) SS: ST. JOSEPH COUNTY ) CAUSE NO. 71D FD MOTION TO SUPPRESS EVIDENCE

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1 STATE OF INDIANA) IN THE ST. JOSEPH SUPERIOR COURT ) SS: ST. JOSEPH COUNTY ) CAUSE NO. 71D FD STATE OF INDIANA ) ) v. ) ) THOMAS STEVENS ) MOTION TO SUPPRESS EVIDENCE The Defendant, Thomas Stevens, by counsel, Jeffrey E. Kimmell, respectfully requests this Court to suppress as evidence all items seized and observations and statements made during, or as a result of, the execution of the search warrant in the above-captioned cause. Defendant further requests that the Court suppress as evidence all items seized and observations made stemming from the illegal stop of defendant by officer Knepper of the South Bend Police Department. The Facts On the night of March 25, 2014, Tom Stevens was driving his pickup truck in his own neighborhood. The headlights of Tom s truck were on and he was obeying all traffic laws. As Tom was driving he observed a South Bend police car with its headlights off make an abrupt turn and begin to follow him. Tom later learned the car was driven by Officer Aaron Knepper. In the recent past, officer Knepper and other South Bend officers had stopped Tom for no legal reason. Tom had specifically talked to officer Knepper in the past and informed him that he lived at 1528 Sunneymede Avenue. At that time Tom asked officer Knepper to leave him alone. When Tom saw a police car pull behind him on March 25, 2014, he began to drive home. As he was driving home, Officer Knepper turned on his overhead lights.

2 Believing that he was being stopped again for no legitimate purpose, Tom continued driving a short distance to his home. When Tom got home, he exited his truck and began to walk toward his home. Officer Knepper yelled for him to return to his vehicle. Tom did not comply and informed the officer that he had not done anything wrong and that he was going inside his own home. Officer Knepper pulled his gun on Tom and ordered him to the ground. When Tom did not comply, officer Knepper shot him with a Taser gun. Tom managed to get to the front door of his house while suffering from the shock of the Taser. As Tom tried to enter, officer Knepper grabbed him and started punching him wildly in the face and head. Tom tried to free himself to get inside while officer Knepper continued to punch him and yelled for him to get down on the ground. Tom did not at any time punch officer Knepper. As officer Knepper was punching Tom, Tom made it just inside the threshold of the door. Tom s mother, Suzanne, observed officer Knepper repeatedly punching Tom and attempted to protect him from the assault. Officer Knepper knocked Tom s mother down and grabbed Tom by the throat and started punching him again. Eventually other officers arrived and they, along with officer Knepper, pulled Tom from the house and arrested him for the crime of resisting law enforcement. The entire struggle between Tom and the police occurred either outside of Tom s home or just past the threshold of the entry door. Police locked the house and handcuffed Tom. Police then took Tom to the hospital. Tom s mother was taken to the hospital by ambulance. The arrest and investigation into the crime of resisting law enforcement were complete at that point.

3 Once at the hospital, Tom began suffering seizures and went into a coma. Doctors learned that he had internal bleeding near his brain. Police did not seek a warrant for the home until after they learned that Tom Stevens had suffered serious brain injury and feared that they may have inflicted injuries to Tom that would result in his death. There are no facts or circumstances suggesting that a search of Tom Steven s home was needed to further a police investigation into the crime of Resisting Law Enforcement. The only purpose for seeking a warrant after Tom went into a coma was to conduct a general search and rummaging of Tom s home to seek and collect any evidence that may assist in the defense and coverup of police wrongdoing. Police obtained the search warrant by submitting an affidavit only. No hearing was held, no testimony or other evidence was offered. In support of this Motion, the Defendant states the following: Warrant 1. On or about March 25, 2014, police entered and searched the Defendant s home, pursuant to a search warrant, a copy of which is marked as Exhibit "A", attached and hereby incorporated by reference. 2. The search of the Defendant s home was unconstitutional for the following reasons: a. The State s probable cause Affidavit failed to establish probable cause that evidence of a crime would be found in the Defendant s home, thereby causing the resulting search to violate the Fourth Amendment of the U.S. Constitution. See probable cause Affidavit Exhibit B. 3

4 Illegal Stop 1. On or about March 25, 2014, officer Knepper of the South Bend Police Department conducted a traffic stop of defendant. Officer Knepper claims that the reason for the reason for the stop was defendant s failure to use his headlights and failure to stop at a stop sign. 2. The MVR recovered from officer Knepper s car shows that Mr. Stevens had his headlights on as required by law and that he braked and appeared to stop before proceeding at the stop sign in question. Officer Knepper had no legal reason to stop Mr. Stevens. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to suppress as evidence all items seized and observations and statements made during, or as a result of, the execution of the search warrants, as well as the illegal stop, and for all other relief just and proper in the premise. Respectfully submitted, Jeffrey E. Kimmell # West Washington Street, #600 South Bend, IN Tel Attorney for Defendant Memorandum of Law 4

5 I. Search Warrant A. Lack of probable cause The existence of a warrant does not guarantee that a subsequent search is a reasonable one. Agnello v. U.S., (1925) 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed Warrants must strictly comply with the constitutional and statutory law relating to search and seizure. Rohlfing v. State, (1949) 227 Ind. 619, 88 N.E.2d 148; Kinnaird v. State, (1968) 251 Ind. 506, 242 N.E.2d 500. If a warrant is issued without probable cause, the warrant is defective and items seized as a result of the warrant must, be suppressed. Ashley v. State, (1968) 251 Ind. 359, 241 N.E.2d 264. The question in this case is whether or not the face of the affidavit contained sufficient factual information from which a neutral and detached judge or magistrate could reasonably have concluded that probable cause existed for the issuance of a search warrant. There are two basic questions pertinent to the review of a warrant challenged for lack of probable cause: (1) whether the affidavit contains sufficient factual information to allow a neutral judge to reasonably conclude that particular items sought to be seized are sufficiently connected with criminal activity? and (2) whether the items sought are reasonably likely to be found in the particular place that police want to search? See Layman v. State, 407 N.E.2d 2, (Ind. App. 1980) citing Berner, Search and Seizure: Status and Methodology, 8 Val.U.L.Rev. 471 (1974). When a search warrant is not supported by probable cause, the suppression of evidence obtained during the execution of the warrant remains the appropriate remedy. Stabenow v. State, 495 N.E.2d 197, (Ind. App.1986). Suppression is an appropriate remedy if: 1) the judicial officer issuing the warrant was misled by information in the 5

6 affidavit that the affiant knew was false; 2) the judicial officer issuing the warrant wholly abandoned the detached and neutral judicial role; 3) the affidavit supporting the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or 4) the warrant is so facially deficient that executing officers cannot reasonably presume it to be valid. United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The affidavit of probable cause in this case is so lacking in indicia of probable cause that it renders official belief in its existence entirely unreasonable. The affidavit purports to seek entry into 1528 East Sunnymede Avenue for the purpose of furthering an investigation of the crime of Resisting Law Enforcement I.C The affidavit, however, lists a broad list of items which are completely irrelevant to the purported resisting law enforcement investigation. Specifically the affidavit proclaims that police sought to recover certain evidence associated with resisting law enforcement, to wit: Blood, DNA, evidence of domain or occupancy, weapons (including knives), narcotics, paraphernalia, clothing, [and] evidence of a struggle or taser deployment. The elements of resisting law enforcement are few, clear and simple. Ind. Code provides: (a) A person who knowingly or intentionally: (1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties; (2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or 6

7 (3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop; commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b). The elements of Resisting Law Enforcment seldom, if ever, require an investigation of any sort. Nothing other than police officer testimony is required or offered at trial. Often the act or struggle itself will be recorded by police cameras or microphones, but there is no need for forensic evidence to document or support an allegation of resisting. It is blatant and obvious in this case that police were interested in a general search warrant to enable them to rummage through Mr. Steven s home because they feared that they may be held responsible for seriously injuring or killing him. Police obtained a warrant to search the interior of 1528 East Sunnymede Avenue under the false assertion that they expected to find evidence relevant to the crime of resisting law enforcement inside the home. Specifically police stated that certain evidence, to wit: Blood, DNA, evidence of domain or occupancy, weapons (including knives), narcotics, paraphernalia, clothing and evidence of a struggle or taser deployment associated with resisting law enforcement. None of the specific items listed are relevant to an investigation into the crime of resisting law enforcement. No element of resisting law enforcement requires proof of blood, DNA, domain or occupancy, weapons, narcotics, paraphernalia or clothing. Police themselves witnessed and took part in the struggle with Tom Stevens and evidence of taser deployment was readily available to 7

8 police outside the home. While a search for narcotics and paraphernalia could do nothing to further an investigation into resisting, such evidence could be useful to police in an effort to shift focus away from their wrong doing and onto Mr. Stevens. II. Illegal Stop The State has the burden of proving that the investigatory stop of an automobile was not violative of the constitutional protections against unreasonable searches and seizures. State v. Smith, 638 N.E.2d 1353, 1355 (Ind. App.1 Dist. 1994). In the present case, Mr. Stevens asserts that he committed no traffic violation, making the initial stop illegal. It is the State s burden to prove otherwise. Absent sufficient proof, the court should suppress any evidence obtained as a result of the stop. ADDITIONAL CASE LAW Warren v. State, 760 N.E.2d 608 (Ind. 2002) (search warrant that included language authorizing search for any other indicia of criminal activity including but not limited to books, records, documents, or any other such items granted police officers unlawful unbridled discretion to conduct general exploratory search). Rice v. State, 916 N.E.2d 296 (Ind.Ct.App. 2009) (court refused under state constitution to apply Herring, which expanded good faith doctrine; if court were to apply good faith exception in this case and hold it was objectively reasonable for officer to rely on a warrant supported by an affidavit wholly lacking probable cause, officers would have no incentive to discover and attest to facts amounting to probable cause in future affidavits, the defendant s right to seek review of probable cause determination would be empty and exclusionary rule would have no meaning). 8

9 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the day of August, 2014, a true copy of the foregoing motion was served by hand delivery/u.s. Mail on the following: St. Joseph County DPA Micah Cox 10 th Floor County-City Building South Bend, IN