UNITED STATES DISTRICT COURT
______________ DISTRICT OF TEXAS
________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO.
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DEFENDANT’S MOTION TO SUPPRESS WITH 
INCORPORATED MEMORANDUM OF LAW IN SUPPORT

TO THE HONORABLE _________________, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ____________ DISTRICT OF TEXAS:
		
	Defendant _______________, by and through his undersigned attorney, moves to suppress all physical evidence and oral statements obtained as a result of a warrantless, unlawful search.
I.  INTRODUCTION
	San Antonio Police Department arson investigator, _________ was investigating an arson that had occurred at an apartment complex. As part of his investigation, ___________ had sought consent to search a specific apartment unit. ___________ and ____________ had been living together at the apartment. __________  approached _________, the person listed as the tenant on the unit’s lease, to request her consent to search. ________ informed __________ that she was no longer living at the apartment, but that he could search it.  She further informed ______ that ________________, defendant herein, was still living in the apartment with her permission.  Upon conducting the search, ________ found a firearm and a silencer. _________  requested the assistance of ATF Agent __________, who went to the apartment and identified the firearm and silencer.   As a result of the items discovered during the search, _______ interviewed _________.  According to the criminal complaint, ___________ admitted to bringing the firearm and silencer into the apartment, but he denied ownership of the items. ____________ has been charged in a two-count indictment with being a felon in possession of a firearm and a silencer.  He argues that the law enforcement officers who conducted the search of the apartment lacked a warrant or valid consent to search.  He moves to suppress the evidence found as a result of the unlawful search of the apartment, as well as any fruit from the unlawful search, including statements he made to law enforcement officers.
 	II.
MEMORANDUM OF LAW IN SUPPORT
	It is well established that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless they fall within one of several recognized exceptions.  Katz v. United States, 389 U.S. 347, 357 (1967).  One exception to the warrant requirement is when voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises.  Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)(citing United States v. Matlock, 415 U.S. 164, 171 (1974)).  When a third party consents to a search of property owned by another, the consent is not valid unless “the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.”  United States v. Jenkins, 92 F.3d 430, 436–38 (6th Cir. 1996)(quoting. Rodriguez, 497 U.S. 177, 188 (other citations omitted)). The critical facts are not the actual relationship between the consenter and owner, but how that relationship appears to the officer who asked for consent.  Jenkins  92 F.3d 430, 436.  The burden of establishing common authority to consent rests upon the prosecution.  Rodriguez, 497 U.S. 177, 181.  
	For the warrantless search to be valid pursuant to ____________ consent, the Government has to demonstrate that the facts available to ____________ warranted his belief that _____ and ______________ "mutually used the property. . . and had joint access to and control of it for most purposes.”  See United States v. Jaras, 86 F.3d 383, 389 (5th Cir. 1996) (discussing requisite showing to establish common authority to consent); Matlock, 415 U.S. 164, 171 n.7 (same); United States v. Jenkins, 92 F.3d 430, 436–38 (6th Cir. 1996)(same).  The Government cannot sustain its burden in this case.  
	____________ lacked authority to consent to the search of her former apartment.  She clearly indicated to _________ that she no longer mutually used the apartment when he sought to obtain her consent.  See Rodriguez, 497 U.S. 177, 181–82 (former co-tenant who moved out month before consenting to search lacked authority to consent);1 see also United States v. Chaidez, 919 F.2d 1193 (7th Cir. 1990) (where woman said she did not live in house and was only there to do laundry, and said “she had rented the property for her father,” which suggested sub-lease situation, no apparent authority to consent).  There were no facts from which Tedford could reasonably conclude that Rails continued to mutually use the property.  The mere fact that _____________name appeared on the lease did not give her authority to consent to a search. While the leasehold may have given ______ a property interest in the apartment, perhaps even some limited right to enter, this was not sufficient to establish common authority.  See Matlock, 415 U.S. 164, 171 n.7  (common authority not implied from mere property interest third party has in property); see also Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to search of  house he had rented to another).  While it might be a reasonable “default assumption” that a person listed as a tenant on a lease has authority to consent, when the person explains that they are no longer living there, this additional information changes the context  in “such a manner that no reasonable officer would maintain the default assumption.”  See Jenkins, 92 F.3d 430, 437. 
	 Under the facts known to ________ at the time of the purported consent, _______ lacked the type of mutual use of the property to validly consent to the search.  Thus, the purported consent upon which ________  and __________ relied in searching the apartment was invalid.  Because there was no valid exception to the warrant requirement that allowed the officers to conduct the search, the evidence must be suppressed as a fruit of the unlawful search.  Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). 
PRAYER
	WHEREFORE, premises considered, ____________ prays this Honorable Court will set this motion for a pretrial evidentiary hearing and thereafter suppress from use at trial the fruits of the illegal search and seizure, including any statements of ___________, any sense impressions perceived by the officers, and all other physical evidence thereby discovered as a result of this unlawful search and seizure. 	

						____________________________________
						Attorney for Defendant

CERTIFICATE OF SERVICE
	I certify that I caused to be served a true and correct copy of the foregoing Motion to Suppress with Incorporated Memorandum of Law in Support, on the United States Attorney for the _____________ District of Texas (Attn: Assistant United States Attorney ___________) by courier it to her office at _____________________________, on ____________, 20_____. 

						
						Attorney For Defendant

UNITED STATES DISTRICT COURT
__________ DISTRICT OF TEXAS
_________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. ________________
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____________________	                             §	

O R D E R

	On this date came on to be considered  Motion to Suppress, and the Court having heard evidence adduced thereon is of the opinion said motion should be GRANTED.
	It is therefore ordered that the following evidence be, and it is hereby suppressed upon trial of this case:
	1.  Any oral and written statements made by _____________ to law enforcement officers after the search of the apartment at  __________________________.
	2.  Any and all evidence obtained directly or indirectly, through the unlawful search of the apartment at ____________________________.
	So ORDERED on this the                      day of __________, 20____

						
						United States District Judge