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

Case 1:07-cr-00106-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DAYWON DRUMMOND, Defendant.

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Criminal Action No. 07-106-JJF

DEFENDANT'S PRE-TRIAL MOTION TO SUPPRESS EVIDENCE AND STATEMENTS Defendant, Daywon Drummond , by and through his undersigned counsel, Luis A. Ortiz, hereby moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b)(3) and the Fourth and Fifth Amendments of the United States Constitution, for an Order suppressing for use by the government any and all evidence obtained as a result of the warrantless search of 507 E. 35th Street. As grounds for this motion, the defense submits as follows: 1. On or about July 10, 2007, a warrantless search of Daywon Drummond's bedroom

was conducted at 507 E. 35th Street, Wilmington, Delaware, by Kate Sweeney, who is Mr. Drummond's probation officer. A second probation officer was present during the search. 2. The probation officer alleges that she was conducting a routine home visit and asked

to see the defendant's room. The probation officer does not allege that she was there to execute an administrative search warrant.

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3.

Upon entering Mr. Drummond's bedroom the probation department alleges that Mr.

Drummond's body language was somehow suspicious and that he was not making eye contact. Mr. Drummond was patted down and no contraband was recovered. Mr. Drummond was asked twice if there were weapons in the room. On the second occasion, he allegedly stated there was a shotgun by his bed. 1 4. 5. During a warrantless search of the bedroom, a gun was found. Daywon Drummond was taken into custody after he allegedly made a number of

incriminating statements to the probation officers. 6. The defense contends that the search of 507 E. 35th Street, the items seized from

that residence, and any statements allegedly made by Mr. Drummond , were taken in violation of the United States Constitution.

7.

"A probationer's home, like anyone else's, is protected by the Fourth Amendment's

requirement that searches be `reasonable.'" Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (citation omitted). Although searches must generally be conducted pursuant to a warrant, the Supreme Court has permitted exceptions "when special needs, beyond the normal need for law enforcement, make the warrant and probable cause impracticable." Id. (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)). 8. A State's operation of a probation system meets the "special needs requirement," and

probationers have "conditional liberty properly dependent on observance of special [probation
1

The facts contained in this motion were taken from the Discovery. By including these facts in its pre-trial motion, the defense in no way concedes that events transpired as stated in the Discovery. It is the defense's position that an evidentiary hearing is needed to further develop the facts with regard to this motion through the adversarial process. 2

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restrictions]." Griffin, 482 U.S. at 873-74.

Accordingly, "probation officers may search a

probationer's residence based on a reasonable suspicion that the probationer is engaged in criminal activity therein." United States v. Bowers, No. CRIM.A 04-133 JJF, 2005 WL 1979142, at *3 (D.Del. Aug, 15, 2005). 9. In Bowers, the court summarized the Supreme Court's reasonable suspicion standard, and explained: Generally, for a suspicion to be reasonable, an officer must be able to articulate specific facts that support the suspicion, and thus, justify the intrusion. `Anything less would invite intrusion upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.' In evaluating whether a particular search was reasonable, `it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure `warrant a man of reasonable caution in the belief that the action taken was appropriate?" Id. at *4 (citations omitted). 10. In this case, the officers did not have reasonable suspicion to conduct the search of

Mr. Drummond's home. The officers had no information indicating that Mr. Drummond was involved in any new illegal criminal activity. There was no indication of criminal behavior, and thus, the search was in violation of Mr. Drummond's Fourth Amendment rights. 11. Mr. Drummond also submits that any alleged statements made during, or subsequent

to, his illegal search and seizure should be suppressed pursuant to the Fifth Amendment and Miranda v. Washington, 384 U.S. 436, 444 (1966) (stating that a suspect subjected to custodial interrogation must be advised of his rights prior to making a statement); see also Wong Sun, 371 U.S. 471 (stating that evidence from an illegal search must be suppressed in accordance with the "fruit of the poisonous tree doctrine"). 12. Mr. Drummond reserves the right to file a Memorandum of Law in support of his Motion 3

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to Suppress Physical Evidence and Statements after the completion of a hearing in this matter.

WHEREFORE, the defense respectfully requests that this Court conduct a hearing to further develop the facts related to this motion and subsequently enter an order to suppress the evidence as discussed above.

Respectfully Submitted,

/s/ Luis A. Ortiz, Esquire Assistant Federal Public Defender Attorney for Defendant Daywon Drummond

One Customs House 704 King Street, Suite 110 Wilmington, Delaware 19801 302-573-6010 [email protected]

DATED:

September 14, 2007

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DAYWON DRUMMOND, Defendant.

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Criminal Action No. 07-106-JJF

ORDER AND NOW, this ____ day of __________, 2007, upon consideration of the Defendant's Motion to Suppress Physical Evidence and Statements, and the Government's response thereto, it is hereby ORDERED that the Motion is GRANTED. All physical evidence seized by law enforcement officials on ________,___ 2007, and statements made by Defendant to law enforcement officials on ______ ___, 2007, are hereby SUPPRESSED. Such physical evidence and statements shall be inadmissible, for any purpose, by the Government.

BY THE COURT:

Honorable Joseph J. Farnan United States District Court Judge