Motion to Suppress

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 June 6, 2005, at the hour of 8:30 a.m. or as soon thereafter as counsel may be heard in the courtroom of Department 48 of the above-entitled court, the defendant will move for an order suppressing the items of evidence listed in Exhibit A attached hereto.

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 may 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: 05/16/2005

_______________________
June Davis
Attorney for Defendants

EXHIBIT A: Items that the Defense Requests be Suppressed in People v. Tommy Bruno

1. Recorded conversation (and any transcription thereof) between Tommy and Mary Turner while parked in their car, which conversation was captured by police with their bi-directional microphone

2. Zippered bag

3. Bottle of chloroform

4. Roll of duct tape

5. Blonde wig (woman’s)

6. Pair of sun glasses

7. Map of the Boston home with letters and numbers handwritten on the floor plan and an arrow pointing to “Kirby’s room.” Turner’s room and Mr. Boston’s room were also labeled.

8. Piece of paper which contained the name of Kirby’s private school and the time the school let out.

9. Rental receipt with Bruno’s name on it indicating that he had recently rented a vacation cabin for the rest of the month in the city of Crestline

10. Several magazines that had headlines cut out of them, which magazines were found by the detective

11. Two video tapes found by the detective, which video tapes were of the movies “Ransom” and “Kidnaped – The True Story of the Lindberg Crime of the Century.”

12. Polaroid photo of Mary Turner with a blond wig on and wearing the dark glasses

13. Notebook discovered with written entries such as “Is a million too much to ask for?”; “How long would it take to get a million?”; “How much space would it take in hundred dollar bills or thousand dollar bills?”; and “What countries do not have extradition treaties with the U.S.?”

14. Statement of the cabin owner who was contacted by one of the detectives, in which statement the cabin owner said he remembered the pair {Mary Turner and Tommy Bruno] because one of them said they had a son who would enjoy the nearby woods and lake. The cabin owner indicated that he thought this was odd because it was in the middle of a school month. He also indicated that he did not believe they [Turner and Bruno] had a child with them when they rented the cabin.

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15. Bruno’s previous arrest on fraud charges regarding a telemarketing scheme

16. Photographs (including those taken by Officer Alvarez) of Bruno and Turner engaging in sexually intimate activity

17. Statement by Turner after she was arrested, in which statement she said to Bruno, “I told you it would never work out?”

18. Items the police found in Bruno and Turner’s car trunk, items including a rope clothes-line and a chain ladder

 

 

___________________________________________________________________________________________________________

MEMORANANDUM 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:

FACTS

 

ARGUMENT

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. USE OF a TECHNOLOGICAL DEVICE SUCH AS A BI-DIRECTIONAL MICROPHONE WHICH ALLOWS FOR NON-PHYSICAL TRESPASSORY LISTENING IN ON, AND RECORDING OF, CONVERSATION WILL NOT MAKE LAWFUL A WARRANTLESS SEARCH OF CONVERSATION REGARDING WHICH THE OWNERS EXHIBIT AND HAVE A REASONABLE EXPECTAION OF PRIVACY.

When the government uses a technological device to intercept a persons conversations when that person exhibits and has a reasonable expectation of privacy, the government has committed an unreasonable search and seizure in violation of the person’s Fourth Amendment rights against unreasonable search and seizure and Fourteenth Amendment rights to due process before governmental deprivation of property. Katz v. United States, 389 U.S. 347 (1967). Since the “Fourth Amendment protects people, not places,” physical trespass into an enclosed area is not a dispositive factor in determining whether there is a unlawful search and seizure. In Katz, the court indicated that law enforcement’s use of a technological device, electronic recording device, attached to the outside of a phone booth to capture conversations going on inside the phone booth where Katz did exhibit an expectation of privacy by having the phone booth door closed while he was using the telephone, along with society affording reasonableness to the expectation of privacy by one so using a public phone,” [Cf. Rios v. United States, 364 U.S. 253, a public phone booth is a “temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable”], results in an unlawful search and seizure by the government of Katz’ telephone conversation, despite the government’s not physically trespassing into the booth.

Here, as in Katz, law enforcements used a technological device that allowed a non physical trespass into the physical area in which defendants’ conversation was taking place, trespass for the purpose of listening and recording, i.e., search and seizure, of conversation regarding which the owners of the conversation exhibited, and had, a reasonable expectation of privacy. The technological device used here was a bi-directional microphone, while in Katz it was an electronic recording device. Regardless of the specifics of the device, the devices were used to overhear conversations over which the owners had protected privacy interests. Here, Defendants Bruno and Turner were having a conversation in their own car and had taken the car to a deserted road in a large public park. So, they intended their conversation to be private. Since there were no exigent circumstances presenting and there existed no other exception to the officers’ obtaining a warrant to conduct the search and seizure of defendants’ conversations, and since the Fourth Amendment protects the person not the place (and, therefore, an non-physical trespass is not dispositive of unreasonable search and seizure), the officers’ warrantless listening in on and recording of those conversations (even with their technological bi-directional microphone which allows a non-physical trespass into overhearing the conversations), which conversations the defendants exhibited and had a reasonable expectation of privacy, were unreasonable and in violation of defendants’ Fourth Amendment right against unreasonable governmental search and seizure, and therefore those conversations are required to be suppressed. Pen. C. 1538.5(1).

4. THE CONTENTS OF THE ZIPPERED BAG HAVING BEEN ENCLOSED IN THE ZIPPED BAG WERE CONCEALED AND NOT IN THE DEFENDANTS’ IMMEDIATE CONTROL OR POSSESSION, AND, THEREFORE WARRANTLESS SEARCH AND SEIZURE OF THE BAG AND ITS CONTENTS WAS UNREASONABLE.

Law enforcement can conduct a warrantless search only of the area within the arrestees’ immediate control or possession, i.e. areas (including the arrestees’ person) where they "might gain possession of a weapon or destructible evidence,” evidence “which may be used to prove the offense” for which they were lawfully arrested or items that “it is unlawful for [them] to have.” The area of allowable search does not include closed or concealed areas. [Chimel v. California, 395 U.S. 752 (1969), 756 citing Carroll v. United States, 267 U.S. 132; Weeks v. United States, 232 U.S. 383, 392.”

Here, the offense that Bruno and Turner were arrested for was lewd act in public, and thereafter the police commenced a search of the back seat of his car and found a zippered bag in which was various things including chloroform. Then, they placed Bruno under arrest for a controlled substance. The police searched defendants’ persons and nothing illegal or even incriminating was found on them. The contents of the zippered bag being enclosed in the bag while the bag was in the back seat of the car were not in plain view of the officers and were not in the immediate control or possession of the defendants, since the contents were in an closed/concealed area, inside the zippered bag. So, the officers could not conduct a reasonable search or seizure of the bag or its contents without a warrant. Thus, law enforcement’s warrantless search and seizure of the bag and its contents were unreasonable and, therefore, they are required to be suppressed. Pen. C. 1538.5(1).

Also, any “destructible evidence” must be of crime for which the defendants were arrested. The contents of the zippered bag containing chloroform, duct tape, wig, sun glasses, maps, pieces of paper, rental receipts were not “destructible evidence” of the crime of lewd conduct, for which the defendants were arrested. Since the items seized here were not the destructible evidence of the offense for which the defendants were arrested, law enforcement’s search and seizure of those items was unreasonable, and they are required to be suppressed. Pen. C. 1538.5(1).

5. LANDLORD DID NOT HAVE IMPLIED AUTHORITY FROM TENANT (I.E. MARY) TO CONSENT TO SEARCH OF HER ROOM

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.

Here, Defendant Turner was a live-in babysitter tenant in possession of, who had possessory property right interest in and, therefore, a legitimate and reasonable expectation of privacy in, the room which she occupied in the Boston house. Turner’s room was not a common, shared area of the house; she had exclusive control over her room. So, Boston, the owner and landlord, had no authority (implied or otherwise) to consent to a police search of Turner’s room without her (Turner’s) permission, which permission Turner did not give. Chapman v. United States (1961) 365 U.S. 610. Also, the police officers knew from their tip, that Turner was a live-in babysitter and that they were searching her room, so they did not have a reasonable belief that Boston the owner of the house had authority to consent to the search of Turner’s room. Moore v. State, 830 So. 2d 883 (Fla. 2d DCA 2002). Since none of the following circumstances existed, i.e, the search of Turner’s room being incident to her arrest, there being an exigent circumstances which would allow an warrantless search of her room, or Turner having given consent to the search of her room, the police having a reasonable belief that Boston had the authority to consent to the search of Turner’s room, the warrantless search of, and seizure of items from, her room was unreasonable and unconstitutional in violation of her Fourth Amendment right against unreasonable search and seizure and of her Fourteenth Amendment right to due process before a governmental deprivation of property (her property interests included the property the police seized from her room). Chimel v. California, 395 U.S. 752 (1969); Payton v. New York, 445 U.S. 573, 588-90 (1980).

Since the search of, and seizure of items from, Turner’s room in the Boston house was unreasonable and, therefore, unconstitutional, any and all items seized therefrom as a result of that unreasonable search is required to be suppressed. Pen. C. 1538.5(1).

6. MUNICIPAL CODE SECTION 19-470 WHICH MADE IT A MISDEMEANOR TO "EXPOSE ONE'S SELF" WAS UNCONSTITUTIONAL DUE TO VAGUENESS

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, "Pen Code Sec. 314, subd. (1), prohibiting indecent exposure in any public place, and Pen. Code, [Sec] 311.6 prohibiting obscene live conduct before an assembly or audience in any public place, are directed at indecent exposure and are not directed at sexual conduct when such conduct is not intended to arouse the prurient interest of an audience." Pryor v. Municipal Court (1979) 25 C3d 238, 158 Cal Rptr 330, 559 P2d 636.

Here, the defendants were arrested for violation of municipal Code Sect 19-470 for "expos[ing] [themselves] in public or commit[ting] lewd conduct in public." As Penal Code Sec. 314 indicates, indecent exposure covers lewd conduct in any public place. And Penal Code Sec. 311.6 covers obscene live conduct before an audience in any public place. Precedent indicates that statutes prohibiting indecent exposure and obscene live conduct are not directed at sexual conduct not intended to arouse the prurient interest of an audience." (Pryor v. Municipal Court mentioning Penal Code Secs 314 and 311.6) Here, the defendants’ actions show that they were intending not to have an audience but, rather, to have privacy. For example, the police recording of defendants’ conversation at the relevant time shows that they wanted privacy. Just before they began their intimate activity, Defendant Turner said “Not out here in the open.” Defendant Bruno said, “…I’ll put the top up.” That the defendants had driven to a deserted road of the large park and that their sexually intimate activity was in their own car after they had closed the car’s convertible top also show that they intended not to have an audience and, therefore, was not intended to arouse the prurient interest of an audience. The road was remote enough such that the police used a telephoto lens to photograph the couple engaging in the intimate activity. So, the defendants having made deliberate and various efforts to be private, including being unseen, made it likely that their conduct would not be observed, and they did not know, nor should have known, of the presence of persons who may be offended by their conduct." (25 C.3d 256.) Since indecent exposure/lewd conduct statutes do not apply to the sexual conduct that the defendants were engaged in, they cannot lawfully be the basis of the arrest of the defendants. That is, the defendants were unlawfully arrested as to that basis.

Additionally, vague statutory language creates not only due process problem of not sufficiently notifying the potential defendant of what behavior is not allowed, it also 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)

Here, since law enforcement is not made sufficiently aware of what “lewd” conduct falls within the statute, they are left to their subjective interpretations of what falls therein. Since the activity for which the defendants were arrested does not fall within those acts contemplated by the statute, the officers’ trying to make the defendants conduct fit the statute prohibitions was, among other things, arbitrary, and defendants were not given sufficient or adequate notice of conduct that was prohibited by the statute. Thus, the arrest was improper and unlawful, and any and all searches and seizures obtained thereby were fruits of the illegal tree and are required to be suppressed.

 

Respectfully submitted,

___________________________________
June Davis
Attorney for Defendants Tommy Bruno
and Mary Turner

provided by student S.B. - Fall 2005, Law 10 - very nice work S. B