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 the _____ day of __________________, 200__.
Procedural History
	The Defendant allegedly committed the offense which is the subject of Cause No. _______ on May 15, 2004.  The Defendant was arrested as a result of this offense and was charged by information for the offense of Possession of Marijuana less than two ounces on May 24, 2004.
Statement of Facts
	On May 15, 2004, Officer Philip Rolan of the Lubbock Police Department stopped the Defendant, who allegedly failed to stop at a red light while traveling northbound on Avenue Q in Lubbock.  The officer ran a warrant check on the Defendant and discovered that the Defendant had an outstanding warrant.  
	At this time, Defendant was placed under arrest and the officer conducted a search of Defendant’s vehicle incident to the arrest.  During the search, the officer allegedly found a plastic bag containing what the officer suspected to be marijuana.  Upon discovering the suspected contraband, the officer asked the Defendant to whom it belonged.  The Defendant reportedly claimed that it belonged to him.  Prior to soliciting this statement from the Defendant, the officer failed to inform the Defendant of his rights pursuant to Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure.
Argument
The Defendant’s statements regarding the alleged contraband found in the vehicle were solicited in violation of Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure and should be suppressed under Article 38.23(a) of this same code as the product of an improper custodial interrogation.

	Miranda safeguards take effect whenever a person in custody is subjected to either express questioning or its functional equivalent.  Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), See also Miranda v. Arizona, 384 U.S. 436, 444 (1966).  Miranda prohibits the prosecution from using statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it shows the use of procedural safeguards sufficient to secure the privilege against self-incrimination.  Innis, 446 U.S. 291 at 297.  Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Id. at 298 (quoting Miranda, 384 U.S. at 444 (1966)).
	The protections afforded by Miranda are not limited to questioning related to the reason for the arrest.  See Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503 (1968).  In Mathis, the Supreme Court held that nothing in the Miranda opinion calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody.  Id.
	Additionally, Article 38.22 § 3(a)(2) provides that [n]o oral...statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:...
(2) prior to the statement...the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning...
	In the present case, the interrogation of the Defendant while in custody for a traffic warrant about the separate offense of possession of marijuana allegedly found in the Defendant’s vehicle was illegal since the officer failed to give the Defendant the required Miranda warning, codified in Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure, prior to questioning.  In the officer’s report, he stated that the search was incident to the Defendant’s arrest and the Defendant’s statement was in response to the officer’s questioning.  Therefore, the questioning of the Defendant was clearly a custodial interrogation given that the Defendant was under arrest when questioned about the ownership of the alleged contraband.  Additionally, there is no evidence that the Defendant was Mirandized or in any way informed of his statutory rights prior to the interrogation as required by Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure.  Because of the officer’s violation, the Defendant’s statement should be suppressed pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure as the product of an illegal custodial interrogation.
CONCLUSION AND PRAYER
	The Defendant’s statement regarding the ownership of the contraband allegedly found in the Defendant’s vehicle should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure because it was solicited in contravention of Article 38.22 § 3(a)(2) of this same code.  For the foregoing reasons, the Defendant respectfully asks this court to find that the custodial interrogation of the Defendant was illegal, given that the Defendant was not informed of his rights prior to questioning, and suppress the Defendant’s statements in response to this improper questioning.

Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on _____day of _______ 2005, 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.

___________________________________________
Fred Stangl