Motions BNTN by liaoqinmei


									1. The Orange County Public Defender’s Office, the attorney on the record for Mr. Lam
Nguyen, the defendant, moves this court to suppress any and all statements made by him
to the officials of the Westminster City Police Department in relation to the above-referenced
case, and further to suppress evidence: 300 mg of cocaine, seized by law enforcement in
relation to the above-referenced case. The defendant submits the following in support of
this motion:
The defendant, Lam nguyen, was stopping lawfully at the intersection of Bolsa and Bushard
streed, Westminster CA at approximately 4:30 AM on February 12, 2010. On that morning,
the defendant was approached by John Doe who is an officer employed by the Westminster
Police Department. Officer Doe immediately asked Nguyen to step out from his car, and he
conducted a search of the defendant’s car. The officer retrieved from the defendant’s
passenger glove compartment a white bag that contained 300 mg of cocaine. The
defendant was then arrested, placed into a patrol car, and transported to the Westminster
Police Station.
At the police station, the defendant was taken to an interrogation room and was interrogated
by Officer Dan White without first being made aware of his rights. The defendant was not
advised of his Miranda rights under the Fifth Amendment and, even if he has been advised,
the defendant was in no state to knowingly or intelligently waive those rights. The officer did
not give the defendant any means to contact a lawyer. The defendant was then booked into
the Orange County Jail on the charge of the Possession of illegal drugs.
The defendant now contends that his Fourth Amendment right against unlawful search and
seizure was violated as well as his rights under the Fifth Amendment to counsel and due
process. The defendant asks this court to suppress the cocaine and any statements made
to law enforcement officials in relation to his arrest and his interrogations.

(BN Tonnu, Motion to suppress, For educational purpose only)
2. Good morning ladies and gentleman, thank you for coming today. According to the motion
filed by the attorney on behalf of his client, Mr. James Olmos, the defendant in case number
FA019233 will move to suppress evidence seized by the police department under penal code
section 1538.5.
The search is described in the police report attached as exhibit 1. I had to continue this hearing
until today’s date since I’ve been bogged down, for lack of a better word, to review the
memorandum of points and authorities, the supporting declarations, affidavits, and the
transcript of the preliminary hearing which are all necessary for me to make a decision in this
case. I have determined that all the elements of the motion are in order so I am ready to
proceed with this hearing.
All physical evidence seized as a result of this search will be challenged based on alleged search
and seizure violations that occurred when the officer opened the boxes during the alleged
police invasion in this case. It is stated in the arguments in this motion that the police action
was without warrant and lacked sufficient cause to justify the invasion of liberty complained by
the defendant.
Needless to say the motion invokes the 4th and 5th amendment rights and the defense contends
that these rights were violated on the day of the alleged illegal police action. I have also
received the prosecution’s declarations and points & authorities in opposition to the motion
and it will be the order of the court today to obtain an affidavit from the police officer as soon
as possible because I am inclined to rule against the defendant’s motion based on his testimony
which indicates to me that there was probable cause for the search and subsequent seizure of
the boxes containing rock cocaine.
At this point counsel, the order of the court as in the case of the prosecutor’s declarations is to
turn them in as soon as possible. Please notify the court and all the appropriate parties when
you have the affidavits. I will enter the appropriate orders as soon as I receive the additional
information requested today. I understand the defendants also wish to file a motion for
severance of parties. Counsel, the motion is very well supported by the appropriate arguments
and points and authorities. I will grant the motion for severance of parties. Thank you very
much for coming today.

(Motion to suppress, BN Tonnu, For educational purpose only)
3. By not being afforded a speedy trial on the charges in this case, the Defendant has
been denied his constitutional rights under both the state and Federal constitutions as
well as under California Criminal Procedure Rule 36.

Under Rule 36, when the defendant is not brought to trial within the prescribed time
period, he is automatically entitled to a dismissal when he (a) has not acquiesced to
the delay, (b) is not responsible for the delay, and (c) and does not benefit from the
delay. In such a case, the burden shifts to the prosecutor to justify the delay.

That prejudice is addressed by California Criminal Rules 36(c)(1) and (2), which
require that the defendant establish that the delay he has suffered is unreasonable, that
it was caused by the prosecution, and that he has been prejudiced by the delay.

In this case, the delay has been caused repeatedly by the unpreparedness and
procrastination of the Prosecutor. Significantly, the key of the People’s witnesses
have gained substantial training and education during the four years, so that they will
appear to the jury to be considerably more knowledgeable than they actually were at
the time the child was first interviewed and at the time the child's memory and
perception of events was first distorted or contaminated. The child herself has gone
through different stages of development.

As a result of the unjustifiable delay by the People in bringing the charge forward first
in District Court and then, when it appeared that John Doe was going to get custody of
the child in Probate Court, in indicting and arraigning him in Superior Court, John
Doe has been caused considerable concern and anxiety. Thus the defendant has been
significantly prejudiced by the delay of trial thus far and will be further prejudiced by
even further delay of trial.

Therefore, the Defendant asserts his right to a speedy trial pursuant to Rule 36 and
thereby is entitled to dismissal with prejudice.

For the above reasons, a dismissal with prejudice of the charge against the defendant
is the only appropriate remedy by the Court.

               (BN Tonnu, Motion to Dismiss, for Educational purpose only)
4. COMES NOW, the Defendant, pro se undersigned and hereby states the

1. This action was commenced on Jan 15, 2010 by Plaintiff filing a Summons and
Complaint in County, Small Claims Court.

2. Defendant pro se appeared in person at the Pre trial conference and asserted
various defenses among which the alleged debt was outside the Statue of
Limitations. Discovery was granted at the Pre-trial since no evidence was attached
to claim to support their case. On February 5, 2010 the Defendant sent the
Plaintiff, First Set of Interrogatories, Production of Documents and Admissions
On February 20, 2010 Defendant telephone the Plaintiff’s office and spoke with
John Nguyen (handling this case), and was informed that he objected to all
interrogatory’s, production of documents or admissions.

The Plaintiff has failed to provide the Defendant with requested documents. The
Plaintiffs refused to answer any discovery question requiring the Defendant to file
a motion to compel.

Now therefore, as a result of Plaintiff’s failure and refusal to comply and to
provide the required documents, Defendant has been irrevocably harmed in his
ability to narrow the issues for the Court to consider. Thus the Defendant moves to
ask that the Court grant an Order to Strike Plaintiff from producing any evidence,
testimony, documents or other written, electronic or verbal matter at Trial.

(BN Tonnu, Motion to Strike, for Educational purpose only)
5. First, pursuant to California Rules of Civil Procedure Small Claims Rule 7.020 (b): “Any
party represented by an attorney is subject to discovery pursuant to California Rules of Civil
Procedure 1.28-1.380 directed at said party, without order of court. If a party proceeding
without an attorney directs discovery to a party represented by an attorney, the represented
party may also use discovery pursuant to the above-mentioned rules without leave of court.
When a party is unrepresented and had not initiated discovery pursuant to California Rules
of Civil Procedure 1.280-1.380, the opposing party shall not be entitled to initiate such
discovery without leave of court.”

Second, at Pre-trial Conference the Court granted Discovery.

Third, California Rules for Civil Procedures permits discovery as a method of narrowing the
issues for the Court to decide. All questions submitted where written to lead to admissible

Fourth, Plaintiff was served with Discovery, Interrogatory, and Admissions on March 21,
2009. (Copy of return receipt enclosed)

Fifth, California Rules for Civil Procedures Rule 1.340 prescribes the required time period
under which Discovery must be responded to 30 days after service. The court may allow a
shorter or longer time.

Sixth, the Defendant has not received notification from the Plaintiff, they object to

Seventh, the Defendant certifies on April 25,2009 the Defendant telephoned the Law Office
for Plaintiff and spoke with Linda Tran (attorney now handling the case since original
attorney no longer is employed with firm) informed myself that they did not need to answer
them and were not going to answer them.

Eighth, to date the Plaintiff has not provided the court with any answers to these requests.

The Defendant now, respectfully, requests the Court, enter an Order requiring the Plaintiff to
provide full and complete responses to the above request within five days of the order
granting Discovery.

(BN Tonnu, Motion to compel, for Educational purpose Only)
6. Defendant files this Motion to Suppress pursuant to the Fifth and Fourteenth
Amendments to the United States Constitution, Article 1, §§ 10, 13, 19; and Rules 102, 403,
702, 705 Rules of Evidence as follows:
  Defendant was arrested without a warrant and without probable cause to arrest. The
results of all tests taken after his arrest were fruits of an illegal arrest which were obtained in
violation of the United States Constitution, Amendment IV and in violation of Art. I of the
California Constitution. The results of the tests should be suppressed.
 California Pennal Code which defines the offense of driving while intoxicated requires the
State to prove the defendant's physiological condition while he was in actual physical
control of a motor vehicle.
    Additionally, the breath test results themselves have very little probity because of the
defective procedures utilized in obtaining the breath test result. Neither the subject test nor
the reference sample device was kept at a known temperature as required by California
Breath Alcohol Testing Regulations. Thus, the substantial prejudicial effect of the results
was out-weighted the probative value of the results on the issue of whether Defendant
committed the offense charged.
Defendant seeks that the Court will set this matter down for a hearing, and upon hearing
order that:
A. any and all evidence obtained as fruits of an illegal arrest be suppressed;
B. the results and any opinion concerning those results as they related to Mr. Huỳnh’s
earlier physiological condition be suppressed; and
C. the breath test results be suppressed.

(Motion to Suppress, BN Tonnu, For Educational purpose only)
7. John Nam through counsel, respectfully moves the Commission to quash the
Subpoena issued to him in the above-referenced investigation (the “Subpoena”)
Mr. Nam is not a party to the above-referenced litigation, and presumably would
be a non-party witness. A copy of the Subpoena is attached. The Subpoena was
issued on April 26, 2004, sent to Mr. Nam in an overnight mail for delivery on
April 27, and it demanded Mr. Nam’ presence in Washington, D.C. for trial
testimony on May 4, 2004 or some other unnamed date up to May 17.

Commission staff, however, informed counsel for Mr. Nam on April 29 that staff
would not be able to ascertain whether Mr. Nam’s testimony would be needed until
a status conference on Friday, April 30. Commission staff stated that they hoped
that an evidentiary stipulation could be reached that would eliminate any alleged
need for Mr. Nam’s testimony.
Subsequently, Commission staff informed counsel for Mr. Nam via voicemail late
Friday evening, April 30,that Mr. Nam would be called to testify on Tuesday, May
4. On May 1, May 2, and May 3, in subsequent conversations or voice mail
messages, staff equivocated and informed counsel for Mr. Nam that they were
uncertain whether Mr. Nam would be needed to testify at all.

As grounds in support of his motion, Mr. Nam states as follows.

Counsel for Mr. Nam has conferred with Commission staff as required by the
Commission’s Rule of Practice on May 2 regarding the burden imposed by the
staff’s last-minute Subpoena and the uncertainty of whether compliance was
necessary. Mr. Nam counsel told counsel staff that Mr. Nam resides in California
where his business is located.
Forcing Mr. Nam to travel approximately 2500 miles to and from Washington,
D.C. with less than three days’ concrete notice would be unduly burdensome. Mr.
Nam’ appearance at a later date in May would also be unduly burdensome because
of previously scheduled international travel. Mr. Nam’s counsel invited
Commission staff to consider less burdensome means of proving their case,
including relying upon business records and a declaration submitted in
connection with another Commission staff investigation of a product similar to that
of the product in the Tran administrative litigation. Staff declined.
8. Moreover, The Commission staff Subpoena was issued with inadequate notice.
The Subpoena apparently seeks Mr. Nam’s appearance on May 4, 2004, or some
other unnamed time, one week after the Subpoena was sent to Mr. Nam . Mr.
Nam, who resides in California, cannot reasonably be expected on less than a
week’s notice to interrupt his business and make arrangements for travel across the
country to appear in Washington, D.C. Further compounding
the lack of adequate notice to Mr. Nam is the uncertainty that Commission staff
cast on the necessity or timing of Mr. Nam’s appearance and the uncertainly as to
the specific date reflected in the subpoena itself. Even on the day before Mr.
Nam’s appearance might be required by the Subpoena, Commission staff was still
uncertain whether his appearance was necessary.

 The Subpoena imposes an undue burden on Mr. Nam personally, and threatens
to unduly disrupt and seriously hinder the normal operations of his business. Mr.
Nam’s wife is out of town this week due to a family medical emergency, and Mr.
Nam thus has child care obligations precluding him from traveling overnight.
Further, Mr. Nam is actively engaged in the operation of a business in California
and has ongoing commitments during the time period identified in the Subpoena.
Compliance with the Subpoena would unduly interrupt Mr. Nam’s business
activities, substantially hinder the normal operations of his business, and require
Mr. Nam to cancel his existing engagements and arrange to travel across the
country on virtually no notice and without any meaningful opportunity to arrange
for the conduct of his business and personal affairs during his absence. This undue
burden is not outweighed by the need for his testimony, which does not appear to
be greatly or at all relevant to the staff’s case.

The foregoing shortness of notice, combined with the purported exercise of
personal jurisdiction based national service of process by the Commission’s
Subpoena as applied in this matter violates the due process requirement of the U.S.
Constitution. Due process requires some measure of basic fairness be met to
satisfy constitutional requirements even in national service of process cases.
As a result of the unreasonably short notice and Mr. Nam’s lack of any individual
contacts with the District, the Subpoena imposes an undue burden on Mr. Nam and
deprives Mr. Nam of his right to due process of law under the United States
Constitution by requiring that he travel across the country on a few days notice in
order to comply with the Subpoena. For the foregoing reasons, Mr. Nam
respectfully requests that the Commission quash the Subpoena.
10. On or about November 29, 2007, Respondent served the Bank of America
subpoena on Petitioner while he was yet self represented. Because of his lack of
training, Mr. Do did not know the procedure to stop or limit production of his
bank records. On December 21, 2007 Respondent was also served with a Chase
CitiCorp subpoena, just prior to his retaining Jones Law and Mediation Offices to
represent him in this case. Ms. Jones office contacted Petitioner, Ilene Do’s
attorney Mr. Nguyen alerting him to the fact that both this Bank of America
subpoena and a subsequent Chase CitiCorp subpoena were overly broad as

The Discovery Act imposes a thirty day (30) discovery "cut-off" before the date
initiallyset for trial unless otherwise ordered, as set forth in California Practice
Guide Civil Procedure Before Trial at Chapter 8E-2,5(b), which in this case means a
December 14, 2007 deadline to issue their subpoena. The deadline is necessary
because a party would need time to timely file a motion to quash and all hearings
on motions have a fifteen (15) day deadline before trial. So where the document
in CitiCorp may be timely produced if the subpoena were not defective, still time
would need to be needed to file a motion to quash or a motion seeking a
protective order.

Thus, when Petitioner serves a December 21, 2007 subpoena with a production
date a mere 5 days before trial, there would scarcely be time to prepare one’s
case to consider the production. Moreover in accordance to California Rule of
Court 14.15, the parties are obligated to exchange exhibits (given the current trial
date of January 29, 2008) on January 22, 2008. The date of production on the
CitiCorp subpoena of January 24, 2008, even if it were proper, will not even
provide admissible evidence.

A motion to quash or limit Petitioner’s request for the Bank of America and
CitiCorp document request is warranted in this case, both subpoenas being in
violation of Respondent’s right to privacy to bank and consumer records prior to
his marriage to Petitioner. Not withstanding the foregoing, the CityCorp
subpoena must be quashed completely, because it was issued in an untimely

(Motion to quash, BN Tonnu, For Educational purpose only)
11. The Defendant, John Nguyen, in the above-referenced-and-numbered cause,
respectfully moves this Honorable Court to suppress the following evidence:
   1. All tangible evidence seized from her person or any vehicle, on March 1,
      2010, by law enforcement officers.
   2. Defendant would show the Court that said evidence was seized without a
      search warrant, and such seizure was in violation of the Fourth and
      Fourteenth Amendments of the United States Constitution; Article 1, Section
      9, of the California Constitution; Article 1.06 of the California Code of
      Criminal Procedure, and Article 38.23 of the California Code of Criminal
   3. Defendant would further show that the search by police officers was without
      probable cause or exigent circumstances and that, in the absence of a search
      warrant or an exception to the search warrant requirement, any evidence
      seized is inadmissible. Therefore, the Defendant respectfully asks that the
      Court grant this Motion in all things.
12. A suppression motion in a California DUI case typically challenges the results
of the chemical tests administered to determine blood alcohol content (BAC),
questions whether police officer had probable cause to make a traffic stop and
arrest, or both.

Motion to suppress based on whether or not police had probable cause to make a
traffic stop usually focus on whether or not the officer had a reasonable belief that
a crime was being committed. If the motion is successful, statements obtained as
the result of an unlawful arrest or search will be suppressed.

Any California Vehicle Code violation can establish probable cause for a traffic
stop; however, in most cases, the violation must occur in the officer's presence.
Police cannot stop a car just to determine whether the driver has a valid driver's
license and registration.

It is also unlawful to stop a vehicle in anticipation of discovering a vehicle code
violation or other contraband, such as drugs, when no actual probable cause has
presented itself to the officer before the stop.

Motions to suppress chemical test results generally center on whether the test was
conducted properly. If any of the strict guidelines surrounding chemical test
administration were not followed, the evidence probably will be suppressed. If the
motion is successful, evidence gained as a result of the test also would be
suppressed, such as observations of signs and symptoms of intoxication. A motion
to suppress can be brought on several different grounds.

California drivers accused of DUI fear that chemical test results and other evidence
means an automatic conviction, but that's not the case. Prosecution evidence is not
automatically admissible - it must meet strict legal requirements to be used at trial.
A California criminal defense attorney who concentrates on DUI defense will
challenge the admissibility of evidence to improve a driver's prospects at trial.
13. Plaintiff, by and through her attorney, Ronald Miller, requests that this Court
preclude evidence of the photographs of the vehicles involved in the subject
accident because expert testimony is required to correlate the property damage and
Plaintiff's alleged injuries. In further support, Plaintiff states as follows:

    This is a personal injury case involving an auto accident. During the course of
discovery, the Defendant has produced copies of photographs of the Defendant's
vehicle and the Plaintiff's vehicle (Exhibit A). Plaintiff does not, however, deny
that there was minimal damage to the rear of her vehicle or even that this was a
relatively low impact collision. Defendant claims that there was no property
damage at all to her vehicle. It is anticipated that Defendant will attempt to
introduce into evidence the extent of property damage sustained by both vehicles
in this accident as well as a description by the Defendant as to the level of the
impact between the vehicles.

    The law states that: Expert testimony is required "when the subject of the
inference is so particularly related to some science or profession" that it is beyond
the knowledge of the average layman. And if the evidence on an issue is such that
it would require the jurors to engage in nothing more than "sheer speculation," the
issue may not be submitted to the jury.

Furthermore, if photos and or testimony of damage are to be permissible, the
Defendant must provide expert testimony to the link between the two because it
creates a "complicated medical question" and without such testimony, it creates an
invitation to speculation. A complicated medical question occurs when one or
more of the following are present: (1) significant passage of time; (2) the impact of
the initial injury on one part of the body and trauma in some remote part; (3) the
absence of any medical testimony and (4) a cause and effect relationship that is not
part of common lay experience.
 14. In 2001, the Supreme Court of California held that: (1) as a general rule, a
party in a personal injury case may not directly argue that the seriousness of
personal injuries from a car accident correlates to the extent of the damage to the
cars, unless the party can produce competent expert testimony of the issue; (2)
counsel may not argue by implication what counsel could not argue indirectly,"
i.e., may not characterize the accident as a fender-bender or otherwise downplay
the seriousness of the accident; and (3) the court erred in admitting the photographs
of the Plaintiff's car without a specific instruction limiting the jury's use of the

   The issue of whether there exists a correlation between a small amount of
property damage and the likelihood of the plaintiff's injury does not simply
constitute a complicated scientific question. Rather, it constitutes a mixture of
several complicated scientific questions: (1) How much force was necessary to
produce the amount of damage to the plaintiff's car; (2) How is that force
transmitted through the car, and how much force was thereby exerted on the
plaintiff; and (3) What is the minimum, threshold force that is necessary to cause
Plaintiff's herniated disc?

   This issue involves such matters as the strength of metal and rubber, the
construction of a bumper, the materials that are used to construct a bumper (and,
importantly, the interior of a bumper), how a bumper acts during a collision, and
the construction and materials of the side walls of a car. It involves issues of
engineering, physics, design, and chemistry. Moreover, the force that would
produce a given amount of damage varies from vehicle to vehicle.
15. The issue of the amount of force is one issue and there is another issue as to
how much force was inflicted on the Plaintiff in the accident. This question, in
turn, involves how force and energy are transmitted though rubber, metal, and
fabric, dissipated though the transmission, and applied to a human body at the
opposite end of the car from the impact. The issue clearly involves issues of
physics and engineering. A lay jury cannot look at an amount of property damage
and conclude how much force was exerted on the plaintiff. Moreover, there is also
the scientific issue of whether the lack of substantial damage to the bumper
indicates that the plaintiff was subjected to a greater amount of force than that to
which the plaintiff would have been subjected if there were substantial damage.

   The issue is whether the rear part of the car had been crushed or warped, force
and energy would have been absorbed in the crushing or warping, or because the
rear part of the car was not bent, all of the energy of the impact was transmitted
through the car and onto the plaintiff's body.

   Finally, but most importantly, there is the question of what is the minimum,
threshold force that is necessary to produce an injury to the human body -- or,
more precisely, the specific injuries claimed to have been suffered by the plaintiff.
The human body is one of the most complicated contraptions in the universe.
Nobel Prizes have been won for explorations as what causes human injuries and
maladies. The concept of the causation on an injury is quintessentially a matter of
expert testimony. The mechanics of a body's movement in a collision, and the
effects on the spine, ligaments, muscles, tendons, and blood vessels is also a matter
of expert testimony. The issue involves questions of medicine and biomechanical
engineering. This point particularly applies to the defense's anticipated argument,
while holding up a photo of the damaged property, then ask the jury, "Does anyone
here believe that any person could possibly have been injured in this accident?"
16. The issue of whether there is a correlation between the amount of property
damage and the likelihood of injury would be a good subject for a Ph.D.
dissertation. The study would involve studies of a large number of actual cases,
along with assistance from physicists and engineers who would analyze the
construction of the vehicle and calculate the amount of force produced by the
collision and transmitted on the plaintiff. But a lay juror does not have the tools to
translate amount or degree of property damage to Plaintiff's injuries. A juror cannot
look at a photograph, speculate as to how much force was caused by the collision,
speculate as to how the force was transmitted through the car, speculate as to how
a human body behaves during a collision of the type involved in the case, and
speculate as to what causes an injury and what is the minimum force needed to
cause that injury.

Therefore, the Plaintiff respectfully requests that this Honorable Court to instruct
all parties, counsel and witnesses expected to testify that no person is to refer to,
interrogate, or attempt to convey or suggest to the jury, directly or indirectly: (1)
the amount of force between the two vehicles; (2) the speed of the striking vehicle;
(3) the amount of damage or lack thereof to either vehicle; (4) any correlation
between the force of the impact and the Plaintiff's injuries; (5) to precluded from
introducing any photographs of either vehicle at the trial of this matter.
17. Plaintiff, Jane Doe, by and through her attorney, Amy Jones requests that this Court preclude
testimony from Defendant's experts because they have not provided disclosure of their opinions as
required by California Rule 2-504(b)(1). In further support, Plaintiff states as follows:
   During the course of discovery, the parties have actively engaged in discovery by way of
depositions, interrogatories, request for production of documents, and requests for admissions.
Plaintiff propounded the following request for the production of documents:
1. All written reports of each person whom you expect to call as an expert witness at trial.
2. All documents upon which any expert witness you intend to call at trial relied upon to form an
3. The most recent resume or curriculum vitae of each expert whom you expect to call as an expert
witness at trial.
4. All notes, diagrams, photographs, x-rays or other documents prepared or reviewed by each
person whom you expect to call as an expert witness at trial.
   Plaintiff has not received any of the documents requested in her requests for production of
documents. On the day the Defendant's designation of experts deadline, defense counsel by
correspondence designated Dr. Joe Smith, M.D., and Dr. Mary Smith, M.D. See Exhibit A.
   The proffered "opinions" of the Defendant's experts are stated as follows: "It is anticipated that
both experts will testify that it cannot be said to a reasonable degree of medical probability that the
Plaintiff's medical condition was proximately caused by the accident in question." Id . Defendant's
experts never disclosed that their opinions would include anything beyond the extent of the above
statement. No peer review report was provided or any basis of support for their conclusions.
   California Rule 2-504(b)(1)(B) requires a Scheduling Order to include one or more dates by which
each party shall identify each person it intends to call as an expert witness at trial. By this very rule,
the party's designation must contain the information required by California Rule 2-402(f)(1) including:
the identity of the witness, the subject matter on which the expert is expected to testify, a summary
of the grounds of the expert's opinion, as well as a copy of any report prepared by the expert
concerning his or her opinions and findings. In this case, Defendant's deadline to comply with this
California Rule was on July 23, 2004
  Although the Defendant has identified the subject matter upon which its experts intend to testify,
Defendant has not provided a summary of the grounds of their expert opinion, nor has it attached a
copy of any report prepared by her experts concerning their opinions and findings. Even worse,
Defendant's designation is lacking any mention of what the expert opinions actually are. As such,
Defendant has failed to disclose its expert in compliance with the California Rules and the
Scheduling Order issued in this case and their expert opinions should be precluded.
Respectfully submitted,
18. On June 20, 2001, about midnight, Officer Smith of the Santa Ana Police stopped
Defendant in his car for turning without signaling. Officer Smith pulled Defendant
over, ordered Defendant out of the car, and patted him down. Finding nothing, Officer
Smith placed Defendant in the back seat of the police cruiser. Officer Smith searched
Defendant's car and discovered cocaine in the closed glove compartment. He also
made a computer inquiry for Defendant's license status, but the search was aborted by
a technical glitch. On a later computer attempt, Officer Smith learned Defendant's
license was suspended pending a reinstatement fee. Officer Smith cited Defendant for
not signaling and for driving under suspension.

The stop occurred in a "high drug crime" area. Officer Smith also knew, from a
separate previous incident, that Defendant had his license suspended for six months,
starting in June 2000. Defendant never resisted or acted belligerent during the stop.


For an officer to detain a person for reasons unrelated to the original purpose of a
traffic stop and make a search, an officer must have articulable facts giving rise to
reasonable suspicion that some illegal activity justifying the extended detention is
occurring. This need for additional, articulable facts holds even where the traffic stop
occurs late at night in a high crime area, or is in line with a drug enforcement policy.
Without the additional articulable facts, a valid, but routine, traffic stop will not justify
non-consensual search absent an immediate safety concern.

For example, a police officer rightly stopped and arrested a lone motorist for driving
while intoxicated. The officer saw no drug paraphernalia or other evidence of drug use
in the vehicle, yet he immediately placed the suspect in the patrol car and searched the
motorist's car. The officer found LSD in the glove compartment.
19. The Court held that the search of the car was unconstitutional because nothing led
the officer to believe the car might contain drugs. The drugs were not in plain view
and the officer witnessed no suspicious behavior. Nor was the search justified for
safety reasons because the detainee had complied with the officer and, being in the
cruiser, lacked immediate control over the car's contents.

Brown's scenario parallels ours. Defendant was the only person in his car. The officer
immediately ordered Defendant out of the car, patted him down, and placed him in the
cruiser. Officer Smith saw no drug paraphernalia or other evidence of drug use before
searching the car, and the cocaine he found was not in plain view. The car's contents
were never inventoried nor should they have been. Officer Smith's safety was not in
immediate question because Defendant never resisted arrest and, being in the cruiser,
he lacked immediate control over the car's contents.

Unlike the detainee in Brown, Defendant was driving at night through a high drug
crime area. But being in a high crime area does not, by itself, justify a warrantless
search of a vehicle. An officer still needs to perceive some suspicious behavior or
circumstance justifying the search.

Officer Smith saw no suspicious behavior. There were no furtive gestures, suspect
resistance, nervousness, vehicle alterations, volunteered information from Defendant,
or anything else to foster an articulable belief in Officer Smith that drugs could be in
the car or that a search was called for. With defendant secure in the cruiser, after a pat
down search, Officer Smith did not need to search Defendant's car to ensure his own
safety. Defendant never consented to the search. That the cocaine would inevitably
have been found in an inventory search is no argument because, with a turn signal
violation the only suspected offense, there would have been no reason to impound or
inventory the car.
19. The California Supreme Court overruled Brown in 2002, holding that when a
police officer has made a lawful custodial arrest of the motorist, the officer may, as a
contemporaneous incident of that arrest, search the passenger compartment of that car.
But the court reminded us that this rule applied only when there was already a lawful
custodial arrest. A police officer who searches a vehicle incident to issuing a citation
in lieu of an arrest in a routine traffic stop would violate the Fourth Amendment
absent an immediate safety concern or need to preserve evidence.

 Here, unlike Brown, the detention was still a routine traffic stop at the time of the
search, with only a citation issued for the traffic violation. Officer Smith had no
immediate safety concern or need to preserve more evidence for not signaling. Thus,
the search of Defendant's car was unreasonable, and the cocaine should be suppressed.

The continued search for Defendant's license status was also unjustified. The scope
and duration of an investigative stop must last no longer than is necessary to
effectuate the purpose for the initial stop. When an officer suspects a violation has
occurred regarding the operation of a car yet the suspicion proves inconclusive upon
investigation, the officer may not detain the motorist absent articulable suspicion for
some other offense. Any steps taken then are efforts only to gain a basis for suspicion.

In State, an officer stopped a motorist and his passenger who had been described as
"suspicious" by an anonymous caller to the police. The caller alleged that the men had
been lurking outside pharmacies supply stores. Both men had previous narcotics
convictions and when the officer stopped them in their car and questioned them, the
men gave contradictory statements about their previous activities. Later, still during
the stop, the officer confirmed that one of the men had presented a prescription to a
pharmacy for narcotics, but had been refused for being "kind of suspicious." The
officer obtained the driver's consent to search the car. When the officer found a
prescription receipt with neither man's name on it, he formally arrested both men.
20. Officer Smith may have had reason to ask Defendant for his driver's license
because he believed Defendant violated a traffic law. But once the computer glitch
occurred, Officer Smith, like the officer in Inabnitt, had no reason to detain Defendant
further to find a license suspension he had no articulable reason to believe existed.
Like the officer in Inabnitt, Officer Smith was trying to find a "basis" for suspicion,
not actually acting on a suspicion.

That Officer Smith knew of Defendant's previous six-month license suspension is no
argument because Officer Smith knew the suspension occurred at least a year before
the incident. Officer Smith had no reason to suspect that the license was still
suspended. For these reasons, the continued search for defendant's license status and
detention by Officer Smith was illegal.


No articulable facts existed to make Officer Smith reasonably suspect Defendant may
have done anything illegal except fail to signal. Before the search, there were no signs
of drug possession, and Officer Smith's safety was not immediately threatened.
Officer Smith had no reason to believe Defendant's license was suspended. Once the
computer search for Defendant's license status proved unfruitful, Officer Smith's
search for the license status prolonged Defendant's detention beyond the scope of the
original stop.

Thus, the cocaine found in the glove compartment, and the suspended license, should
be inadmissible as evidence against Defendant.

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