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. 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


updated: 5/12/05