an order to: 5 6 7 8 9 10 1) 2) 3) 4) 5) Suppress Evidence; Produce Grand Jury Transcripts; Preserve and Inspect Evidence; Compel Discovery; and Grant Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of

11 facts and memorandum of points and authorities, the files and records in the above-captioned matter, and any 12 and all other materials that may come to this Court's attention prior to or during the hearing of these motions. 13 14 15 DATED: July 16, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Erick L. Guzman ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. Medina [email protected] Respectfully submitted,

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best information

3 and belief, and that a copy of the foregoing document has been caused to be delivered this day upon: 4 5 6 7 Courtesy Copy Chambers Copy Assistant U.S. Attorney via ECF NEF [email protected] Copy Defendant /s/ ERICK L. GUZMAN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

8 Dated: July 16, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 ERICK L. GUZMAN California Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Medina 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS On June 9, 2008 Border Patrol Agent Pitts observed a green Jeep Cherokee bearing California license Case No. 08CR2125-WQH DATE: August 4, 2008 TIME: 2:00 P.M. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 ROBERT MEDINA, 15 16 17 18 19 Defendant. Plaintiff,

20 plate #4GAP182 ("the vehicle") traveling on route 94. See I-831 at 5 (attached as Exhibit A). Agent Pitts 21 conducted a vehicle registration check, a 72-hour lane check, and a stolen vehicle check. See id. The vehicle 22 was traveling safely, with its head-lights activated and was obeying the speed limit. See Declaration of R. 23 Medina (attached as exhibit B). The vehicle stopped. Border Patrol Agents then approached the vehicle, 24 while all of its occupants remained in the vehicle. Nobody attempted to flee or exit from the vehicle. See 25 id. Fourteen undocumented Mexican citizens were located within the vehicle. See Exhibit A at 2. Mr. 26 Medina was one of the occupants of the vehicle. He was arrested and charged with violating 8 U.S.C. §1324. 27 Border Patrol Agent Davenport was involved with the arrest and wrote a report. See Exhibit A. This

28 report contains facts that are contradictory to those contained above. See id. at 5. These motions follow.

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II. SUPPRESS EVIDENCE Agent Davenport seized Mr. Medina without having reasonable suspicion or probable cause, in

4 violation of the Fourth Amendment. All fruits of that illegal arrest must be suppressed. See Wong Sun v. 5 United States, 371 U.S. 471 (1963). 6 A. 7 Mr. Medina Has Standing All occupants in a seized vehicle have standing to challenge the legality of the seizure. See Brendlin

8 v. California, 551 U.S. ___ (2007), 127 S.Ct. 2400. 9 B. 10 11 The Seizure of the Vehicle Was Not Supported by Reasonable Suspicion 1. Vehicle Stops Require Constitutional Scrutiny.

Terry v. Ohio, 392 U.S. 1 (1968), held that the Fourth Amendment allows officers armed with

12 reasonable suspicion to temporarily detain someone. Yet the Terry Court itself recognized that even this 13 lesser detention was still serious,"[i]t is a serious intrusion upon the sanctity of the person, which may inflict 14 great indignity and arouse strong resentment, and it is not to be undertaken lightly." Id. at 10. Even a limited 15 search is a "severe, though brief, intrusion upon cherished personal security, and it must surely be an 16 annoying, frightening, and perhaps humiliating experience." Id. 17 Under Terry, someone can be temporarily detained only if "an officer is justified in believing that the

18 individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to 19 the officer or to others." Id. at 24. The Terry court defined the relevant question as "would the facts available 20 to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' 21 that the action taken was appropriate." Terry, 392 U.S. at 21. 22 Courts must look at the "totality of the circumstances" of each case to see whether the detaining

23 officer has a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 24 U.S. 266, 273 (2002) (internal citations omitted). In Arvizu, the Supreme Court held that the Ninth Circuit's 25 "divide and conquer" analysis was improper in the reasonable suspicion context. Id. at 267. However, 26 "[r]easonable suspicion may not be based on broad profiles which cast suspicion on entire categories of 27 people without any individualized suspicion of the particular person to be stopped." United States v. 28 Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002) (citing Arvizu, 534 U.S. at 273).

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A vehicle stop must be supported by reasonable suspicion. Deleware v. Prouse, 440 U.S. 648, 653

2 (extending Terry stops to automobiles); see also Briogni-Ponce, 422 U.S. 873, 878 (1975) (applying Fourth 3 Amendment protection to investigatory stops of vehicles). 4 In analyzing the legality of a vehicle stop, courts inquire if all the factors known to the detaining

5 officer "taken together, they sufficed to form a particularized and objective basis for making the stop." 6 Sigmond-Ballesteros, 285 F.3d at 1121 (internal citations omitted). 7 In Arvizu, officers relied on the following factors to perform a vehicle stop: there had been sensor

8 alerts; the suspected vehicle appeared to be bypassing a checkpoint; the car was registered to an address four 9 blocks north of the border in an area notorious for alien and narcotics smuggling; the knees of the children 10 seemed to be raised; said children were waving mechanically, as if being ordered; the vehicle was not headed 11 near a known camping sight; and the vehicle was a van, which was known to be a perennial favorite of alien 12 smugglers. See Arvizu, 534 U.S. at 269-71. 13 14 Agents Pitts and Davenport did not observe anything that would supply them with a reasonable 15 suspicion that criminal activity was afoot. The vehicle was obeying all traffic laws. See Exhibit B. Further, 16 it appears that the registration and stolen vehicle checks yielded negative results. See Exhibit A at 5. 17 Agent Davenport stated that the vehicle was riding low. See id. Assuming this is true--a concession 18 Mr. Medina does not make--that still would not supply Agent Davenport with reasonable suspicion. He 19 implies that the low-ride is suspicious, because there "was no visible reason" for the vehicle to be riding low. 20 See id. Ironically, in his immediate parenthetical, Agent Davenport supplies Mr. Medina with his response. 21 That is, Agent Davenport included "equipment" as one possible explanation for the low-ride that was not 22 visible. However, equipment could have been in the rear of the vehicle and not visible to Agent Davenport. 23 Thus, the fact that Agent Davenport was unable to see the potential equipment in the rear of the vehicle is 24 not reasonable suspicious. 25 26 27 28 2. Neither Agent Davenport Nor Agent Pitts Observed Anything Indicating Illegal Activity

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Route 94 Does Not Charge a Toll of Fourth Amendment Protection

Virtually1, the only "suspicious" factor that has not been disputed by Mr. Medina is the area where

3 the vehicle was seized, which Agent Pitts described as "notorious" for alien smuggling. See Exhibit A at 5. 4 Thus, we are left with Agent Davenport observing a validly registered, non-stolen vehicle, obeying the traffic 5 laws, that may or may not have been riding low, on Route 94. Many innocent people travel on Route 94 6 every day at all hours. Sigmund-Ballesteros made clear that the Fourth Amendment does not allow agents 7 to cast a net of suspicion so wide as to include all motorists lawfully driving in an area such as Route 94, that 8 is "notorious" for illegal activity. See Sigmund-Ballasteror, 285 F.3d at 1121. Additionally, Route 94's 9 proximity to the border alone does not allow agents to effect a vehicle stop. See Briogni-Ponce, 422 U.S. at 10 873. 11 12 13 III. PRODUCE GRAND JURY TRANSCRIPT Rule 6 permits disclosure of grand jury proceedings at the request of a defendant who shows that a

14 ground may exist to dismiss the indictment. Fed.R.Crim.P. 6(e)(1)(E)(ii). The government was in possession 15 of exculpatory evidence when it presented this case to the Grand Jury for indictment. Failing to provide this 16 exculpatory evidence to the Grand Jury would be grounds for dismissal, thus Mr. Medina has meet the burden 17 of Rule 6(e). 18 19 20 IV. MOTION TO PRESERVE AND INSPECT EVIDENCE Mr. Medina renews the requests for preservation of evidence that was originally made before Judge

21 Brooks. See Clerk's Docket Sheet at 14 & 18. Additionally, Mr. Medina requests that the government 22 preserve any evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care 23 of the government (or its private contractors) in this case. See United States v. Riley, 189 F.3d 802, 806-08 24 (9th Cir.1999). This request includes, but is not limited to: (1) the vehicle; (2) any videotapes capturing Mr. 25 Medina or any third party in relation to this case, including footage taken by the California Highway Patrol 26 or any other law enforcement agency; (3) any recorded communications made by government or non27 28 Mr. Medina has not yet contested Agent Davenport's claim that the vehicle was riding low. Mr. Medina will first need to be granted access to the vehicle so as to do the proper investigation. 2 08CR2125-WQH
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1 government officials related to the above captioned case, e.g., 911 or dispatch tapes; and, (4) any other 2 evidence seized from the defendant or any third party in relation to this case. This request also includes any 3 material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g., 4 undocumented aliens and transients). Mr. Medina requests that government counsel be ordered to notify the 5 agencies and private contractors with custody of such evidence be informed of the Court's preservation order. 6 Further, Mr. Medina requests an order granting defense counsel and/or their investigators access to the 7 evidence for the purposes of investigation, including inspection, and photographing.

8 FED.R.CRIM.P.16(a)(1)(C). A proposed Order is attached for the convenience of the Court. 9 Mr. Medina requests that the above materials be preserved throughout the pendency of the case,

10 including any appeals. 11 12 13 V. MOTION TO COMPEL DISCOVERY Mr. Medina requests all production of all relevant discovery pursuant to Federal Rule of Criminal

14 Procedure 16 and Brady and its progeny, and any other relevant law. This includes material that may support 15 any defense pre-trial motions. See United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003) (Rule 16 16 applies to discovery material to defense pre-trial motions); United States v. Gamez-Orduno, 235 F.3d 453, 17 462 (9th Cir. 2000) (Brady applies to material supporting defense pre-trial motions). 18 Specifically, Mr. Medina requests production--or ability to inspect--the "A-File" of each witness that

19 was detained as part of the arrest in this case. Further, Mr. Medina requests production of the notes/and or 20 statements from the interview from each of the fourteen material witnesses. Mr. Medina also requests an un21 redacted copy of the I-831 (Exhibit A). Mr. Medina also requests the results of the registration check; stolen 22 vehicle check; and the 72-hour lane check Agent Davenport references in his report. See Exhibit A at 5. 23 Additionally, pursuant to Rule 12(b)(4)(B), Mr. Medina requests all evidence to which Mr. Medina

24 would be untitled under Rule 16, so that he may timely and properly negotiate his motions for the upcoming 25 hearing in front of this Court. 26 27 28

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VI. MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS Defense counsel has received 226 pages of discovery. As additional discovery is produced, evidence

4 is inspected, and new information learned, Mr. Medina requests leave to file new, or supplement his current, 5 motions. 6 7 8 9 10 11 DATED: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 July 16, 2008 /s/ Erick L. Guzman ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. Medina [email protected] VII. CONCLUSION For the foregoing reasons, Mr. Medina respectfully requests that the Court grant the above motions. Respectfully submitted,

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ERICK L. GUZMAN California State Bar No. 244391 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5030 Telephone: (619) 234-8467 Facsimile: (619) 687-2666 Email: [email protected]

UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 (HONORABLE WILLIAM Q. HAYES) 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 v. 14 ROBERT MEDINA, 15 Defendant. 16 17 18 IT IS HEREBY ORDERED that the United States Government and its agents make available to 19 the defense attorney and his agents, for examination, the 1993 Jeep Grand Cherokee, bearing California 20 license plate #4GAP182 ("the vehicle") seized in the above-referenced case. The Government and its agents 21 are further ordered not to destroy, transfer, or otherwise dispose the vehicle; and recorded communcation-22 including dispatch tapes--regarding Mr. Medina's arrest; any property found in the vehicle or any person 23 seized in the event; any reports or notes prepared during Mr. Medina's arrest and the resulting investigation, 24 without emergency application to this Court, notice to Mr. Medina, and an opportunity to respond. 25 SO ORDERED. 26 27 Dated: _______________ 28 HONORABLE WILLIAM Q. HAYES United States District Court Judge ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2125-WQH

ORDER TO PRESERVE AND INSPECT EVIDENCE