NO.

THE STATE OF TEXAS			§           IN THE _______ COURT
												§

V.						§	OF
						§

JOHN DOE					§	____________ COUNTY, TEXAS

DEFENDANT’S 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 August 6, 2002.
Procedural History
	The Defendant allegedly committed the offense which is subject of Cause No.__________ on January 19, 2002.  The Defendant was arrested as a result of this offense, and was indicted for the offense of Possession of a Controlled Substance  on April 3, 2002.
Statement of Facts
	On January 19, 2002, members of the Lubbock Regional Office of the Drug Enforcement Agency (DEA) along with members of the Lubbock County Sheriff’s office executed a search warrant on the residence located at 9203 Dawson, Wolfforth, Texas.  When the officers arrived at the residence to execute the warrant, the Defendant was found sitting in the living room.  The owner of the residence and the Defendant were read their Miranda warnings by Special Agent Bruce Lange of the DEA.  Sergeant Tony Menchaca  of the Lubbock County Sheriff’s Office then searched the Defendant and found a Marlboro cigarette pack in his left coat pocket.  Inside the Marlboro cigarette pack was a small plastic baggie “corner” containing a tan powder substance.  The substance was later confirmed to be approximately one half gram of methamphetamine.
Argument
	The search of the Defendant was illegal as it violated his rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution; Article 1, Section 9 of the Constitution of the State of Texas; and Article 38.23 of the Texas Code of Criminal Procedure, in that there were no independent facts supporting the search of his person.	

	Officers serving a search warrant on a residence do not have the authority to search anyone found in or around the residence based solely on their “mere presence” at the scene.  There must be an independent set of facts which, standing alone, support a search or “Terry” frisk of that individual.
	The Texas Court of Criminal Appeals interpreted two U.S. Supreme Court cases in 1984 which gave us the current state of the law in Texas regarding this issue.  See Lippert v. State, 664 S.W.2d 712 (Tex. 1984).  The two Supreme Court cases are Ybarra v. Illinois, 444 U.S. 85 (1979), and Michigan v. Summers, 452 U.S. 692 (1981).  Both of those cases dealt with the issue.  Ybarra made it clear that “mere presence” at the scene of a search warrant being executed does not validate a search of that individual without independent justification.  Summers, on the other hand, held that the occupant of a residence could be detained while the search is being conducted, but that a search of that person required the same criteria as that set out in Ybarra.  In Lippert, the Court of Criminal Appeals concluded that under a properly obtained and executed search warrant, (1) the police are warranted in detaining and searching suspects named or described in the search warrant, 664 S.W.2d at 721; (2) the police are authorized to seize or detain residential occupants without probable cause but may not search the occupant unless the standards of Ybarra are met, id. at 720, i.e., reasonable suspicion that the person present is armed and dangerous, id. at 717; and (3) the police are not justified in detaining or searching persons who are not occupants and are merely present at the scene.  Id. at 720-22.  
	In Ybarra, The Supreme Court of the United States set out the requirements for a “Terry frisk” of a person who is merely present when a search warrant is served.  Ybarra v. Illinois, 444 U.S. 85 (1979).  They held that “a search or seizure of a person must be supported by probable cause particularized with respect to that person.”  Id. at 91.  
	In Ybarra, the judge of an Illinois Circuit Court issued a search warrant for the Aurora Tap Tavern based on a valid complaint that the bartender had in his possession several tin foil packets claimed to contain heroin.  Id. at 88.  Based on the strength of the complaint, the warrant was issued for the search of the Tavern and for the bartender.  Id.  When the officers got to the tavern to serve the warrant, they announced their purpose, and told everyone present that they were going to conduct a search for weapons.  Id.  One of the officers did a patdown search of the customers present in the tavern while the other officers did an extensive search of the premises.  Id.  When the officer searched  Ventura Ybarra, he felt what he described as “a cigarette pack with objects in it.”  Id.    The officer did not remove the pack at that time, but returned to Mr. Ybarra after he had frisked the rest of the customers.  Id. at 89.  When he did return to Mr. Ybarra, he found the cigarette pack and looked inside to find six tinfoil packets containing heroin.  Id.  
	The Supreme Court of the United States held that in order to conduct a search of someone merely at the scene of a search warrant being served, there must be independent factors particularized with respect to that person that would give rise to probable cause.  Id. at 91.  “This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.”  Id.  They followed by saying that “the Fourth and Fourteenth Amendments protect the ‘legitimate expectations of privacy’ of persons, not places.”  Id.  
	The court also discussed the Terry doctrine of allowing a search on less than probable cause.  Id. at 93.  They were also careful to point out that the limited Terry exception to the warrant requirement, however, does not permit a frisk for weapons on “less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on the premises where an authorized narcotics search is taking place.”  Id. at 94.  The Court disposed of the State’s Terry argument by refusing to “construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on ‘compact’ premises subject to a search warrant, at least where the police have a ‘reasonable belief’ that such persons ‘are connected with’ drug trafficking and ‘may be concealing or carrying away the contraband.’” Id.  The Court extended its holding to as “compact” a premises as a car, by citing to a thirty year old Supreme Court case that held it was “not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”  Id. at 95 citing United States v. Di Re, 332 U.S. 581, 583-587.  
	In Michigan v. Summers, the Supreme Court clarified the “present at the scene of a search” rule from Ybarra by holding that the occupant of a residence may be detained during the search, but that the requirements to search that individual are the same as that in Ybarra.  452 U.S. 692 (1981).  In Summers, Detroit police officers were about to serve a search warrant on a residence when they saw the respondent walk out the front door and down the steps off the porch.  Id. at 693.  They detained the respondent while they conducted the search which turned up narcotics in the basement.  Id.  After ascertaining that the respondent owned the house, they arrested him, searched his person and found 8.5 grams of heroin in his coat pocket.  Id.  
	The question the Court addressed was whether the initial detention of the respondent was justified.  Id. at 694.  The Court noted cases in which investigatory detentions were justifiable when the officers had specific articulable facts that gave rise to reasonable suspicion that the individuals were either armed or connected to illegal activity.  Id. at 698. See Terry v. Ohio, 392 U.S. 1, Adams v. Williams, 407 U.S. 143, and United States v. Brignoni-Ponce, 422 U.S. 873.  “These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.”  Id. at 699.  
	The Court determined that it was necessary to examine the character of the intrusion on the individual as well as the justification in order to decide whether it fell under the general exception.  Id. at 701.  They said that “of prime importance” looking at the intrusion was the fact that the police had obtained a warrant to search the resondent’s house.  Id.  A neutral and detached Magistrate had already authorized a substantial invasion of the privacy of the persons who resided at the residence.  Id.  The detention of one of the residents during the search was “surely less intrusive than the search itself.”  Id.  
	In determining whether there was justification for the detention, “both the law enforcement interest and the nature of the ‘articulable facts’ supporting the detention are relevant.”  Id. at 702.  The law enforcement interests that justified the detention of a resident of the premises during the search were to prevent flight , to minimize the risk of harm to the officers, and to have the ability to complete the search in an orderly fashion with the assistance of the resident.  Id. at 702-703.  In looking at the articulable and individualized suspicion required for the detention, the Court said that the existence of a search warrant provided an objective justification that someone in the home is committing a crime.  Id.  “The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.”  Id. at 704.  However, the Court clarified in its holding that because the search of the respondent was conducted after probable cause had arisen, the only question was whether the initial detention was justified.  Id. at 705. 
	In the case at bar, the Defendant was not a resident, but was “merely at the residence.”  When the officers arrived to serve the warrant, they immediately read the Defendant and the owner of the house their Miranda warnings and began their search, including the Defendant.  The officers did not even have the authority to detain the Defendant under the Summers, or Lippert cases, because he was not an occupant of the residence.  At no time did the Defendant’s actions give rise to even a reasonable suspicion that he was armed and dangerous or connected with any illegal activity.  Because the officers serving the warrant never had a particularized, independent, set of factors supporting reasonable suspicion or probable cause, the evidence seized from the Defendant during the illegal search of his person must be suppressed.
Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on ___________, 200_ a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress was delivered to the Criminal District Attorney of Lubbock County, Texas.

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