NO.

THE STATE OF TEXAS			§        IN THE _________ COURT
												§

V.						§        OF
						§

JOHN DOE					§       ___________ COUNTY, TEXAS

BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:
	DEFENDANT, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this court on the 18th day of January, 2005.
Procedural History
	The Defendant allegedly committed the offense which is the subject of Cause No._________ on September 9, 2004.  The Defendant was arrested as a result of this offense, and was charged by indictment for the offense of Possession of a Controlled Substance With the Intent to Deliver on October 12, 2004.
Facts
	On September 7, 2004, Officer Dwayne Gerber received information from a confidential informant that a man named Kevin _______ was selling methamphetamine.  Officer Gerber set up a controlled purchase of methamphetamine between Kevin _______ and Corporal Walter Scott, who was acting in an undercover capacity.  Corporal Scott met with _______, gave him previously photocopied buy money, and _______ left on his bicycle.  Other officers conducting surveillance followed _______ to 4305 16th Street #9, where he knocked and went inside.  _______ left a short time later, rode his bicycle back to Corporal Scott, and delivered the methamphetamine.
	On September 9, 2004, Corporal Scott contacted _______ again and set up another controlled purchase.  The officer’s plan was to observe where _______ went to obtain the controlled substance, detain persons at the location and then arrest _______.  Again, Corporal Scott gave _______ previously photocopied buy money, and again _______ rode off on his bicycle and returned with the methamphetamine.  Corporal Scott then gave the arrest signal, and _______ was arrested by Officers Opaitz and Cox.  Lubbock Police case report number 04-038296 lists the time of this operation at 3:30 p.m.
	Shortly after _______ left the apartment, Tyra Walton exited the Defendant’s apartment and was detained by the officers.  After ascertaining that Ms. Walton was not the occupant of the apartment and she did not possess any contraband, the officers proceeded to breach the Defendant’s door to conduct a warrantless search.  Neither of the two police reports regarding this investigation contain any mention of the detention of Tyra Walton.
	Lubbock Police report case number 04-038312 states that at 6:00 p.m. on September 9, 2004, the apartment that was the source for _______ was secured.  The apartment in that report is listed as 4305 16th Street #12, although the officers have testified that apartment #9 was the subject of the surveillance.  The report also states that “the front door to the apartment received significant damage during the entry.”  After entry was gained, the Defendant apparently signed a consent to search form after being given her rights, including her right to refuse to sign the consent form.  A systematic search of the apartment was conducted, and several items of evidence were seized.  The officers never obtained a warrant to search the residence.

Argument
I.  The initial entry and search of Defendant’s apartment was illegal because the arresting officers did not have a warrant to search the premises or probable cause to suspect that evidence of a crime would be found inside, and pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure the evidence should be suppressed.

	Article 38.23(a) of the Texas Code of Criminal Procedure states that any evidence seized as a product of an illegal search must be suppressed.  Warrantless searches are presumed to be invalid.  See Fancher v. State, 659 S.W. 2d 836, 839 (Tex.Crim.App. 1983).  The State has the burden to prove the reasonableness of the search.  See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim. App. 1986).  To justify a warrantless search, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impracticable.  McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991).  Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.  McNairy, 835 S.W.2d 101 at 106.  
	In the case at bar, the officers did not have probable cause to believe that evidence of a crime would be found in the Defendant’s apartment.  Officer Gerber testified at the first hearing on Defendant’s Motion to Suppress that he did not know if _______ possessed the methamphetamine before going to the Defendant’s apartment.  Also, none of the officers saw a drug transaction take place and they did not see _______ leave Defendant’s apartment with anything.  Therefore, the officers did not have probable cause to believe that drugs would be found in the apartment.  Because the officers lacked probable cause to believe that evidence of a crime would be found in the Defendant’s apartment, the search of Defendant’s apartment was illegal and any evidence procured as a result of this search should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure.
II.  Even if the arresting officers had probable cause to believe that there was a supply of a controlled substance inside the Defendant’s apartment, the warrantless search of the Defendant’s apartment was illegal because the record fails to establish exigent circumstances which would allow the warrantless search; and any evidence seized should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure.

	The Fourth Amendment affords an individual a higher expectation of privacy within his private dwelling.  See Barocio v. State, 117 S.W.3d 19, 23 (Tex. App–Houston [14th Dist.] 2003).  Although probable cause often authorizes an officer to arrest an individual without a warrant, probable cause without exigent circumstances does not allow the officer to forcibly enter a residence without a warrant.  Tex. Code Crim. Proc. Art. 14.05.
	To show exigent circumstances, it is necessary to prove that “the police could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant.”  Barocio, 117 S.W.3d at 25  (quoting Covarrubia v. State, 902 S.W.2d 549, 553 (Tex. App.–Houston [1st Dist.] 1995, pet. ref’d)).  Facts which would otherwise constitute grounds for issuance of a search warrant do not necessarily authorize a warrantless search.  Id. at 23.  The court in Barocio held that the presence of drugs alone is not an exigent circumstance which authorizes a warrantless entry and search.  117 S.W.3d at 25 (citing United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).  Additionally, the police cannot justify a warrantless search on the basis of exigent circumstances of its own making.  United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986).
	In Munoz-Guerra the police and the D.E.A. began surveillance of the appellant’s condominium based on an anonymous tip regarding drug activity.  The officers surveilled the dwelling undetected from the back side of the complex, which had no windows.  Id.  One of the officers walked to one side of the condominium where there was a window and saw the butt of a marijuana cigarette on the sill and a small bag containing white powder on the floor.  Id. at 297.  At this time, this officer and another officer knocked on a door and then breached the door when the person inside said that he had to go retrieve a key.  Id.  The court noted that the officers were aware that when they made their presence known, it would be necessary to conduct a security search of the premises to secure any other occupants.  Id. at 298.
	The court held that the mere presence of firearms or destructible, incriminating evidence does not create exigent circumstances.  Id.  The court also held that without reason to believe that a suspect was aware of police presence, there was no basis for believing that obtaining a warrant would have created any undue risks.  See Id.  Additionally, the court rejects the government’s argument that swift and immediate action may have minimized risks to human life and physical evidence.  Id. at 298-99.  The court held:
“Our fourth amendment jurisprudence contemplates that protection of individual rights of privacy will be achieved at some cost to society’s interest in public safety; and, in the ordinary case the risk that a criminal suspect will become aware of covert surveillance is deemed insignificant in contrast to the more substantial benefits we all derive from the procedural safeguards of judicial process.”  Id. at 299.

	As in Munoz-Guerra, the officers in the present case were conducting covert surveillance of Defendant’s apartment undetected until the time of the breach.  Officer Gerber testified that the reason that the Defendant’s door was breached and a warrantless entry was made was because of the possibility that someone inside the apartment saw the detention of Tyra Walton.  However, the State failed to point to any articulable facts that would have lead a reasonable person to believe that the officers were seen by any of the apartments’s occupants, that the officers were in any danger, or that evidence was in danger of imminent destruction.  In fact, the evidence shows that there are no windows in the Defendant’s apartment that face the parking lot where Ms. Walton was detained.  Also, Ms. Walton’s testimony along with the evidence shows that a person would have to walk to the end of the vestibule in which the door to the Defendant’s apartment is located to see the portion of the parking lot where she was detained.  Nothing in the evidence shows that anyone opened the door of the apartment before it was breached.  Officer Gerber testified that as far as he knew, nobody in the apartment saw them.
	Further, no compelling reasons were given to explain why Ms. Walton could not have been detained further away from the building as was Kevin _______.  Ms Walton testified that the police never asked her if there were any weapons, drugs, or other individuals in the apartment prior to breaching the door.  In fact, the evidence indicates that the officers made no effort in the two days between the first and second transactions with Kevin _______ to ascertain such seemingly important information as to who lived in the apartment and the correct apartment number.  They merely suspected that a white female lived at the apartment.  The most compelling inference obtained from all of this evidence is that the officers, in their zealousness to effectuate an arrest, created the so called exigent circumstances by detaining Ms. Walton in a nearby location, and then kicking in the Defendant’s door despite the fact that they had no reason to believe that any exigent circumstances existed.  Because the State failed to present any evidence that the officers had reason to believe that any suspect was aware of police presence or that there was even any danger to the officers’ safety or to the evidence prior to the breach, the State failed to meet its burden to prove the existence of exigent circumstances.  Therefore, the warrantless search was illegal and any evidence obtained from this search should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure.
III.  Since the arresting officers did not have the valid consent to search the Defendant’s apartment, any evidence seized during the search should be suppressed as the product of an illegal search under Article 38.23(a) of the Texas Code of Criminal Procedure.

	The State has the burden of showing by clear and convincing evidence that the consent to search was freely and voluntarily given.  Reyes v. State, 741 S.W.2d 414, 430 (Tex.Crim.App. 1987).  This burden cannot be discharged by showing no more than acquiescence by the defendant to a claim of lawful authority.  Id.  Moreover, the consent must be positive and unequivocal.  Id.  Additionally, the State must show that the consent to search was not the result of physical or psychological coercion.  Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985).  When acting under color of office, a police officer must have sufficient legal basis for intruding into a person’s home.  Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
	In Lomas v. State, the police conducted a raid much like the one at issue in this case.  2000WL 1634076 *1 (Tex.App.–Amarillo)(Not released for publication).  In Lomas, the undercover officer actually went to the appellant’s apartment with the seller and waited outside the apartment while the seller went inside.  Id.  After the seller exited the apartment, he attempted to deliver the controlled substance to the officer.  Id.  At this time the officer signaled the other officers and the backup team forcefully entered the apartment.  Id.  
	The Seventh Court of Appeals held that “[k]icking in a door hardly evinces prior consent.”  Id. at *5.  The court also held that acquiescing to a search immediately after officers brandishing firearms had just conducted a non-consensual search of the dwelling also does not lead to the reasonable inference that the victim of the search consented.  See Id.  Lastly, the court held that consent obtained from a scared person immediately after such a non-consensual search involving armed law enforcement personnel is neither voluntary nor free from exploitation of an unlawful act.  Id.
	In the present case, Defendant’s consent to search her apartment was invalid because it was the result of the duress and coercion under which the Defendant was placed as a result of the manner in which her apartment was entered.  As in Lomas, the consent was given only after several police officers in raid gear, without announcing their presence, kicked in her front door and entered her apartment.  Officer Lloyd Brown testified that after the entry, Ms. Stone was nervous, trembling, and somewhat upset.  Given the intimidating nature of this forceful entry of her home, the Defendant had no reason to believe that she could refuse consent to search the apartment.  Therefore, any consent that the officers obtained was tainted by the previous unlawful search.  Because the Defendant’s consent to search the apartment was invalid, the search was illegal and should be suppressed pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure.
Conclusion and Prayer
	The evidence seized in the warrantless search of Defendant’s apartment should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure as the product of an illegal search.  Since the arresting officer had neither a warrant or exigent circumstances along with probable cause, the search violated the Defendant’s rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution, Article 1, § 9, of the Constitution of the State of Texas, and Article 3823(a), Texas Code of Criminal Procedure.  For the foregoing reasons, Defendant respectfully asks this court to hold that the search and seizure of Defendant’s apartment was illegal and suppress all evidence gained as a result of that illegality.

Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on _____day of _______ 200___, a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress was delivered to the Criminal District Attorney of ________County, Texas.

___________________________________________