Free Response in Opposition - District Court of California - California

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1 STEVEN F. HUBACHEK California State Bar No 147703 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 5 Attorneys for Mr. Orozco-Aguirre 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) Plaintiff, ) ) v. ) ) VICTOR MANUEL OROZCO-AGUIRRE, ) ) Defendant. ) ________________________________________ ) Case No. 08CR0644-LAB DATE: June 16, 2008 TIME: 2:30 p.m. RESPONSE AND OPPOSITION TO GOVERNMENT'S MOTION FOR RECONSIDERATION

11 UNITED STATES OF AMERICA, 12 13 14 15 16

17 TO: 18 19 20 21

KAREN P. HEWITT, UNITED STATES ATTORNEY, AND RANDY JONES, ASSISTANT UNITED STATES ATTORNEY I. INTRODUCTION On March 26, 2008, Mr. Orozco Aguirre moved to suppress evidence seized as result of an unlawful

22 stop at the purported immigration checkpoint at Highway 86, near Westmorland, California. He argued, inter 23 alia, that the use of a pre-primary narcotics detector dog indicated that the authorities were using the 24 checkpoint to fulfill their general law enforcement duties, an argument that the Court acknowledged and about 25 which it questioned government counsel. See Reporter's Transcript of Motion Hearing ("RT"), April 14, 2008 26 at 33. Mr. Orozco Aguirre's motion was prompted by the Supreme Court's special needs jurisprudence, a body 27 of law that has been rapidly developing since the Supreme Court's decision in City of Indianapolis v. Edmond, 28 531 U.S. 32 (2000), a case which struck down a drug checkpoint. Indeed, the Supreme Court has observed

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1 that "[i]n none of our previous special needs cases have we upheld the collection of evidence for criminal law 2 enforcement purposes." Ferguson v. Charleston, 532 U.S. 67, 83 n.20 (2001). The notion that Fourth 3 Amendment incursions are not conducted for such purposes is the gravamen of a governmental claim of a 4 "special need": "[t]he traditional warrant and probable cause requirements are waived in our previous [special 5 needs] cases on the explicit assumption that the evidence obtained in the search is not intended to be used for 6 law enforcement purposes." See id. at 88 (Kennedy, J., concurring). 7 The Court declined to grant the motion, however, ordering a hearing. See RT at 33-34. In light of

8 the fact that the government would be seeking to justify the stop of Mr. Orozco Aguirre, defense counsel 9 requested discovery to permit him to meet the government's anticipated showing. The Court granted several 10 of the requests. See RT at 34-36. The government has produced none of the ordered discovery, and now 11 seeks reconsideration of the Court's order. In so doing, it offers no explanation as to why it waited a month 12 and a half to do so. 13 14 15 II. THE GOVERNMENT'S BOILERPLATE MOTION SHOULD BE DENIED The government's motion primarily relies upon three different points, none of which is the least bit

16 responsive to Mr. Orozco Aguirre's Edmond claim. First, it claims that discovery is not proper under United 17 States v. Armstrong, 517 U.S. 456 (1996), a selective prosecution case. Second, it relies upon a pre-Edmond 18 unpublished order by the late Judge Rhoades. Third, it cites the pre-Edmond decision in Unites States v. 19 Soto-Camacho, 58 F.3d 408 (9th Cir. 1995). Before proceeding to those, it is important to note what the 20 government does not address: the use of pre-primary narcotics detector dogs. That is the fact that Mr. Orozco 21 Aguirre emphasized and that prompted this Court to order a hearing. See RT at 33-34. Similarly, the 22 government's twelve page memorandum cites Edmond only once, see Motion for Reconsideration ("MR") at 23 10, and provides not one sentence of analysis of it. See id. Because the government fails even to address the 24 basis of the Court's ruling, the motion to reconsider should be denied out of hand. It should also be denied 25 as untimely. 26 Armstrong is inapposite. It concerns a selective prosecution claim, one that is held to a "demanding"

27 standard. See 517 U.S. at 463. The defendants in Armstrong were denied discovery because they failed to 28 meet that standard. See id. at 470-71. The government does not, however, explain why that failure should 2 08CR0644-LAB

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1 prompt this Court to reconsider its ruling. See MR at 3-4. As noted above, the Court did not order discovery 2 so Mr. Orozco Aguirre could make a claim; it ordered discovery because he had made a claim, and because 3 the Court offered the government an opportunity to justify its warrantless stop of Mr. Orozco Aguirre. See 4 RT at 33-34. 5 Moreover, the government's implausibly expansive reading of Armstrong, does not apply to motions

6 to suppress. See generally United States v. Cedano-Arrellano, 332 F.3d 568 (9th Cir. 2003). The government 7 implicitly acknowledges that Cedano-Arrellano controls by citing it only in a footnote and urging this Court 8 to refuse to follow it based upon Armstrong, a case decided years earlier. See MR at 6 n.3. Cedano-Arrellano 9 which cites Armstrong, see 332 F.3d at 571, is binding here. 10 That makes sense because Fed. R. Crim. P. 16 requires discovery relevant to a suppression motion,

11 it is not unfair that Rule 12(b)(3)(C) requires that a motion to suppress evidence "must be raised before trial." 12 Particularly in light of Rule 16, Fed. R. Crim. P. 12(b)(3)(C) should not be interpreted to require the absurd 13 result of demanding that defendants raise ­ and district courts resolve ­ suppression motions while the 14 prosecutor sits by, withholding relevant discovery. Consistent with this common sense interpretation, Rule 15 12(b)(4)(B) permits the defendant to request notice of evidence discoverable under Rule 16, and that the 16 government intends to use in its case-in-chief. This gives the defendant "an opportunity to move to suppress 17 evidence under Rule 12(b)(3)(C)." See Rule 12(b)(4)(B).1 18 In fact, discovery is constitutionally compelled in a number of contexts. Relying on Brady v.

19 Maryland, 373 U.S. 83 (1963), this Court has held that the government's "suppression of material evidence 20 helpful to the accused, whether at trial or on a motion to suppress, violates due process if there is a reasonable 21 probability that, had the evidence been disclosed, the result of the proceeding would have been different." 22 United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (emphasis added); see also United States 23 v. Barton, 995 F.2d 931, 933-34 (9th Cir. 1993) (same). In Gamez-Orduno, the Court held that the 24 25 A notable aspect of Fed. R. Crim. P. 12(b)(4)(B) is that it only gives defendants the right to request notice and discovery regarding motions to suppress, not motions to dismiss the indictment for "a defect in 26 instituting the prosecution." Compare Rule 12(b)(3)(A) (motions alleging defects in instituting prosecution), 27 with Rule 12(b)(3)(C) (motions to suppress). This is consistent with the central case relied on by the government, Armstrong, 517 U.S. at 456, which says that Rule 16 does not apply to motions to dismiss for 28 selective prosecution (i.e., "a defect in instituting the prosecution"), but does not say that Rule 16 is inapplicable to suppression motions. 3 08CR0644-LAB
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1 government violated due process requirements by withholding evidence of the defendant's Fourth Amendment 2 standing. 235 F.3d at 461-62. In Barton, the Court held that the "due process principles announced in Brady 3 and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of 4 allegations in an affidavit for a search warrant." 995 F.2d at 935. 5 As for Judge Rhoades' unpublished order, see MR at 4-6, it predates Edmond, the case upon which

6 the instant claim is based. It is therefore irrelevant. 7 Finally, the government's reliance on Soto-Camacho is misplaced.2 Like Judge Rhoades' order, Soto-

8 Camacho predates Edmond, and therefore does not apply the Edmond paradigm. Indeed, in keeping with its 9 head in the sand approach to the Edmond line of cases, the government does not even suggest that Soto10 Camacho's analysis is consistent with that line of cases. Of course, even if it did, Soto-Camacho provides no 11 basis for reconsidering the Court's order that discovery be produced. In fact, the record in Soto-Camacho 12 included affidavit from the Acting Patrol Agent in Charge of the El Centro office, see 58 F.3d at 410 n.1, as 13 well as statistical evidence. See id. at 410-11. Thus, the ruling in Soto-Camacho was based on some of the 14 very same discovery the government has refused to produce. Soto-Camacho was not based, however, on 15 evidence of pre-primary use of narcotic detector dogs, which, again, is the fact that is driving the analysis here. 16 In short, either Soto-Camacho nor the government offer any reason why the government should be permitted 17 to seek to justify the stop here without providing the discovery necessary to challenge its justification. 18 19 20 III. THE COURT SHOULD GRANT THE MOTION TO SUPPRESS The Court scheduled June 16, 2008 as the date on which the government could seek to justify its stop

21 of Mr. Orozco Aguirre. Trial is set for the next day. Because the government has failed to meet its discovery 22 obligations, the Court should sanction it by precluding it from seeking to justify the stop. See Fed. R. Crim. 23 P. 16(d)(2)(C), (D). As a result, all of the evidence seized from Mr. Orozco Aguirre, including contraband 24 and statements, should be suppressed. 25 // 26 The government is quite annoyed with Mr. Orozco Aguirre for allegedly referring to Chief Judge Kozinski's opinion in United States v. Soyland, 3 F.3d 1312 (9th Cir. 1993), as a concurrence when it is actually a 28 dissent. See MR at 10. Actually, Mr. Orozco Aguirre did refer to it as a dissent. The government must have Mr. Orozco Aguirre confused with some one else. 27 4 08CR0644-LAB
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IV. CONCLUSION For the foregoing reasons, Mr. Orozco Aguirre respectfully requests that this Court deny the motion

4 to reconsider and grant the motion to suppress. 5 6 7 DATED: June 9, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Steven F. Hubachek STEVEN F. HUBACHK Federal Defenders of San Diego, Inc. Attorneys for Mr. Orozco Aguirre Respectfully submitted,

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

3 information and belief, and that a copy of the foregoing document has been served this day upon: 4 Randy K. Jones U S Attorneys Office Southern District of California 5 880 Front Street Room 6293 6 San Diego, CA 92101 (619)557-5610 7 Fax: (619)235-2757 Email: [email protected] 8 9 10 Dated: June 9, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Steven F. Hubachek STEVEN F. HUBACHEK e-mail: [email protected] Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax)

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