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

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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 MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS

Defendant, Stanley Lum, by and through his undersigned counsel, Edson A. Bostic, Federal Public Defender for the District of Delaware, 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 the Government's use of any and all evidence obtained as a result of the illegal seizure and Mr. Lum's arrest on or about July 2, 2007, including all statements made during, or subsequent to, the illegal seizure and arrest. In support of this motion, Mr. Lum submits as follows:1 1. On June 30, 2007, Wilmington police officers responded to a shooting in the area of

30th and North Madison Streets in the city of Wilmington, Delaware. Upon arrival, the officers found

The facts contained in paragraphs 1-8 of this motion were taken from the Discovery. Mr. Lum cites these facts in his motion, but does not concede that the events transpired as stated by the arresting officers. Additionally, Mr. Lum notes that the discovery, which has been redacted, may contain additional information not included in this motion. Mr. Lum submits that an evidentiary hearing is needed to further develop the facts, which are determinative of this motion.

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a male witness, and a male victim that had been shot in the hip. 2. According to the officers, the witness stated that he and the victim were walking in

the area of 30th and North Madison Street and saw two individuals arguing in the street. Although the nature and sequence of events is not clear from the discovery, one of the individuals subsequently removed a gun from his waistband and fired approximately nine rounds in the direction of the witness and victim as they attempted to flee the scene. One of the rounds struck an individual in the hip, and officers found nine bullet casings and several bullet fragments at the scene. 3. Although not clear from the discovery, officers later interviewed the shooting victim,

who provided a similar description of the shooting, and stated that he recognized the suspect but did not know his name. The victim stated that the suspect's mother lived at 3001 N. Madison Street in Wilmington, Delaware, and that he had previously seen the suspect in front of that house. The victim also provided a description of the suspect. 4. After performing a public records check, officers discovered that Renee Payne was

the owner of the residence, and that the residence's telephone number was registered to Ms. Payne and to Mr. Lum. Officers conducted a DELJIS record check and discovered that Ms. Payne was Mr. Lum's mother. The police did not locate any other individuals that resided at the residence. 5. Officers applied for, and received, a search warrant for the residence based upon these

facts. Specifically, the search warrant identified the following property: (1) a .40 caliber firearm or ammunition; (2) any picture, identification, mail, papers, or other materials related to the possible identity of the owner's children; and (3) "the body of Stanley Lum DOB 02/09/85 for current photographs and/or fingerprints." (A copy of the search warrant is attached hereto as Exhibit "A".) 6. On July 2, 2007, officers executed the search warrant and found Julian Fisher in a 2

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second-floor front bedroom. Officers secured Mr. Fisher, who was lying in bed, without incident, the officers alleged that they saw a clear, plastic ziplock bag containing numerous small, purple ziplock bags and Mr. Fisher's State of Delaware Department of Correction identification in plain view. Officers further alleged that they found a clear, plastic bag containing several large pieces of an off-white chunky substance, which later field tested positive for cocaine. Officers also alleged that they recovered clear plastic bags from under a couch and, a "Myweigh" digital scale that was sitting on top of the dresser. Finally, the officers also, allegedly found sandwich bags, latex gloves, a ceramic plate with a razor blade and a large piece of an off-white chunky substance in the dresser's drawer. 7. Officers found Mr. Lum sleeping in the middle second-floor bedroom, and claimed that

he was tasered and taken into custody following a struggle. Officers alleged that they recovered a small ziplock bag containing a green, plant material from the bed in which Mr. Lum had been sleeping. Officers further alleged that they recovered a clear, plastic baggie with 23 baggie corners containing an off-white chunky substance, a ceramic plate with suspected cocaine residue, razor blades, green and white plastic baggies and two identification cards from a dresser in the bedroom. Officers also alleged that they recovered a loaded Harrington and Richardson model 732 six shot revolver, a .32 caliber Smith & Wesson revolver, box of rounds from a shaving kit near the dresser, and a plastic baggie with an off-white chunky substance from a coat that was hanging on a closet door in the bedroom. The suspected illegal drugs field tested positive for marijuana and cocaine. 8. Officers alleged that in a taped, post-Miranda statement, Mr. Lum admitted to being

a convicted felon, possessing the firearms, ammunition and illegal narcotics, and to selling drugs. 9. On July 24, 2007, Mr. Lum was indicted for: (1) knowingly possessing with the intent 3

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to distribute more than five grams of a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) knowingly carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) knowingly possessing a firearm in and affecting interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 10. Herein, Defendant alleges that the warrant affidavit lacked probable cause, and that

the alleged statement taken from Mr. Lum violated his rights under the Constitution and Miranda v. Washington, 384 U.S. 444(1966). 11. The Fourth Amendment protects "the right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures." See U.S. CONST. Amend. IV. There is a presumptive requirement that searches and seizures must be carried out pursuant to a warrant. See Katz v. United States, 389 U.S. 347, 357 ("[S]earches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.") (internal citations omitted). 12. "One's home is sacrosanct, and unreasonable government intrusion into the home is

`the chief evil against which the wording of the Fourth Amendment is directed.'" United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002) (quoting Payton v. New York, 445 U.S. 573, 585 (1980)). In Zimmerman, the Third Circuit stated that the Fourth Amendment prohibits a general warrant, and that the magistrate must determine that there is a "fair probability that . . . evidence of a crime will be found in a particular place." Id. at 432 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The Court further stated that the "warrant must also describe things to be seized with sufficient 4

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particularity and be `no broader than the probable cause on which it is based.'" Zimmerman, 277 F.3d at 432 (quoting United States v. Weber, 923 F2d 1338 (9th Cir. 1991). See also Steele v. United States, 267 U.S. 498 (1925) (stating that a search warrant should leave "nothing . . . to the discretion of the officer executing the warrant."). Thus, the Fourth Amendment requires that probable cause must exist for each item listed in a search warrant, and each item must be particularly described. United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars, 307 F.3d 137, 148 (3d Cir. 2002). 13. Initially, based upon the totality of the circumstances, no probable cause existed for

the issuance of the warrant. The information contained in the warrant affidavit, failed to establish a fair probability that evidence of a crime or the defendant would be found in the place identified. United States v. Zimmerman at 432. 14. Here, the search and seizure, moreover, exceeded the scope of the search warrant,

which authorized the seizure of a .40 caliber firearm or ammunition, pictures or identification related to the identity of the residence owner's children, and Mr. Lum, for current photographs and/or fingerprints. Upon the discovery of suspected drug paraphernalia, the officers should have obtained an additional search warrant to expand their search for suspected drugs, and a reasonable officer would have known that the search of the room and seizure of evidence described above, went beyond the permissible scope of the search warrant. Because the officers' seizure of this evidence violated the Fourth Amendment, all such evidence must be suppressed in accordance with the "fruit of the poisonous tree doctrine" expressed in Wong Sun v. United States, 371 U.S. 471 (1963). 15. Mr. Lum further submits that any alleged statements made during, or subsequent to,

the illegal seizure and his unlawful arrest should be suppressed pursuant to the Fifth Amendment and 5

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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). 16. Mr. Lum reserves the right to file a Memorandum of Law in support of his Motion

to Suppress Physical Evidence and Statements after the completion of an evidentiary hearing in this matter. WHEREFORE, Mr. Lum respectfully submits that this Court conduct an evidentiary hearing to further develop the facts related to this motion and enter an Order suppressing the Government's use of any and all evidence obtained as a result of the illegal seizure and arrest on or about July 2, 2007, including all statements made during, or subsequent to, the illegal seizure.

Respectfully submitted,

/s/ Edson A. Bostic Edson A. Bostic Federal Public Defender Attorney for Stanley Lum 704 King Street, Suite 110 Wilmington, DE 19801 [email protected] (302) 573-6010 Dated: September 7, 2007

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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 __________, 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 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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