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

Case 1:08-cr-00056-GMS

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Filed 05/13/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DARRIN BURNS, Defendant.

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Criminal Action No. 08-56-GMS

DEFENDANT'S MOTION TO SUPPRESS PHYSICAL AND TESTIMONIAL EVIDENCE AND NOW comes the defendant, Darrin Burns, by his attorney Luis A. Ortiz of the Federal Public Defender's Office, and pursuant to the Fourth and Fifth Amendments of the United State Constitution, files this Motion to Suppress Physical and Testimonial Evidence. 1. Count One of the indictment charges that on or about March 14, 2008, defendant

Darrin Burns possessed with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). 2. Count Two charges that in furtherance of the drug trafficking crime alleged in

Count One, defendant knowingly possessed a firearm, in violation of 18 U.S.C. § 924(c). 3. Identifying the same firearm, Count Three charges possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). 4. The above charges arise from a warrantless search, seizure and arrest which

occurred on March 14, 2008.

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5.

The government has provided defense counsel with a copy of a Wilmington

Police report generated after the search, seizure and arrest of March 14, 2008. 6. Without stipulating to the facts alleged by the government, the police report and

the criminal complaint allege as follows: a. b. c. that police approached defendant on suspicion of loitering; that defendant fled when he saw police approaching; that defendant abandoned a gun, drugs and money while fleeing police; that police placed defendant under arrest; and that defendant was given his Miranda warnings, and thereafter confessed to possessing the gun, drugs and money.

d. e.

7.

Defendant moves to suppress the gun, drugs and money on the ground that they

were secured as the result of a warrantless search and seizure in violation of the Fourth Amendment. 8. Defendant moves to suppress the statements to police, on the ground they are the

tainted fruits of the Fourth Amendment violation, and on the ground that defendant did not knowingly and voluntarily waive his Fifth Amendment Miranda rights. 9. The Supreme Court has held that individuals do not have a reasonable expectation

of privacy in abandoned property, and that abandoned property is therefore outside the protections of the Fourth Amendment. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698 (1960). 10. When the government seizes evidence without a warrant, and seeks to justify the

seizure on grounds of abandonment, "[p]roof of intent to abandon property must be established by clear and unequivocal evidence." United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004).

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11.

In addition, when the government seeks to introduce inculpatory statements taken

while the defendant was in police custody, the government has the burden of proving that the defendant knowingly, voluntarily and intelligently waived his Fifth Amendment Miranda rights. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522 (1986). WHEREFORE, it is respectfully requested that an evidentiary hearing be scheduled, and that Defendant's Motion to Suppress Physical and Testimonial Evidence be GRANTED. Respectfully submitted,

/s/ Luis A. Ortiz Luis A. Ortiz, Esquire Assistant Federal Public Defender 704 King Street, Suite 110 Wilmington, Delaware 19801 (302) 573-6010 [email protected] Attorney for Defendant Darrin Burns Date: May 13, 2008

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N THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DARRIN BURNS, Defendant.

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Criminal Action No. 08-56-GMS

ORDER OF COURT AND NOW, this _______ day of _______________________, 2008, upon consideration of Defendant Burns' Motion to Suppress Physical and Testimonial Evidence, it is hereby ordered that the motion is GRANTED. The gun, drugs and money, and defendant's statements to police, are hereby ordered SUPPRESSED.

By the Court,

________________________________ Honorable Gregory M. Sleet Chief Judge