Free Motion to Suppress - District Court of Arizona - Arizona

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MICHAEL TERRIBILE 111 West Monroe, Suite 1650 Phoenix, Arizona 85003 (602) 254-5544 (602)254-9263 fax State Bar No. 006725 Attorney for Defendant Hudson

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) v ) ) ) Danny Lynn Hudson, ) ) Defendant. ) _______________________________ )

United States of America,

Case No. CR04-1065-PHX-DGC

MOTION TO SUPPRESS

Mr. Hudson, through counsel, moves this Court, pursuant to the Fourth Amendment to the United States Constitution and case law cited in the following Memorandum, to suppress all the evidence seized from his residence on June 6, 2004. MEMORANDUM FACTS On June 6, 2004, an arrest team of U.S. Marshals went to 4417 W. Caron Avenue, Glendale, Arizona, to arrest David Kostas. Mr. Hudson was living at that address in another and separate part of the residence. According to the incident report, the arrest team went into the residence and took Mr. Hudson into custody. A handgun and drug

Case 2:04-cr-01065-DGC

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paraphernalia were found in his bedroom. There is no mention of a search or arrest warrant anywhere in the incident report. Mr. Hudson never saw a copy of any warrant. LAW The Fourth Amendment guarantees freedom from unreasonable searches and seizures. Absent an exception, a warrantless search is presumptively unreasonable. Coolidge v. New Hampshire, 403 U.S,. 443,

10 91 S. Ct. 2022 (1971). 11 12 13

Evidence seized in violation of the Fourth Amendment is not admissible in a criminal proceeding against the victim of the illegal search. Weeks v. U.S.,383, 34 S. Ct. 341 (1914).

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The burden of proof on a motion to suppress rests with the party who

16 seeks to justify the search. McDonald v. United States, 335 U.S. 451, 69 17 18 19 20

S. Ct. 191 (1948). CONCLUSION The evidence seized pursuant to this warrantless search is not

21 admissible against the defendant. Mr. Hudson therefore respectfully 22 23 24 25

moves this Court to enter an order precluding the Government from using as evidence anything seized from Mr. Hudson's residence. Excludable delay under 18 U.S.C. § 3161(h)(1)(F) may occur as a

26 result of this motion or any order based thereon. 27 /// 28

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RESPECTFULLY SUBMITTED this 16th day of September , 2005.

s/Michael Terribile MICHAEL TERRIBILE Attorney for Defendant Hudson

Filed this 16th day of September via ECF, and a COPY of the foregoing this 16th day of September, 2005 to: The Honorable David G. Campbell

11 hand-delivered 12 13 14 U.S. DISTRICT COURT JUDGE 15 401 West Jefferson 16 17 18 19 20 21 22 23 24 25 26 27 28

Phoenix, Arizona 85003

By: s/M. Shepard

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