147.

Sample Response to Defendant's Motion to Suppress

Defendant's Motion to Suppress Tangible Evidence Should be Denied, as the Evidence was Properly Seized Pursuant to a Valid Search Warrant and Incident to a Lawful Arrest. Defendant conclusorily alleges, in his Motion to Suppress Evidence, that "certain items sought to be used as evidence by the prosecution against the Defendant were seized from him without a warrant or probable cause" in violation of his Fourth Amendment rights. This contention has no merit. The government intends to introduce at trial two groups of items seized from Defendant Sheldon. The first group, consisting of a Ku Klux Klan card and a card on which racial slogans and symbols were written, were seized from the Defendant upon his arrest for the Armstrong Lane cross burning on November 7, 1991. The second, consisting of copy of the film "Mississippi Burning," articles of racist literature and target captioned "Official Runnin' NIGGER Target" were seized from Sheldon's truck pursuant to a valid search warrant. Both groups of evidence are plainly admissible under established Fourth Amendment law. It is well-established that an arresting officer may, without a warrant, search a person validly arrested, regardless of whether there is any indication that the person possesses weapons or evidence; the fact of a lawful arrest, alone, authorizes the search. United States v. Robinson, 414 U.S. 218 (1973). An arrest is lawful so long as the arresting officer has probable cause to believe a suspect has committed an offense under prevailing law. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (citations omitted). A search incident to a lawful arrest remains valid, and the evidence recovered remains admissible, even if the law pursuant to which the officer made the arrest is subsequently ruled unconstitutional. Id. at 35-40. Probable cause, in turn, exists where police have knowledge or information of facts and circumstances sufficient in themselves to warrant a belief by a person of reasonable caution that an offense has been or is being committed by the person to be arrested. Brinegar v. United States, 338 U.S. 160, 175-56 (1949). See also Spinelli v. United States, 393 U.S. 410, 419 ("only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause"). Where an arrest warrant is sought and issued, the magistrate judge's determination of probable cause is entitled to great deference by the reviewing court. Spinelli, 393 U.S. at 419; see also Illinois v. Gates, 462 U.S. 213, 236-39 (1983). The function of the reviewing court is merely to determine whether the magistrate had sufficient information to support his or her independent judgment that probable cause existed. Whitely v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 564 (1971). In this case, the application for Sheldon's arrest warrant states that police had determined that a cross had been burned on land belonging to Harry R. Smith and family, and that these property owneres did not give anyone permission to burn a cross on the property. These facts supplied probable cause for the Judge Barbara Thurston, who issued the arrest warrant, to conclude that a violation of Maryland Code Art. 27, § 10A, which had not yet been ruled unconstitutional, had occurred. The affidavit further states that John Boyd had been arrested for this offense and had given a full written and oral confession admitting that he and Brandon Sheldon together had constructed the cross and placed it on the Smith property, targeting a black family as their victims, and that Sheldon had lit the cross. These additional facts provided ample basis for Judge Thurston's conlusion that a significant probability existed that Sheldon was responsible for the crime at issue. Because the war rant for Sheldon's arrest was supported by probable cause, his arrest and the search of his person incident to that arrest were valid. Thus, the items seized in the course of that arrest are admissible. The items seized from Sheldon's pick-up truck are equally admissible. A magistrate judge properly issues a search warrant for a particular place if he or she concludes that "all the circumstances set forth in the affidavit before him...[supply] a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). As with the determination of probable cause to arrest, a magistrate's determination of probable cause to search is entitled to "great deference"; the duty of a reviewing court is limited to ensuring that the magistrate had a "substantial basis" for his or her decision. Id. at 236-39 (citations omitted); see also United States v. Lalor, 996 F.2d 1578 (4th Cir.), cert. denied, 114 S.Ct. 485 (1993). A review of the affidavit in support of the warrant to search Sheldon's truck shows that police had ample cause to believe that the truck contained evidence of criminal activity. Affiant Thomas Allinger, of the Prince George's County Fire Investigations Division, states that two pick-up trucks were observed leaving the scene of an investigation of a January 28, 1992 cross-burning near Branch Avenue, in Clinton, Maryland. He reports that a witness described one of these trucks as a blue pick-up truck occupied by two white males and bearing a partial Maryland license registration number 215. Allinger further declares that Defendant Sheldon, a white male, is the registered owner of a 1987 blue Chevrolet pick-up truck bearing Maryland registration 215-546. The affidavit also states that Sheldon was arrested for the Armstrong Lane cross-burning in November, 1991; that Sheldon is a known member of the Ku Klux Klan, an organization which burns crosses as part of their ritualistic pra ctices; and that Sheldon is known to be a close friend and associate of two other Klan members who were arrested in connection the Branch Avenue cross-burning.[FN1] FN1. The Prince George's County officials who investigated the incident cannot now recall how they obtained the information that one of the trucks leaving the scene of the cross burning was blue. Grand jury testimony regarding the Branch Avenue incident does suggest, however, that two pickup trucks were seen in the vicinity at the time of the cross burning. One witness testified that as he was driving southbound on Branch Avenue, just before coming upon the burning cross, he noticed a full-size pickup truck with a Confederate flag across the back window parked off the right side of Branch Avenue. He previously told investigators that he also observed two white males running across Branch Avenue toward the parked truck. At the time of the grand jury session, he could not recall the color of the truck. Another witness testified that while the cross was burning, he saw a red Dodge pickup truck with the partial license number 215 and a Confederate flag in the back window parked in a different location, near a construction site beneath Branch Avenue, off Fox Run Drive; the truck drove off quickly with its lights off after the witness saw it. Both Brandon Sheldon and David Paul Black, who was also arrested in connection with the cross burning, owned pickup trucks with the partial Maryland license number 215. Sheldon's truck was a blue Cheverolet with a Confederate flag across the back window; Black's truck was a red Dodge. When investigators located Black's truck on the night of January 28, 1992, it did not have a flag in the window, although investigators found a Confederate flag in Black's bedroom. These facts supplied substantial basis for Judge Nichols' conclusion that a fair probability existed that Sheldon's truck would contain evidence of the Branch Avenue cross-burning; accordingly, this Court should uphold the validity of the warrant. Additionally, where, as here, law enforcement officers rely in good faith upon a search warrant issued by a neutral judicial officer based upon a finding of probable cause, the search warrant is generally immune from judicial scrutiny, even if a reviewing court later determines that probable cause did not exist. United States v. Leon, 468 U.S. 897, 922-23 (1984).[FN2] FN2. Leon's good faith exception to the warrant requirement does not apply where the magistrate relies on an affidavit that the affiant prepared with deliberate or reckless disregard of the truth; or where the magistrate wholly abandoned his neutral and detached judicial function; or where the officers could not harbor a reasonable belief in either the existence of probable cause or the facial validity of the warrant. 468 U.S. at 922-23. Therefore, the evidence seized pursuant to the search warrant for Defendant's truck, as well as the evidence seized incident to his arrest, should not be suppressed. [cited in Civil Rights Resource Manual 60]