v. COURT USE ONLY Defendant: ***** Case Number: **** Attorneys for Defendant:

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1 County Court, City and County of Denver, Colorado Lindsey Flanigan Courthouse, Room W. Colfax Ave. Denver, CO Plaintiff: The People of the State of Colorado v. COURT USE ONLY Defendant: ***** Case Number: **** Attorneys for Defendant: The Law Office of Lauren C. Davis, Attorney at Law, LLC Division: CRIMINAL By: Lauren C. Davis, Reg. # E. 7 th Ave. Courtroom: ** Denver, Colorado Telephone: lauren@laurendavislaw.com MOTION TO SUPPRESS STATEMENTS AND EVIDENCE COMES NOW, the Defendant, through Counsel, moves this Court to suppress all evidence, including observations of police, statements made by defendant to law enforcement personnel, and fruits thereof, and all items obtained by the search and seizure of his person and personal property, and any and all evidence acquired, as they were obtained as a result of an unlawful detention, search, and seizure. Introduction of such evidence would violate defendants rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution; Colorado Constitution Article II, Sections 7, 16, 18, and 25; C.R.S , and other rights. As grounds, Defendant states as follows: INTRODUCTION On or about September 29, 2015, the Defendant was stopped, questioned, and ultimately detained by law enforcement officers at the Denver International Airport. He was not free to leave during questioning, and was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In connection with that stop, defendant is alleged to have made certain statements to police officers. He was taken into custody, arrested and his property was searched without a warrant or a valid exception to the warrant requirement, and without consent or probable cause. The Defendant was subsequently charged with Possession with Intent to Manufacture or Distribute Marijuana or Marijuana Concentrate,

2 CRS (b)(I),(III)(C) and Possession of Marijuana or Marijuana Concentrate, CRS (4)(a). All evidence obtained as a result of this illegal arrest should be suppressed, including any observations by officers, statements made by the Defendant, and any physical evidence seized as they are fruits of the poisonous tree. ARGUMENT THE SEARCH AND SEIZURE OF THE DEFENDANT VIOLATED THE 4 th AMENDMENT 1. The Fourth Amendment prohibits unreasonable searches and seizures by the government; Its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrests. U.S. V. Arvizu, 534 U.S. 266 (2002). 2. There is no question that airport preboarding security screening constitutes a search in the constitutional sense of that term. People v. Heimel, 812 P.2d 1177 (Colo. 1991) E.g., United States v. Davis, 482 F.2d 893, 904 (9th Cir.1973); United States v. Epperson, 454 F.2d 769, 770 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972). 3. However, under the regulatory search exception, the scope of any physical search of a carry on item must be directed to determining whether the potential passenger is carrying an object that is potentially dangerous to air commerce. See Id. at To be a valid search under the regulatory search exception, the purpose must be to detect weapons or dangerous objects or individuals. A physical search of a carry on item cannot be deemed a reasonable part of the airport security program if the search is beyond the purpose of the program. Id. at 1182 (citation omitted). 4. While the court found in Heimel that the search was valid, this case is distinguishable. Officers in Heimel searched his bag for the purpose of determining whether Heilmel had a weapon or other dangerous instrument in his bag; it was not undertaken as a pretext for discovering incriminating evidence or contraband unrelated to the objective of the airport security program. Id at In this case, there is no evidence the security screeners believed defendant was dangerous or carrying a weapon; law enforcement fails to provide any other justification under the administrative exception. 5. If the search in this case was not justified pursuant to the administrative exception to the warrant requirement, then the reasonable suspicion for a stop must be based on specific and articulable facts known to the police officer prior to the intrusion, and any rational inferences from those facts, or voluntary consent. See People v. Johnson, 865 P.2d 836 (1994); see also People v. Garcia, 789 P.2d 190 (Colo. 1990); People v. Thomas, 660 P.2d

3 1272 (Colo. 1983). In this case, defendant did not give voluntary consent. Therefore, the search must be supported by reasonable suspicion. 6. A subjective and unarticulated hunch of criminal activity will not support the requirement that reasonable suspicion exist before the investigatory stop is made. People v. Trujillo, 773 P.2d 1086 (Colo. 1989). An officer who conducts an investigative detention must do so on the basis of more than an inchoate and unparticularized suspicion or hunch. People v. Rahming, 795 P.2d 1338 (Colo. 1990)(quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883) 7. The importance of drawing this line between lawful and unlawful investigatory stops cannot be overstated: It is far from insignificant: it is the right of every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law. Rahming, 795 P.2d at 1341 (Citing People v. Aldridge, 674 P.2d 240 (1984)). 8. According to the evidence provided in this case, law enforcement claimed to have observed anomalous behaviors on [Defendant] approaching the Travel Document checker and as a result, subjected the Defendant to additional screening for reaching the threshold for behavior detection referral. Such observations are patently subjective, amount to an unarticulated hunch of criminal activity, and do not support the requirement that reasonable suspicion existed before the investigative stop was made. 9. Any evidence derived from or obtained as the result of the illegal conduct of the law enforcement officers is improperly obtained fruits of the conduct in violation of defendant s rights. Wong Sun v. United States, 371 U.S. 471 (1963). 10. Since law enforcement s additional screening was not based on specific and articulable facts known to the police officer prior to the intrusion and therefore unwarranted, any evidence derived from or obtained as the result of the illegal conduct of the law enforcement officers is improperly obtained fruits of the conduct in violation of defendant s rights and should therefore be suppressed. ANY STATEMENTS MADE BY THE DEFENDANT WERE INVOLUNTARY AND MADE WHILE IN CUSTODY AND WITHOUT PROPER MIRANDA ADVISEMENTS 11. Defendant was questioned by law enforcement while in custody without Miranda. Defendant raises an objection to any and all statements contained in discovery, as well as any other statements alleged to have been made.

4 12. These statements must be suppressed because Defendant was not advised of his Miranda rights, nor did he execute a valid, knowing and intelligent waiver of his right to remain silent. 13. Once a suspect is in custody, police must not interrogate him until they have provided him with an advisement pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and obtain a knowing, intelligent, and voluntary waiver of those rights by the suspect. People v. Hopkins, 774 P.2d 849 (Colo. 1989). 14. If the Miranda requirements are not complied with, the statements made by the suspect must be suppressed at trial. Oregon v. Elstad, 470 U.S. 298 (1985); People v. Viduya, 703 P.2d 1281 (Colo. 1985); United States Constitution, Article II, Section Interrogation occurs when the words or action of the police are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Ellis, 446 U.S. 291, 301 (1980); People v. Trujillo, 784 P.2d 788, 790 (Colo. 1990). 16. Some of the factors courts consider in determining whether an interrogation was custodial in nature, so as to implicate Miranda, include: (1) time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions. See People v. Barraza, 298 P.3d 922 (Colo. 2013). 17. The burden is on the People to establish that these statements occurred and that they were obtained constitutionally. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct (1966); Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct (1980); People v. Madrid, 179. The prosecution also bears the burden of proving, by a preponderance of the evidence, that the accused made a voluntary waiver of his rights. Colorado v. Connelly, 479 U.S. 157 (1986). 18. Defendant s statements also must be suppressed because they were not voluntarily made, but were instead the result of coercive police conduct and were not voluntary under the totality of the circumstances, including the condition of Defendant, circumstances of the interrogation, and the conduct of the police. Colorado v. Connelly, 479 U.S. 157 (1986); People v. Rafaelli, 647 P.2d 230 (Colo. 1982). 19. The statements, if any, were not volunteered but were responsive to police interrogation or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291 (1980); People v. Lee, 630 P.2d 583 (Colo. 1981). Any alleged waiver or consent on the part of any person present was not voluntary and not the product of a free and deliberate choice rather than intimidation,

5 coercion, or deception, and was not knowingly and intelligently made, with a full awareness, both of the nature of the right being abandoned and the consequences of the decision to abandon it. People v. Jiminez, 863 P.2d 981, 984 (Colo. 1993); People v. May, 859 P.2d 879 (Colo. 1993). 20. Because any statements allegedly made by defendant were made while in custody, subject to interrogation by law enforcement, and without proper Miranda advisements, and because they were involuntarily made, all statements must be suppressed. WHEREFORE, Defendant requests an order suppressing all evidence and statements obtained as a result of the above referenced illegal stop, pursuant to the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, C.R.S Section , and Article II, Sections 7, 16, 18 and 25 of the Colorado Constitution. Dated: February 4, 2016 Respectfully submitted, /s/ Lauren C. Davis, Reg. # Lauren C. Davis, Attorney at Law, LLC

6 CERTIFICATE OF MAILING I certify that on the day of, I placed in the United States mail, postage prepaid and properly sealed and addressed, sent with an authorized agent, sent by facsimile, with original mailed, hand delivered a true and complete copy of the foregoing MOTION TO SUPPRESS STATEMENTS AND EVIDENCE to the following: Denver County District Attorney 201 W. Colfax Ave. Denver, Colorado By: Lauren C. Davis, Reg. # 34510

7 County Court, City and County of Denver, Colorado Lindsey Flanigan Courthouse, Room W. Colfax Ave. Denver, CO Plaintiff: The People of the State of Colorado v. Defendant COURT USE ONLY Case Number: Division: CRIMINAL Courtroom: ORDER RE: DEFENDANT S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE This court being fully appraised of the issues involved does hereby GRANT GRANT in part, as follows: DENY THE DEFENDANT S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE SO ORDERED THIS DAY OF, Judge