UNITED STATES DISTRICT COURT

_______________DISTRICT OF TEXAS

_______________ DIVISION

UNITED STATES OF AMERICA	                §
                                                                            §
V.	                                                                §		NO. ______________
                                                                            §
_________________	                                        §	

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO SUPPRESS

TO THE HONORABLE __________________, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ______________ DISTRICT OF TEXAS:

	NOW COMES Defendant ________________, by and through his undersigned attorney, and files this brief in support of his motion to suppress the physical evidence and oral and written statements obtained as a result of the unlawful stop of his vehicle.  In support of his motion to suppress, the Defendant would show this Honorable Court as follows:
I
The Suppression Hearing
	On February 7, 2002, a hearing was held on Defendant’s Motion to Suppress.  The Government offered the testimony of two witnesses:________________, and ___________________.  The defense called _____________________.  The following details of the stop of _________ vehicle were provided from the witness’s testimonies and from the exhibits introduced at the hearing.  
	On November 21, 2000, the home of ______________ was under surveillance by the Dallas police.  (Tr. 2, 14.)1  Prior to setting up the surveillance, the police had obtained an arrest warrant for _______ based on his suspected commission of a robbery. (Tr. 2, 3, 5, 18.)    While watching the home, the detective saw other people present.  (Tr.  2.)  At one point several men, including_________, left the home.  (Id.)  ______________, along with two other men left in a Cadillac, with ______________ driving.  Four other men left in a Buick.  (Id.)  
	______________ testified that none of the officers recognized any of the men other than ______________.  (Tr. 18–19.)  He also stated that other people were involved in the robbery of which ______________ was suspected, but he acknowledged that he had no specific information linking ______________, or the other men present, to the robbery.   (Tr. 18–19, 28–29.)  Dallas Police Detective ______________, who had been present during the surveillance of ______________’s home, confirmed that the officers had no other information on any specific person other than ______________.  (Tr. 50–51.)
	After the vehicles left ______________’s home, Detective ______________s, who had been participating in the surveillance, radioed uniformed police in marked patrol units and instructed them to follow the vehicles and stop them. (G-1; Tr. 3.)2  Detective ______________ testified that the order was to follow the vehicles and make a traffic stop, if there was a violation of a traffic law.  (Tr.  17.)  After ______________ heard the radio call, he proceeded in the direction of the vehicles, catching up to them about a half mile from ______________’s home. (Tr. 13–15.)
	______________ observed ______________’s vehicle, the Cadillac,  being stopped on the highway.  (Tr. 3–4.)  The Buick proceeded down the highway and eventually exited onto a side street.  (Id.)  ______________ observed a uniformed police officer stop the Buick, which had pulled into a parking lot.  (Id.)  ______________ testified that the Buick was pulled over for a violation–an expired license plate, and that the violation was an arrestable offense.  (Id.)  ______________ was not the officer who conducted the traffic stop, nor was he the detective who ordered that the traffic stop be made.  (Tr. 16, 20.)  The officer who stopped the Buick, Sargent ______________, did not testify at the hearing.  ______________ testified that ______________ probably saw the Buick’s expired plate when he pulled-up behind the vehicle.  (Tr. 20.) 
	After ______________ stopped ______________, the driver of the Buick, the officer conducted a computer check for outstanding warrants, and found that ______________ had two outstanding traffic violation tickets.  (Tr. 7.)  ______________ testified that ______________ was arrested for the outstanding warrants and the license plate, which was four days expired. (Id.)  ______________ was advised that he was arrested for the outstanding warrants.  (Tr. 25.)
	After ______________ was arrested, the vehicle was searched and various items were found at around 1:50 p.m.  (Tr. 6–7, 23.)  The Buick was impounded, and at around 6:45 in the evening ______________ signed a consent to search the vehicle.  (Tr. 7–8, 23–24.)  The Government introduced into evidence a diagram showing what items were found in the vehicle and their location. (G-1; Tr. 9–10.)
	______________ was taken to a police substation  (Tr. 10.)  ______________ was aware that the Texas Rangers and ATF were coming to talk to ______________, so ______________ was placed in an interview room for that purpose.  (Tr. 10.)  ______________ was continuously held in custody for at least eight hours.  He was unrepresented by counsel. (Tr. 33.)  During that time, ______________ was questioned by at least three different law officers: Sargent______________, of the Coppell Police Department, Texas Ranger ______________, and ATF agent ____________. (G-3; Tr. 31–35.)3  
	As a result of his repeated interrogations, ______________ made incriminatory oral statements.  (Id.)  At some time prior to 5:30, ______________ signed an incriminatory written statement prepared by Sargent ______________; at approximately 5:30 p.m., ______________ signed an incriminatory written statement prepared by _____________.  (G-3; Tr. 36–39.)  At approximately 10:15 p.m. and 10: 25 p.m., ______________ signed incriminatory written statements prepared by Agent ________________.  (Id.)  ______________ signed a waiver of rights form, however he specifically crossed-out the form’s references to the words “voluntary,” and “free” will. (G-2; Tr. 32.)4
II
Argument and Authorities
	The Fourth Amendment protects individuals from unreasonable search and seizure.  United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001).  A traffic stop is considered a seizure within the meaning of the fourth amendment.  Id.  Traffic stops are considered more similar to investigative detentions than formal arrests.  Id.  Therefore, courts analyze the legality of a traffic stop for Fourth Amendment purposes under the standards articulated in Terry v. Ohio, 392 U.S. 1 (1968).  Id.   This standard is a two-tiered inquiry: 1) whether the officer's action was justified at its inception by reasonable suspicion, and 2) whether the ensuing police conduct was reasonably related in scope to the circumstances which justified the initial stop.  Id.; see also United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993) (quoting Terry, 392 U.S. at 19).  In this case, the officer’s  stop of ______________ was not justified by reasonable suspicion, nor was the ensuing search and seizure reasonably related in scope to any circumstances purportedly justifying the initial stop.
III
The Government Failed To Prove that the Detectives who Ordered ______________’s Stop Had Reasonable Suspicion
	A police officer may stop a person to investigate him, if the officer has a reasonable belief that the person has been, is, or is about to become, involved in criminal activity.  See, e.g., Terry, 392 U.S. at 21;  United States v. Hensley, 469 U.S. 221, 227–29 (1985).  A reasonable belief is one based on more than “an inchoate and unparticularized suspicion or ‘hunch.’” United States v. Brown, 159 F.3d 147, 149 (3rd Cir. 1998) (quoting Terry, 392 U.S. at 27).  To make a valid stop, an officer must have specific, articulable facts that relate to the particular individual stopped.  Terry, 392 U.S. at 21 & n.18.   When the Government searches or seizes a defendant without a warrant, it bears the burden of proving that the search or seizure was based on probable cause or reasonable suspicion.  See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001).  
	In this case, the Government has failed to meet its burden of proving that the detectives who ordered ______________’s stop had probable cause or reasonable suspicion to believe he was involved in criminal activity.  Detective ______________ testified that  ______________, who was the subject of an arrest warrant,  was the only person the officers recognized.  The officers did not have any particular basis for suspecting that the other men were involved in any criminal activity, other than that they were present with ______________ at his home.  A person’s mere presence with a person upon whom an arrest warrant is being executed has never been deemed sufficient to satisfy the requirement of Terry.  United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980); see also United States v. Harvey, 897 F.2d 1300, 1304 n.2 (5th Cir. 1990) (reaffirming, in dicta, the result in Cole).5  
	In this case, the only thing the officers specifically knew about ______________ was that he was present with a suspected felon.  This is insufficient to support a finding of probable cause or reasonable suspicion.  While ______________ testified that other people were involved in the robbery in which ______________ was suspected, he acknowledged that the officers had no physical description or other specific information linking ______________ or any of the other men to the robbery.  Reasonable suspicion must be based on more than an unparticularized hunch,  Terry, 392 U.S. at 27, and to make a valid stop, an officer must have specific, articulable facts that relate to the particular individual stopped.  Terry, 392 U.S. at 21 & n.18.  The fact that others were involved in the robbery allegedly committed by ______________ does not, without more, support a reasonable suspicion that those found with him were the ones involved. Cf. United States v. Bell, 762 F.2d 495, 501 (6th Cir. 1985) (reasonable suspicion to frisk the appellant existed when he was stopped in vehicle with arrestee, he  refused to put his hands on dashboard when instructed to do so by officer, and he fit the description of an unidentified suspect involved with the arrestee in a food stamp offense).  In this case, there was not even a general description identifying ______________ as one of the men involved with ______________ in the alleged robbery.  (Tr.  18–19, 50–51.)
	Dallas Police Detective _________, who had been present during the surveillance of ______________’s home, confirmed that, at the time the men left ______________’s home, there was no particular basis for suspecting that any of the men, other than ______________, was involved in the robbery.  (Tr. 50–51.)  Nevertheless, after the men left ______________’s home, the detectives radioed a marked Dallas patrol unit and instructed that both vehicles be followed.  (Tr. 21–22.)  ______________’s testimony suggests that the officers did not believe that they had reasonable suspicion to stop ______________; ______________ testified that the marked patrol units were radioed and instructed to make a “traffic stop” if there was a violation of a traffic law.    (Tr. 17.)  If the officers had a reasonable belief that ______________ was involved in criminal activity, they would not have felt the need to justify the stop by requiring the violation of a traffic law.  
IV
The Government Failed To Prove that the Officer Stopped ______________ for Violating a Traffic Law
	The Government did not meet its burden to prove that ______________ was stopped for violating a traffic law.  Although the arrest report says that ______________’s vehicle had a license plate that was four-days past its expiration date, there is no evidence that the stop was  based on the expired  plate.  (G-1.)   The uniformed officer who made the stop did not testify.  Detective ______________ could at most speculate that the officer “probably” saw the expired plate when he pulled-up behind ______________.  (Tr. 20.)  This speculation is insufficient.  The fact that a car had an expired license plate is irrelevant to the reasonable suspicion analysis, unless it can be shown that the expired plate was the basis for the stop.  Such a showing is not supported by the record. 
	However, even if the Court finds that the stop was based on the expired plate, this still would not justify the search and seizure that ensued.  Under Texas law, driving a vehicle with a licence plate that has only been expired for four days is not an offense.  See Tx.Transp.Code § 502.407 (Supp. 2002) (a person commits an offense if, after the fifth working day after the date the registration for the vehicle expires, the person operates the vehicle on a public highway).  Because the expired plate was still within the five-day grace period provided under the law, the stop, the ensuing computer check revealing ______________’s outstanding traffic warrants, and the subsequent search cannot be justified by the expired plates.  See United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999) ( an officer’s subjective, but incorrect, belief that a motorist is in violation of state traffic laws is insufficient to justify a stop of a vehicle) see also United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (“[W]here the supposed traffic infraction that formed the basis for the vehicular stop in fact was not a violation of state law, there [is] no objective basis for probable cause justifying the stop.”).  Accordingly, the Court should hold that ______________’s Fourth Amendment rights were violated by the warrantless stop.
V
The Evidence and the Oral and Written Statements Obtained Should Be Suppressed as Fruit of the Unlawful Stop.
	The physical evidence obtained from ______________ and his vehicle after the unlawful stop and the statements that ______________ made after his arrest were products of the improper detention. Under the “fruit of the poisonous tree” doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the Government shows a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 602–04 (1975); Wong Sun v. United States, 371 U.S. 471, 484–88 (1963). To determine whether the taint of the violation has been sufficiently attenuated, the Court considers all of the circumstances, but accords special attention to three factors: “(1) the temporal proximity of the violation and the discovery; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.” Brown, 422 U.S. 590,  603–04. Here, all three factors weigh in favor of suppression. 
	The officer’s search of ______________’s vehicle, through which he discovered several items of physical evidence, followed closely upon the improper stop.  In fact, Detective ______________ who arrived on the scene simultaneously to the stop, and who was in charge of conducting a search at the arrest scene, testified that the search took place no more than twenty or twenty-five minutes from the time the Buick left ______________’s home.  (Tr. 23.)  The detention's investigatory purpose, its temporal immediacy to the search, and the lack of any intervening circumstances require that the evidence obtained from the search of the car must be suppressed.
	After his arrest, ______________ was continuously held in police custody for several hours and he was unrepresented by counsel.  During this time, ______________ was repeatedly interrogated by at least three different state and federal law enforcement officers, about matters totally unrelated to the traffic violations for which he was purportedly arrested.  ______________ made incriminatory oral statements to the police.  The officers used those statements to draft written statements that ______________ signed.  Statements obtained as the result of the exploitation of an illegal seizure must be excluded, unless the Government shows that the statements were “‘sufficiently an act of free will to purge the primary taint’” of the Fourth Amendment violation.  Brown, 422 U.S. 590, 602 (quoting Wong Sun, 371 U.S. 471, 486); see also Taylor v. Alabama, 457 U.S. 687, 690 (1982) (Government bears the burden of showing that confessions are admissible).  Evaluation of ______________’s statements in the light of the Brown factors demonstrates that the statements were not freely given.
	______________’s statements followed closely upon the improper detention.  He made uncounseled oral statements shortly after his arrest. These oral statements formed the basis of the written statement that ______________ signed within a few hours of his arrest.  The short time span, ______________’s continued confinement without representation or advise from counsel, and the fact that he was repeatedly subject to interrogation by at least three different state and federal law enforcement officers weighs in favor of a finding that the statements were tainted by the illegal detention. See Taylor v. Alabama, 457 U.S. 687, 691 (1982) (statements made six hours after improper arrest were tainted, where petitioner was in police custody, unrepresented by counsel, and questioned on several occasions).
	The events that occurred between the detention and the giving of the statements also favor a finding that the statements were tainted.  Although he was  advised of his Miranda rights, ______________ purposefully crossed-out the language suggesting that his statements were freely given.  It is important to note that Miranda warnings do not, by themselves, cure the taint of the Fourth Amendment violation. Brown, 422 U.S. 590, 602–03; Taylor, 457 U.S. 687, 691.   Here, even though Miranda warnings were given, ______________’s actions in excising “voluntary” and “free” from the consent form, coupled with his prolonged detention and the lack of other intervening circumstances negates any argument that the Miranda warnings cured the taint of the Fourth Amendment violation.
	Finally, the investigatory stop was purposeful and flagrant.  It’s undisputed that the detectives who had been watching ______________’s home wanted both of the vehicles followed and stop.  It is also clear from Detective ______________’s testimony that he ordered the uniformed officer to use the pretext of a traffic violation to make a warrantless stop of ______________.  The violation of ______________’s Fourth Amendment rights was flagrant.  Stopping a suspect without probable cause or reasonable suspicion is the very sort of law enforcement behavior that the exclusionary rule is meant to discourage.   In conjunction with the other Brown factors, this flagrancy requires suppression of the oral and written statements and the physical evidence obtained from the search of ______________ and his vehicle.6
 	For this reason,  Defendant respectfully moves this Honorable Court to grant Defendant’s Motion for Suppression of the physical evidence and the oral and written statements obtained as a result of his unlawful stop.
						Respectfully submitted.
						_________________________
						Attorney for Defendant
CERTIFICATE OF SERVICE
	I hereby certify that I served a copy of the foregoing Brief in Support of his Motion to Suppress on ______________, United States Attorney for the __________ District of Texas (ATTN: Assistant U.S. Attorney _____________), by mailing it to his at _______________, on _________________________.

						Attorney for Defendant

UNITED STATES DISTRICT COURT
______________ DISTRICT OF TEXAS
___________________ DIVISION

UNITED STATES OF AMERICA	               §
§
V.	                                                          §		NO. _______________
                                                                             §
 ______________	                                         §	

O R D E R

	On this date came on to be considered Defendant’s Motion for to Suppress Physical and Oral and Written Statements is GRANTED.
	It is hereby ORDERED that all evidence obtained as a result of the Defendant’s unlawful stop be excluded from the trial of this cause.  These items include all physical evidence obtained from the search of ______________ and ______________’s vehicle, detailed in Government’s Exhibit 1.  
	These items also includes the oral and written statements made to Dallas police officers, Texas Ranger ___________, and ATF agent ____________ as a result of the interrogations of ______________ made while in custody after his illegal stop.
	ORDERED on this the                    day of                                        .

						                                                               

						United States District Judge