UNITED STATES DISTRICT COURT
__________ DISTRICT OF TEXAS
______________ DIVISION

UNITED STATES OF AMERICA,	                 §
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V.	                  §	Criminal Action 
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DEFENDANT’S MOTION TO SUPPRESS
WITH INCORPORATED MEMORANDUM OF LAW IN SUPPORT

	NOW COMES _____________________, by and through his undersigned attorney, and files this  Motion to Suppress with Incorporated Memorandum of Law in Support, and would show this Honorable Court as follows:
I
STATEMENT OF FACTS
	On March 21, 2001, San Antonio Police Officers assisted ___________________, an officer with ____________________, in the execution of a search and arrest warrant at ____________________  (See App. A.)1 The warrant had been procured by Officer ______________, after he learned that ________________ had purchased a radio from a San Antonio pawnshop.  In order to obtain the warrant, _______________ executed an affidavit.  (See App. B.)2  In his affidavit, ____________ alleged the following:  
That on March 20, 2001, __________ had talked with _____________, who told him that he had been contacted by a  person who identified himself as _____________.  According to ____________, ______________ told him that he had a two-way radio that belonged to ______________ that he had purchased at a pawnshop. ____________ told ____________ that he wanted to have the radio reprogrammed.  ___________ allegedly told ______________ that he would not reprogram the radio, because the radio was probably stolen. 
Officer ___________ called the phone number which ______________ had given to _____________. ______________ explained to _______________ that the two-way radio he had purchased from the pawn shop was stolen, and that if _________ would return it, he would be given a case number so that he could get reimbursed for his loss. _________ replied that he had already invested money in reprogramming the radio, and he was going to keep it.  
Further police investigation revealed that ________________, had in fact, purchased the radio at E-Z pawnshop in San Antonio, and that ________________ had called the pawn shop after speaking to _________________.  ________________ spoke with _________________, an employee of the pawnshop, and he inquired about the radio he had purchased.  Detective ________________ was in actual possession of proof that the radio was originally purchased by _________ in June 2000.
	The affidavit does not contain any information which would suggest that ________________, either at the time of purchase or at the time that he spoke with _____________, was informed by the pawn shop that the radio was stolen.  Nor does the affidavit claim that the radio was ever reported stolen by the ______________.  Nonetheless, the officer represented in the affidavit that  ________________ had committed the offense of theft, in violation of the Texas Penal Code.
	The warrant was executed by Officer ______________ and others.  According to the incident report: forced entry was made; the officers entered and ________________ was secured without incident; upon entering the bedroom, the officers discovered a firearm next to the bed.  
	Mr. ________________ challenges the Magistrate’s conclusion that the affidavit supported a finding of probable cause to search and arrest.  He also challenges the manner in which the warrant was executed.  ________________ seeks the suppression of all evidence found as a result of the search and arrest and also the suppression of any fruits thereof, including statements made by ________________, the results of testing done on any physical evidence obtained, and any other objects or statements or reports derived from the unlawful search.
II.
AUTHORITIES AND ARGUMENT
	Basic to an individual’s rights under the Fourth Amendment is the principle that the Government may not conduct a search or seizure without a warrant supported by probable cause.  The exclusionary rule guarantees this principle by prohibiting the introduction into evidence of tangible materials seized during an illegal search.  See Murray v. United States, 487 U.S. 533, 536 (1988).  In addition, a trial judge must exclude all evidence derived from exploitation of the original constitutional violation up to the point at which the connection with the illegality becomes “so attenuated as to dissipate the taint.”  Id.; Nardone v. United States, 308 U.S. 338, 341 (1939).
	The United States Supreme Court and the United States Court of Appeals for the Fifth Circuit have unequivocally held that a magistrate’s determination of probable cause must be meaningful.  See Illinois v. Gates, 462 U.S. 213, 239 (1983) (affidavit must provide “substantial basis” for determining probable cause); United States v. Barrington, 806 F.2d 529, 532 (5th Cir. 1986) (magistrate must have sufficient information to make determination of probable cause).  In Gates, the Supreme Court set forth the standard to be applied when determining whether an affidavit offered in support of a request for a warrant can support a meaningful determination. There, the Court held that “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.”  Gates, 462 U.S. 213, 239. 
	In this case, the Magistrate signing the warrant–which authorized both search and arrest– had no basis to support a finding of probable cause to believe that ________________ had committed the theft offense, alleged by Officer____________ in his affidavit.  Instead, it appears that the Magistrate was simply relying on Officer ______________ claim that he had reason to believe and did believe that ________________ committed the offense of theft.  The facts alleged in the affidavit do not support this conclusion.  Under the Texas Penal Code, § 31.01, a person commits a theft offense if “he unlawfully appropriates property with intent to deprive the owner of property.”  According to that provision, an appropriation of property is unlawful under the following circumstances:
if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. (emphasis added).  Tex. Pen.Code, § 31.01

	There are simply no facts alleged in the affidavit that would support a Magistrate’s finding of probable cause that ________________ had unlawfully appropriated the radio.  In fact the affidavit supports the opposite conclusion: that ________________’s appropriation of the radio was lawful.  The affidavit makes clear that ________________ purchased the radio from a pawnshop.  It also shows that ________________, after receiving a call from Officer ___________________, almost immediately called the pawnshop to inquire about the radio.  The affidavit omits any details of the conversation between the pawnshop and ________________, but it is not even implied that the pawnshop informed ________________ that the radio was stolen.3  
	Officer ______________ statements detailed in the affidavit suggest that ________________ himself did not believe that ________________ had unlawfully appropriated the radio.  He stated that he told ________________ that if he returned the radio, he “would be given a case number so he could be reimbursed for his loss.”  Certainly, someone who is guilty of unlawful appropriation of property is not entitled to any reimbursement for any money expended in the course of his unlawful appropriation.  
	In addition, there is an insufficient basis in the affidavit from which a magistrate could conclude that the radio was, in fact, stolen.  Officer __________________ appears to have relied on two different sources in reaching his conclusion that the radio was stolen.  The first possible basis was __________________.  It is clear that ______________ conclusion about the status of the radio was only based on speculation.  He claims to have informed ________________ that the radio was “probably stolen.”  It is clear from the face of the affidavit, that _____________ did not know whether the radio was stolen.  The second information _____________ possibly relied on is the fact that the radio was purchased a year earlier by Sam Houston High School.  Nowhere does the affidavit allege that the radio was ever reported or confirmed to be stolen.   Despite these deficiencies in the affidavit the Magistrate signed a warrant authorizing both search and arrest. (App. A).  Officer _________________ executed the warrant, placed ________________ in custody, and searched the premises, recovering the radio, a firearm, and a marijuana plant.  
	The good faith exception to the probable cause requirement cannot be applied here.  See United States v. Leon, 468 U.S. 897 (1984).  The exception is not available to an officer who relies on a warrant based on an affidavit so lacking in probable cause as to render belief in its existence entirely unreasonable.  See United States v. Cherna, 184 F.3d 403, 407–08 (5th Cir. 1999) (same).  The good faith exception is also inapplicable where, as here, an officer obtains a warrant and conducts a search based on the inadequate information he himself provides to a magistrate.  See Barrington, 806 F.2d 529, 532. 
	WHEREFORE, premises considered, Defendant prays this Honorable Court will grant an evidentiary hearing to allow the defense to develop a record and present argument on both the sufficiency of the affidavit in support of the warrant, as well as the manner in which the warrant was executed.  ________________ further prays that after evidence and argument are heard, the Court will suppress from use at trial any evidence derived directly or indirectly from the illegal arrest and search of the Defendant, including any statements of Defendant; any sense impressions perceived by police officers and government agents; any physical evidence discovered as a result of the execution of the search warrant and arrest of Defendant; and any evidence derived from the execution of the search warrant on March 21, 2001.

						Respectfully submitted.

						_______________________________							Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion to Dismiss on the  United States Attorney for the __________ District of Texas (Attn: Assistant U.S. Attorney _________________), by mailing it to his office at United States Attorney’s Office, ____________________ on __________________,  20____. 			

						______________________________________ 
						
						Attorney for Defendant

	UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. SA 01 CR 505 OG 
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O R D E R

	On this date came on to be considered Defendant's Motion to Suppress, and the Court, after hearing evidence and argument, finds that the 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 the Defendant to law enforcement officers after his arrest.
	2.  Any and all evidence obtained directly or indirectly, through the unlawful search of the residence at ______________ and the unlawful arrest of ________________ on or about March 21, 2001, including a Vertex Radio # 0C042829, a Lorcin 380 caliber firearm # 380570, 5.4 grams of alleged marijuana.
	So ORDERED on this the                      day of _______________.

						United States District Judge