Motion to Suppress - People v. Tommy
Bruno & Mary Turner
(click
here for facts of the case)
Instructions:
use the following format, "copy and paste" and fill
in the blanks, then under the section "Memorandum of Points
and Authorities, for # 3,4,5, and 6, make a legal point (remember
all in CAPS, and single space), quote the legal authority given
(case or code), then explain or describe the legal principle
stated in the authority, and then show how it is "mandatory
authority" over the court, and requres the suppression of
various items of evidence. 300 points are given for this project
because of its size and importance. good luck prof. J.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE
Plaintiff,
vs.
Tommy Bruno and Mary Turner
Defendants.
___________________________________
NOTICE OF MOTION & MOTION TO SUPPRESS EVIDENCE
Penal Code Section 1538.5
1538.5. (a) (1) A defendant may move for the return of property
or
to suppress as evidence any tangible or intangible thing
obtained as
a result of a search or seizure on either of the following grounds:
(A) The search or seizure without a warrant was unreasonable.
NOTICE OF MOTION
PLEASE TAKE NOTICE that on _________________ [date], at the hour
of _____________ or as soon thereafter as counsel may be heard
in the courtroom of Department ______ of the above-entitled court,
the defendant will move for an order suppressing the following
evidence ( CLICK
HERE FOR LIST OF EVIDENCE TO BE SUPPRESSED) _____________
[ state specifically evidence sought to be suppressed, for example
all observations of members of the sheriff's department made
after the arrest papers seized pursuant to search warrant number
_______, dated ______ (date), and executed on _________________(date),
at ___________, California]
This motion will be made
on the ground that the search and seizure without a warrant was
unreasonable in violation of the Fourth and Fourteenth Amendments
to the United States Constitution.
The motion will be based
on this notice of motion, on the attached memorandum of points
and authorities served and filed herewith, on such supplemental
memoranda of points and authorities as my hereafter be filed
with the court, or stated orally at the conclusion of the hearing,
on all the papers and records on file in this action, and on
such oral and documentary evidence as may be presented at the
hearing of the motion.
Dated _______________
_____________________
Attorney for Defendant
________________________________________________________________________________________
MEMORANANDUM OF POINTS AND
AUTHORITIES
(click
here for sample of Memorandum of Points and Authorities)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE
Plaintiff,
vs.
Tommy Bruno and Mary Turner
Defendants.
___________________________________
Defendant submits the following
points and authorities in support of the motion to suppress evidence:
1. A DEFENDANT MAY MOVE TO SUPPRESS AS EVIDENCE
ANY
TANGIBLE OR INTANGIBLE THING OBTAINED AS A RESULT OF AN UNREASONABLE
SEARCH OR SEIZURE
Penal Code Section 1538.5
provides in part:
The grounds for suppressing
evidence obtained as a result of an unreasonable search or seizure
are:
" (1) The search or
seizure without a warrant was unreasonable.
" (2) The search or seizure with a warrant was unreasonable
because (I) the warrant is insufficient on its face; (ii) the
property or evidence obtained is not that described in the warrant;
(iii) there was not probable cause for the issuance of the warrant;
(iv) the method of execution of the warrant violated federal
or state constitutional standards; (v) there was any other violation
of federal or state constitutional standards."
2. A SEARCH WITHOUT A WARRANT CAN NORMALLY BE
CONDUCTED ONLY INCIDENT TO A LAWFUL ARREST
In the absence of an emergency
or consent to search , a search without a warrant can be conducted
only if it is incident to a lawful arrest and is restricted to
the person of the arrestee or the area within the arrestee's
immediate control. The search cannot exceed the area "beyond
the petitioner's person and the area from within which he might
have obtained either a weapon or something that could have been
used as evidence against him." (Chimel v California (1969)
395 US 752, 23 L Ed 2d 685, 89 S Ct 2034.)
3. MAKE A LEGAL POINT, AND
AUTHORITY HERE FOR SUPPRESSION OF RECORDED
STATMENT
OF TOMMY BRUNO AND MARY TURNER BECAUSE THE BI-DIRECTIONAL MICROPHONE
WAS SIMILAR TO USE OR RECORDING DEVICE
IN THE KATZ CASE.
4. MAKE A LEGAL POINT, AND
AUTHORITY HERE FOR SUPPRESSION OF BLACK ZIPPERED BAG AND
CONTENTS THEREIN BASED UPON ARGUMENT "NOT WITHIN CONTROL
OR POSSESSION" UNDER
THE CHIMEL
CASE.
5. MAKE A LEGAL POINT, AND AUTHORITY HERE FOR SUPPRESSION OF
SEARCH OF MARY TURNER'S
ROOM BECAUSE LANDLORD DID NOT HAVE IMPLIED AUTHORITY FROM TENANT
(I.E. MARY) TO
CONSENT TO SEARCH - use the following law cited:
An owner of premises has the right to consent if no other persons
are legitimately in occupation of the property. ( People v. Carr
(1972) 8 C.3d 287, 298, 104 C.R. 705, 502 P.2d 513.) Where
a tenant is in possession of the premises the landlord has no
authority to consent to a search. (See Chapman v. United States
(1961) 365 U.S. 610, 81 S.Ct. 776, 778, 780, 5 L.Ed.2d 828, 832,
834, ( for opposition argument see: The head of a household
may also give consent to search a room occupied by another. (See
People v. Munoz (1972) 24 C.A.3d 900, 907, 101 C.R. 265 [M had
consented to search of S's bedroom; officers could reasonably
have believed M was head of household and owned house and all
furniture]; People v. Robinson (1974) 41 C.A.3d 658, 667, 116
C.R. 455 [defendant's sister, with whom he had been staying,
consented to search of area he had occupied and as to which he
could have had no expectation of privacy; police properly seized
closed suitcases and detained them while obtaining a warrant
to search their interiors]; People v. Daniels (1971) 16 C.A.3d
36, 42, 93 C.R. 628 [defendant, an adult, lived with his mother,
owner of the home; she could validly consent to a search of his
bedroom, there being no circumstances to show that he had been
given exclusive control over it]; 3 LaFave 3d, §8.4; 1 Hall
2d, §8:37 et seq.)
6. MAKE A LEGAL POINT AND AUTHORITY FOR SUPPRESSION OF ALL EVIDENCE
FOLLOWING THE
ARREST OF TOMMY BRUNO AND MARY TURNER AT THE PARK FOR "EXPOSING
THEMSELVES" BECAUSE
THE MUNICIPAL CODE SECTION 19-470 WHICH MADE IT A MISDEMEANOR
TO "EXPOSE ONE'S SELF"
WAS UNCONSTITUTIONAL DUE TO VAGUENESS - use the following law
cited:
New standard. From the requirement of former P.C. 290 that persons
convicted of violating P.C. 647(a) had to register as sex offenders,
it was clear that the Legislature intended that the terms "lewd"
and "dissolute" refer to sexually motivated conduct.
(25 C.3d 255.) However, to avoid unconstitutional overbreadth,
the proscribed sexual conduct must be limited to conduct that
is likely to offend. And, because the gist of the offense is
the actual or potential presence of someone to be offended, the
conduct must be likely to be observed. (25 C.3d 256.) Hence:
"The terms 'lewd' and 'dissolute' ... are synonymous, and
refer to conduct which involves the touching of the .... for
the purpose of sexual arousal, gratification, annoyance or offense,
if the actor knows or should know of the presence of persons
who may be offended by his conduct." (25 C.3d 256.) (See
32 Hastings L. J. 461 [Pryor]; CALJIC (6th ed.), No. 16.400 (1997
revision) [lewd conduct].)
also: Vague statutory language creates the danger that police,
prosecutors, judges, and juries will lack sufficient standards
to reach their decisions, thus opening the door to arbitrary
or discriminatory enforcement of the law
Pryor v. Mun. Court for L.A. Judicial Dist., 25 Cal. 3d 238
(1979)
Respectfully submitted,
___________________________________
Name of Attorney
Attorney for Tommy Bruno and Mary Turner