Points and Authorities AKA Trial Court Brief - Essay Example

?SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO THE PEOPLE OF THE OF CALIFORNIA Plaintiff FELONY COMPLAINT vs CASE NO. 1045) MARCO VELASCO ) Memorandum of Points and Authorities ) in Opposition to Plaintiff’s Allegations of Violation ) to Penal Code 12024 Defendant ) Date: ) Time: ____________________________________) Court Room: INTRODUCTION The Defendant submit this motion in Opposition to Plaintiff the People of California to Reverse Detention of Defendant. The Prosecution will show that officer’s action to arrest and detain lacked probable cause, illegal, and a violation of the defendant’s constitutional rights. The court should suppress evidence for illegal search, arrest, and detention because the officer failed to provide substantial evidence for probable cause and the assumption of crime committed was unfounded. STATEMENT OF CASE Marco Velasco, the DEFENDANT, of legal age, running with friends within the vicinity of San Diego Middle School was apprehended by authorities after they have ran inside and then exited of the SDMS campus with various items in their hands. Defendant was holding a glass vase, while the rest held a bottom of a lamp, a chair leg, and a candlestick. That the four teenagers were seen by campus security officers Miguel Martinez and Marvin DaSilvia on said vicinity. It so happened that Martinez recalled that defendant was a member of a gang and also attended San Diego Middle School. The security officers overheard one of the teenagers in the group of defendant shout, “He’s over there!” Subsequently, the campus security officers yelled to the group to “Stop!” several times but the group of defendant continued running until they went towards the exit of the campus, of which they were subsequently apprehended by Officer Jael Waddle. In the process, the glass vase held by defendant was confiscated and used as evidence to press charges against defendant in violation of section 12024 of the US Penal Code, specifically possession of deadly weapon. The arresting officers, however, failed to secure search warrant for possession of deadly weapons for defendant prior to arrest. This, in the assumption that defendant was a violent person who was about to assault a person with the “deadly weapon” glass vase. Defendant was illegally arrested and his possession confiscated without probable cause. ARGUMENT THE COURT SHOULD REVERSE DECICION TO DETAIN DEFENDANT FOR VIOLATION OF PENAL CODE 12024 DUE TO ILLEGAL ARREST AND LACK OF PROBABLE CAUSE. Defendant Marco Velasco, charged with felony for single count of violation of section 12024 of the United States Penal Code, contends that the trial court erred in finding sufficient probable cause to justify his arrest. As a result, the glass vase held by Defendant during his arrest wrongly assumed as a deadly weapon used against defendant, should have been suppressed. A. Defendant Was Illegally Detained Although defendant was immediately arrested upon apprehension and was never actually detained for investigative purposes, defendant submits that there lacks sufficient cause to justify lawful detention. This fact is important because after defendant’s illegal detention and arrest, he was charged with violation of California Penal Code Section 12024. Arrest and detention is lawful if the circumstances known or apparent to the officer includes specific articulable facts for the officer to suspect any criminal activity is happening and the person he intends to arrest is involved in that criminal activity (Tony C [1978] 21 Cal.3d 888, 890). In Brown v. Texas (1979, 443 U.S. 47), it was stated that, “…intrusion on interests prohibited by the Fourth Amendment and requires a reasonable suspicion based on articulable facts relating to the person or his or her conduct in order to be lawful,” in consideration of alleging that a glass vase on defendant’s possession was a deadly weapon. The Fourth Amendment protects the right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures (U.S.C.A. Const. Amend. IV-Search and Seizure). In Tony C. (1978), the court ruled that there lack sufficient information to warrant detention of two juveniles who were walking down the street during school hours in a neighborhood which had recently experienced several burglaries. Even when and where there was sufficient reason to be suspicious in said neighborhood, the court explained that such events “…does not transform a residential neighborhood into a no man’s land in which any passerby is fair game for a roving police interrogation. To hold that police officers should be in the proper discharge of their duties detain and question all persons in that location … would for practical purposes involve an abrogation of the rule requiring substantial circumstances to justify the detention and questioning of persons on the street.” (Id. At 897). In Dung T., 160 Cal.App.3d 697 (1984), defendant was illegally arrested, denied an interpreter, and transported for lineup identity, which the Court of Appeal ruled as illegal and beyond the permissible bounds of limited investigatory stop. In Sibron v. New York (1968, 392 US 40), the High Court held that police violated the defendant’s constitutional rights by detaining and conducting a weapons search on the defendant for the reason that he stood and talked with several persons known to police as substance abusers (Id. 64-65). In J.G., 188 Cal.App.4th 1501 (2010), defendant was apprehended by police when he and his group, members of a gang, were about to engage in a violent gang war. Probable cause was established in this instance for reason that a criminal act was about to happen in the vicinity involving the defendant and the objects they were holding at that time. Prior to the arrest, the defendant got near a vehicle with a man throwing gang signals. Immediately, the defendant and his companions picked objects and started running towards the vehicle, and this is when the arresting officers came to apprehend them. Had the arresting officers been late or abandoned the defendant and his group, it is highly probable that a violent activity or a criminal act occurred. The case of the here defendant is analogous to Tony., Sibron and Dung. The actions of the police officers are considered beyond the allowable constitutional right protected by the Fourth Amendment. After apprehension of defendant, police used the glass vase in the possession of defendant against his person. The glass vase was used against defendant to obtain warrant of arrest. This is direct violation of the defendant’s constitutional rights protecting defendant against unlawful arrest without probable cause. His arrest with his personal effects – the glass vase – was used against him and branded as “deadly weapon.” Unlike the case of J.G., 188 Cal.App.4th 1501 (2010), where defendant was arrested for participation in a near violent encounter when they were apprehended by police, here defendant was not involved with any prior activity that can be considered violent or criminal to indict that defendant was involved in “assault”, a relevant character of the Penal Code 12024. B. Defendant Was Arrested Without Probable Cause There is cause for arrest when the information or facts known to the arresting officers leads a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime (Gerstein v. Pugh [1974] 420 U.S. 103 112; People v. Cook (1978) 22 Cal.3d 67, 84 fn. 6; People v. Devaughn (1977) 18 Cal.3d 889, 895; People v. Harris (1975) 15 Cal.3d 384, 389). In addition, suspicion or wild guess is not sufficient for a probable cause 9People v. Cook, supra, 22 Cal. 3d at 84). In People v. Leib (1976, supra, 16 Cal.3d at 874), the court ruled that the mere presence of a person within the location or vicinity of an illegal activity is not substantial to justify arrest. It was also noted by the court that there was no evidence the defendant had violated any law or committed a crime during the time of his arrest. The court stated, “Defendant cannot be arrested merely for having a guilty intent unless such intent is accompanied by a guilty act.” (Id. At 875). The court upheld that “Where the standard is probable cause, a search of seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." (Ybarra v. Illinois, supra, 444 U.S. at 91). The Supreme Court reversed a trial court decision to deny suppression of evidence on two defendants who were arrested while running is a neighborhood fraught with burglaries (De Vaughn, (1977) 18 Cal. 3d 889). Defendants were apprehended in a neighborhood with a high crime problem after their responses in an investigation were found as deviations. The Supreme Court ruled that the arrest lacked probable cause despite the presence of criminal activities in the area. Leib and Ybarra are analogous to present case in that arresting officers assumed circumstantial assumptions which were heard by the security officers as being yelled, “There he is!” by the group of defendant. This must have prompted the arresting officers to conclude that the group of defendant was after an assumed “victim” where there was none. Penal Code 12024 specifically states: “Every person having upon him or her any deadly weapon, with intent to assault another, is guilty of a misdemeanor.” On the case of De Vaughn (1977), the current case provides similar analogy that even in the presence of crime, officers need to substantiate arrest with probable cause in order to make the arrest and detention legal. It should be clearly noted that there was not even a crime in the site where defendant was apprehended. In addition, the prior knowledge of information by the security officer on defendant being a member of a school gang and the overheard yell of “There he is!” were the only reasons the defendant was arrested and can never constitute as probable cause. The arresting officers failed to provide probable cause for arrest and instead used an object obtained illegally on the possession of the defendant as a “weapon.” Assuming that a glass vase may be broken and its edged points dangerous or deadly, any dangerous object that is not used or not intended for hurting or attacking someone remains an ordinary object. However, the current state of the assumed dangerous or “deadly weapon” is ordinary and safe. What makes it an innocent object is the very lack of criminal act that will indict defendant. It was also assumed by the arresting officer that the yelled “There he is!” was a prelude to an attack on someone that will become the victim of the group of defendant. The assumed attack which could have been criminal never occurred, thus, eliminating probable cause for arrest. There was no apparent victim for the criminal act that will constitute assault, a basic premise of Penal Code 12024 alleged as violated by defendant, thereby eliminating all reasons for a probable cause. It is clear from the charge which is violation of Penal Code 12024 that the officers lacked articulable facts to justify a belief that the defendant was engaged in any criminal activity. The defendant was never apprehended for any offense during the arrest and the warrant of arrest issued against the defendant was illegal because the allegation did not constitute probable cause. C. Defendant Was Charged of Deadly Weapon Where There Was None By virtue of the 2008 Dangerous Weapons Law, sections 12020 through 12040, a “glass vase” in possession of Velasco does not constitute a dangerous or deadly weapon. Specifically, section 12020 (a) (1) states that weapons are characterized as: “(1) Manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any flechette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” In the instant case, the arresting officer violated the constitutional right of defendant through arrest without probable cause, failure to present any deadly weapon that is legally admissible as violating Penal Code 12024, lacked subject for assault for which Penal Code 12024 specifically indicated, and failed to present any criminal act that will entail arrest. Defendant was illegally arrested without probable cause in consideration of the absence of any dangerous or deadly weapon in his person during his arrest aside from the lack of crime done during the arrest. Arresting officer failed to produce probable cause, that there is subject for assault which is clearly stated in section 12024 of the Penal Code in order for Velasco’s actions or possession to be considered as such. The District Court erred in issuing a Warrant of Arrest in admitting the allegations of the arresting officer against defendant in possession of deadly weapon. The arrest lacked probable cause. Confiscation of a possession by defendant is a violation of the Defendant’s constitutional right of illegal search and arrest. The assumption of a glass vase, a common, everyday object in the possession of the defendant used as evidence for deadly weapon was baseless for the lack of corroborating action and subject for assault committed by the defendant during arrest. His arrest for possession of deadly weapon should be overturned. Read More