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

Case 1:07-cr-00103-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. STANLEY LUM, Defendant.

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Criminal Action No. 07-103-JJF

DEFENDANT'S SUPPLEMENTAL MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS Defendant, Stanley Lum, directs undersigned counsel, Edson A. Bostic, Federal Public Defender, District of Delaware, to file the herein Supplemental Motion to Suppress Physical Evidence. In support thereof, Mr. Lum avers as follows: 1. On or about September 7, 2007, the Defendant filed a Motion to Suppress Physical

Evidence and Statements.. 2. On or about December 17, 2007, the parties appeared before this Court for a hearing

on Defendant's motion to suppress. However, because of issues concerning the information placed in the search warrant affidavit, Mr. Lum requested that this Court allow additional time for the filing of a supplemental motion based upon Franks v. Delaware. 3. In the interim, Counsel has obtained additional police reports from the government

and has provided the Defendant with a copy of same and discussed those reports with him. Defendant now directs Counsel to file the instant motion based upon the following allegations:

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a.

the affidavit failed to include facts known to the Detectives that may have negated probable cause;

b.

the warrant affidavit contains intentionally misleading information, including that one of the subjects involved in a shooting incident stated "stop hanging in front of my moms house;"

c.

the victim informed police that he recognized the suspect who had shot him...[and] he knows that the suspect's mother lives at 3001 N. Madison Street;

d.

t the police intentionally failed to include in the warrant affidavit that the suspect told them the individual who shot him was a light-skinned, black male about 5'7", 120 lbs.

4.

Additionally, Defendant asserts that the affidavit in support of the search warrant

contained material misstatements and improper presentation of facts to support probable cause due to the fact that the affidavit for the search warrant neglected to state facts that would not have supported the issuance of a search warrant. 5. The government provided discovery and hand-written notes which includes some of

the information set forth above, but which conflicts with other information contained in other police reports. (A copy of this discovery is attached as Exhibits "A" and "B".) 6. Counsel is asking the Court to review Exhibits A and B, attached hereto, as well as

the warrant affidavit attached to the initial motion to suppress physical evidence and statements, so that it may determine whether a Franks hearing is required in this matter. 7. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held as follows: 2

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"where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 155-156. 8. In determining the sufficiency of an affidavit in support of a search warrant, a

"totality of the circumstances" standard is applied. United States v. Jewell, 60 F.3d 20, 23 (1st Cir. 1995). To assess whether a search warrant was legally issued, there must have been facts presented to a magistrate which rise to a level of probable cause when viewing the evidence under a totality of the circumstances analysis. Id. 9. The affidavit failed to establish the requisite probable cause as a matter of law to

support issuance of the search warrant, and the warrant to search 3001 N. Madison Street, Wilmington, Delaware, was issued in violation of Franks. Therefore, all evidence obtained from the search must be suppressed.

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WHEREFORE, Mr. Lum respectfully requests that this Court review the enclosed evidence and determine whether a hearing under Franks v. Delaware, is required. Respectfully submitted, /s/ EDSON A. BOSTIC Federal Public Defender Attorney for Stanley Lum Federal Public Defender's Office District of Delaware 704 King Street, Suite 110 Wilmington, DE 19801 (302) 573-6010 [email protected] Dated: January 22, 2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. STANLEY LUM, Defendant.

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Criminal Action No. 07-103-JJF

ORDER AND NOW, this ____ day of __________, 2008, upon consideration of the Defendant's Supplemental 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 or about July 2, 2007, and statements made by Defendant to law enforcement officials on or about July 2, 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, Jr. United States District Court Judge

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