Free Reply to Response - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975 Phillip E. Hantel 3 Attorney at Law
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282 A ttorneys for H enry W atkins

UNITED STATES OF AMERICA DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. HENRY WATKINS, Defendant. ) ) ) ) ) ) ) ) ) ) CR03-1167-PHX-DGC REPLY TO RESPONSE TO MOTION TO SUPPRESS EVIDENCE (Motion to Suppress is Dkt. #989)

The government did not respond to Mr. Watkins' challenge to the reasonableness of law enforcement's entry into his home at 5:20 a.m. on July 8, 2003. Instead, the government argued that Mr. Watkins' statements were not the product of the alleged illegal governmental activity and his motion must be denied. (Response, Dkt.#1048 ("Resp."), p. 2: 11-14.). Fourth Amendment Violation The government admitted that law enforcement forced entry into Mr. Watkins' home. The government wrote that, "After waiting approximately 10 seconds, officers forced entry [into Mr. Watkins' home]. Once the door was breached, officers deployed a noise flash diversionary device. Defendant Watkins was arrested without incident in a back bedroom." (Resp., p. 8: 1-3). The ten second estimate is not contained within the two page report provided to Mr. Watkins by the government. Thus, it is unclear how the government arrived at this estimate. The only information about the entry in the police report is "OVPD SWAT made initial entry in to the Watkins residence at approximately 0523 hours and placed Watkins in custody." (ROI785040-02-0049, Report #75, ¶2). The report of the entry does not indicate that police either

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knocked or waited ten seconds prior to forcing entry. Mr. Watkins will testify that law enforcement did not announce their presence in any fashion prior to breaking into his home. In the early morning hours, he was still sleeping when he heard a commotion and jumped out of bed to investigate. He didn't get very far when the stun grenade exploded just outside his bedroom door. The stun grenade, or as the government calls it "a noise flash diversionary device," exploded with such force that it blew him back onto his bed. Mr. Watkins was left stunned--unable to hear and disoriented for hours. In its response, the government never addressed whether the entry into Mr. Watkins' home was unreasonable under the Fourth Amendment and 18 U.S.C. § 3109. (Resp., p. 7: 18-20). However, the government combined its response to Mr. Watkins motion to suppress with a factually unrelated motion to suppress filed by Rudy Jamie. In the portion of the government's response which addresses search of Mr. Jamie's home it argued that the entry into Mr. Jamie's home was reasonable. (Resp., pp. 4-7). Citing Richardson v. Wisconsin, 520 U.S. 385 (1997), the government acknowledged that whenever the reasonableness of a no-knock entry is challenged, the police must make a showing that knocking and announcing their presence under the particular circumstances would be dangerous or futile. (Resp., p. 3: 26-28 & p. 4: 1-5). In response to Mr. Watkins' challenge to the reasonableness to the July 8, 2003 entry into his home, the government has not argued that it was reasonable to burst into Mr. Watkins' home at 5:20 in the morning. The entry into Mr. Watkins' home was unreasonable and violated the Fourth Amendment. Not surprisingly, Mr. Watkins was asleep when police arrived. Officers made no effort to comply with the Fourth Amendment or the knock and announce statute. The government waived its opportunity to argue that the entry was reasonable because it was unreasonable and violated the Fourth Amendment. The only issue for the court is to fashion a remedy for the illegal entry into Mr. Watkins' home. Exclusionary Rule The government wrote that no items of evidence were seized during the execution of Mr. Watkins' arrest warrant. (Resp., p. 3: 13-14). However, in its response to Mr. Watkin's motion to

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sever, it wrote, "On July 8, 2003, Henry Watkins was arrested at his home on a federal warrant by the Oro Valley Police Department. Watkins was found in possession of two firearms, one Beretta model 92F 9mm pistol, and the other a Ruger Mini-14, .223 caliber rifle." (Response to Defendant's Motion to Sever, Dkt. #1036, p. 11: 26-28). The exclusionary rule bars from trial physical, tangible materials, obtained, statements heard and observations made either during or as a direct result of an unlawful invasion of a person's home. Wong Sun v. United States, 371 U.S. 471, 485 (1963). Thus, anything officers saw or heard during or as a direct result of their illegal entry into Mr. Watkins' home on July 8, 2003 must be suppressed. The government argued that Mr. Watkins' statements are admissible. This is incorrect. Police wrote that, "On July 8, 2003, SA Ortiz interviewed Watkins at his Tucson residence after Watkins agreed to waive his constitutional rights per Miranda." (ROI785040-02-0049, Report #75, ¶3) The fact that Mr. Watkins was interrogated in his home after police violated the Fourth Amendment requires this court to preclude the government from using those statements at trial. The Court has repeatedly noted that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton, 445 U.S. at 586. The Court's decision in New York v. Harris, 495 U.S. 14 (1990) turned upon the fact that the defendant was questioned at the police station and not in his home. The government relied upon Harris in its response (Resp., p. 8; 8-17), but failed to disclose the critical fact that Mr. Watkins was questioned, not at the police station but in his home. (Resp., p. 2: 11-14; p. 3: 10-15; p. 7: 14-16 & 2228; and p. 8: 1-3 & 24-28). In Harris, the Court focused upon whether the interrogation took place inside or outside of the defendant's home. We hold that, where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. Harris, 495 U.S. at 21.

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New York police arrested Harris in his home without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980). Based upon the Fourth Amendment violation, the trial court suppressed the statements Harris made in his home and prosecutors did not appeal that ruling. The only issue before the Court was whether Harris' second statement, made at the station house, should have been suppressed by the trial court because of the violation of Payton. Harris, 495 U.S. at 16. The Court explained the rational for excluding Harris' statements made inside his home and not excluding those made at the station house. Rather, in this context, we have stated that "[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve." [Citation omitted] In light of these principles, we decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime. Harris, 495 U.S. at 17.

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In a more recent case cited by the government (Resp., p. 8: 4-8), United States v. Crawford, 372 F.3d 1048, 1055-1057 (9th Cir. 2004), the defendant's statements were not excluded because they were made at the FBI office and not in the home where the illegal detention had occurred. The Ninth Circuit found that the since police had probable cause to arrest Crawford, but the execution of the arrest violated the Fourth Amendment, Crawford's case was governed by Harris. Crawford, 372 F.3d at 1055. The Ninth Circuit held that, "Defendant's initial detention in his home does not require the suppression of his later statement at the FBI office." Crawford, 372 F.3d at 1057. In United States v. Ladum, 141 F.3d 1328, 1336-1337 (9th Cir. 1998), cited by the government (Resp., p. 8: 18-23), the search of a business was illegal because the search warrant provided insufficient guidance to the executing agents about what documents they could seize. There was "no dispute that the agents had probable cause to search and that a magistrate authorized it." Ladum, 141 F.3d at 1337. Agents were legally on the premises and no one disputed that. The defendant's statement, made as police executed the search warrant, were properly admitted because they were not the product of the illegality-the overbroad warrant. The government argued that the "officers had a valid federal warrant for Watkins' arrest and

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they were lawfully permitted to be in Watkins' residence for the purpose of effectuating his arrest." This is incorrect. The entire point of Mr. Watkins' motion is that the officers were illegally in his home. The officers violated the Fourth Amendment and 18 U.S.C. § 3109 by breaking and entering Mr. Watkins home. Thus, they were in his home illegally--in violation of the United States Constitution and 18 U.S.C. § 3109. The statements Mr. Watkins made in his home were a product of the illegality­the unlawful entry of police into his residence. New York v. Harris, Wong Sun, and Crawford require that those statements be suppressed. Conclusion Since the government does not argue that police violated Fourth Amendment and 18 U.S.C. § 3109 by breaking and entering Mr. Watkins home, an evidentiary hearing is no longer required. Mr. Watkins moves the court to issue an order precluding the United States from introducing at trial: 1. Any evidence seized from Mr. Watkins' home on July 8, 2003; and 2. Anything observed or heard in Mr. Watkins' home on July 8, 2003, including that Mr. Watkins was in possession of two firearms, one Beretta model 92F 9mm pistol, and the other a Ruger Mini-14, .223 caliber rifle; and 3. All of the statements Mr. Watkins made in his home on July 8, 2003. Respectfully submitted this 27th day of January 2006.

/s/ ______________________ CARMEN L. FISCHER PHILLIP E. HANTEL Attorneys for Henry Watkins

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