Free Letter - District Court of Delaware - Delaware

. 2. Case 1 :07-cr-00136-JJF Document 15 Filed 01/O4/2008 Page 1 of 2
"` J I ',,,! , U.S. Department of Justice
1 _ United States Attorney ’s O]j‘ice
_ .»·· ¤·‘ District of Delaware
i Nemours Building l
1007 N Orange Street, Suite 700 (302) 573-6277
· A P. 0. Bax 2046 FAX (302) srs-6220
Wilmington, Delaware I 9899-2 046 _
_ ` ` January 4, 2008
The Honorable Joseph J. Farnan, Jr.
United States District Judge .
District of Delaware
United States Courthouse
844 North King Street, 4*}* Floor `
Wilmington, DE 19801 _
Re: United States v. Eric Holmes H
. Criminal Action N0. 07-136-JJF
Dear Judge F aman:
Pursuant to the Court’s order issued on December 17, 2007, in the case of United States v. F
Holmes, CA # 07-137 JJF, please accept this letter in lieu of a more formal response. The
government also incorporates its pre-hearing argument into this response by reference.
The evidence presented at the hearing supported that the stop of the defendant and the .
subsequent search of the vehicle were legal. The defendant presented no evidence to the contrary.
As to the stop, both officers testified that the defendant made several illegal turns in violation
of Delaware’s Motor Vehicle laws prior to being stopped. In addition, both officers knew and
verified that the defendant was driving the vehicle illegally on a suspended license. The officers had __
more than reasonable suspicion to have stopped the defendant for violating Delaware’s Motor
Vehicle laws. United States v. Dei§‘in—Coiina, 464 F.3d 392, 397-398, (3"d Cir. 2006)(Commission A
of a traffic violation justice a stop under the Fourth Amendment.) A
The search of the vehicle was also legal. The firearm was observed by Officer Kuscharski ij
_ in "p1ain view." Upon approaching the vehicle at night Officer Kuscharski shined his flashlight into
the interior of the vehicle to illuminate it for officer’s safety. Before speaking to the defendant or
having the occupants exit the vehicle, he spotted the firearm and signaled his partner. The firearm
was sighted prior to any conducted search. . E

` Case 1 :07-cr-00136-JJF Document 15 Filed O1/O4/2008 Page 2 of 2
Once the firearm was observed on the floor in the rear of the vehicle, all of the occupants
’ were removed and EDU was called. Officer Kuscharski’s testimony was supported by the testimony
g of Officer I-Iamdrick-. There was no testimony or evidence presented to the contrary.
The fact that the firearm was in "plain view" was also supported by the testimony of Officer
Parrott who interviewed the passenger in the rear seat just behind the driver. According to her
. testimony and consistent with that of the officers, just before the defendant stopped the vehicle he
turned in his seat (both officers testified the defendant turned and twisted in his seat just before he
U stopped the vehicle) and attempted to place the firearm under the seat in front of her. It landed on
the floor in front of her between her legs. The only minor discrepancy is that she stated at one point
the defendant placed the firearm tmder the seat in nent of her as compared to it being placed just
_ - behind the seat in front of her. Obviously and consistent with all the statements ofthe witnesses, the
E defendant just before stopping the vehicle, removed the firearm from his waist band and attempted
unsuccessfully to hide the firearm under the seat. He did not accomplish that feat and it landed just
behind him and in front of the rear seated passenger in "p1ain view.” lt is well—settled law that _
U "obj ects falling in the plain view of an officer who has a right to be in the position to have that view E
are subject to seizure and maybe introduced in evidence." Harris v. United States, 390 U.S. 234, 236
(1968); United States v. Belle, 593 F.2d 487, 400 (3rd Cir. 1979). ‘
All the testimony and evidence support that the defendant was legally stopped and the A
subsequent discovery of the firearm was the result of a “plain view "observation_by a well-trained j
police officer. Therefore, the Government having met its burden of proof by a preponderance of A
evidence, that the seizure and search ofthe defendant and his vehicle did not violate the defendant’s g
Fourth Amendment Rights, respectfully requests this Honorable Court to deny the defendant’s
motion 5-
- Thank you for your kind consideration. l
Sincerely, _
_ _ COLM F. CONNOLLY I ‘
· United States Attorney _ {
B 1
_ Martin C. Meltzer _
` Special Assistant United States Attorney
cc: Luis A. Ortiz, Esq. U U

Case 1:07-cr-00136-JJF

Document 15

Filed 01/04/2008

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Case 1:07-cr-00136-JJF

Document 15

Filed 01/04/2008

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