IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA, *

*

*

v. * CASE NO. 2:06cr198

*

RONALD MCQUEEN *

MOTION TO SUPPRESS

COMES NOW the Defendant, Ronald McQueen , by and through his

undersigned counsel, Susan G. James, and pursuant to Rules 12 and 41 of the

Federal Rules of Criminal Procedure, and the Fourth Amendment to the United

States Constitution, and moves this court to suppress any items seized during the

searches of 8833 Ashland Park Drive, Montgomery, Alabama, 2200 Windsor

Avenue, Montgomery, Alabama, a tan Saturn vehicle, and statements made by

McQueen during or subsequent to the search. McQueen requests that the court 

prohibit the government from introducing any statement made by McQueen or

any items seized as a result of the searches.

INTRODUCTION

The drug and non-drug evidence seized in this case to be used by the

government in this prosecution was seized as a result of two searches . These

searches included searches of residences McQueen with which he was known to

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be associated and a vehicle he was driving. Subsequent to the searches ,and after

his arrest, McQueen made statements to law enforcement assuming responsibility

for all the contraband obtained from the searches .

As McQueen best understands the governments case, an informant was

working with law enforcement and advised them of McQueen’s alleged drug

activity. Evidence in discovery reveals that the informant professes to have

observed the defendant in possession of drugs during the previous month. 

On July 26, 2006 law enforcement directed the confidential informant to

contact McQueen to conduct a drug transaction. The two were allegedly supposed

to meet on Cherry Street.

Law enforcement set-up surveillance. The police were aware McQueen had

outstanding traffic warrants. A stop was executed on the vehicle in which

McQueen was traveling. Pursuant to a search of the vehicle approximately two

kilograms of cocaine and 27.25 grams of ecstasy were seized. The ecstasy was

purportedly removed from McQueen’s pocket. 

 A search warrant was then obtained for 8833 Ashland Park Drive, a

residence believed to be occupied by McQueen and his girlfriend Terra Aaron. 

During the document and currency search drugs were located. It is reported the

search was stopped until the search warrant could be amended to include drugs

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and signed by a municipal judge.

Around the same time law enforcement sought a consent search of 2200

Windser, McQueen’s mother’s house. It is reported that McQueen’s uncle ,Larry

Mitchell, gave consent to search the premises. During the search drugs and nondrug evidence was seized.

After his arrest McQueen gave a statement to law enforcement assuming

responsibility for all of the contraband law enforcement found during the searches.

McQueen seeks suppression of all items seized from 8833 Ashland Park

Drive, 2200 Windsor Avenue, a tan Saturn vehicle, and any and all statements

made by McQueen prior to and after his arrest.

McQueen raises the following argument in favor of suppression.

ARGUMENT

A. THE SEARCH WARRANT WAS INVALID AS THE

INFORMATION USED TO AUTHORIZE IT WAS STALE AND THE

INFORMANT UNRELIABLE

A variety of drug and non-drug evidence was seized from the 8833 Ashland

Park Drive location subsequent to an unlawful search and seizure of a vehicle

McQueen was driving on July 26, 2006. A cooperating informant had stated he

had seen drugs at the Ashland Park Drive location the previous month.

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We have developed a staleness doctrine in the context of probable cause

which requires that the information supporting the government’s application for a

warrant must show that probable cause exists at the time the warrant issues. 

United States v. Bervaldi, 226 F.3d 1256, 1264 (11 Cir. 2000) The officers

th

suggestion that the informant was reliable is insufficient to support the acquisition

of the warrant.

B. POLICE LACKED PROBABLE CAUSE TO STOP MCQUEEN

AND SEARCH THE TAN SATURN

Defendant argues that the police lacked probable cause to stop his vehicle

and that they acted on a hunch and mere suspicion.

McQueen alleges that the search of the vehicle on July 26, 2006 was illegal

and that any evidence found in the vehicle was illegally seized and should be

suppressed. Furthermore, due to the illegal search and seizure any statement he

gave should be suppressed as fruit of the poisonous tree.

The Fourth and Fourteenth Amendments are implicated in this case because

stopping an automobile and detaining its occupants constitute a seizure within the

meaning of those Amendments. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct.

1391, 59 L. Ed. 2d 660 (1979). A traffic stop is a seizure within the meaning of

the Fourth Amendment. A routine traffic stop is only a limited form of seizure, it

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is more analogous to an investigative detention than a custodial arrest. United

States. v. Purcell, 236 F.3d 1274, 1277 (11 Cir. 2001), cert. Denied, 534 U. S. th

830, 122 S. Ct. 73, 151 L. Ed. 2d 38 (2001).

The stop may have been pretextual. But under Whren v. United States, a

traffic stop, even if pretextual, does not violate the Fourth Amendment if the

officer making the stop has probable cause to believe that a traffic violation has

occurred. This is an objective test based on the facts known to the officer at the

time of the stop, not on the motivations of the officer in making the stop. On the

other hand, if it is clear that what the police observed did not constitute a violation

of the cited traffic law, there is no objective basis for the stop, and the stop is

illegal. United States v. Escalante, 239 F.3d 678, 680-81 (5 Cir. 2001). th

Law enforcement officers may detain a person briefly for an investigatory

stop if they have a reasonable, articulable suspicion based on objective facts that

the person has engaged in, or is about to engage in, criminal activity. The

‘unreasonable suspicion’ must be more than ‘inchoate and unparticularlized

suspicion or hunch. United States v. Powell, 222 F.3d 913, 917 (11 Cir. 2000) th

(citing Terry v. Ohio, 392 U.S. 1 (1968)). Reasonable suspicion is determined

from the totality of circumstances and collective knowledge of the officers. 

United States v. Acosta, 363 F.3d 1141, 1145 (11 Cir. 2004).Whether reasonable th

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suspicion existed at the time [of the investigatory stop] is a question of law to be

determined ultimately by judges, not policemen....[T]he question...is not whether a

specific arresting officer...actually and subjectively had the pertinent reasonable

suspicion, but whether, given the circumstances, reasonable suspicion objectively

existed to justify such a search. Hicks v. Moore, 422 F.3d 1246, 1252 (11 Cir. th

2005) (citing Evans v. Stephens, 407 F.3d 1272, 1280 n.9 (11 Cir. 2005) (en

th

banc)).

C. THE SEARCH OF 8833 ASHLAND AVENUE, MONTGOMERY,

ALABAMA WAS ILLEGAL.

The police obtained a warrant for documents and currency despite the fact

that McQueen had already been stopped and found in possession of drugs within

the vehicle he was driving and on his person. Despite this fact the warrant only

sought non-drug evidence. During the search controlled substances were found. 

McQueen contends that stopping the search and amending the warrant at that point

did not cure the Fourth Amendment violation. 

Seizure of personal property is per se unreasonable unless it is

accomplished pursuant to a judicial warrant issued upon probable cause and

particularly describing the items to be seized. United States v. Place, 462 U.S.

696, 701 (1983). As the Supreme Court has consistently noted, evidence

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obtained in violation of the Fourth Amendment cannot be used in a criminal

proceeding against the victim of the illegal search and seizure. Weeks v. United

States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961). This

exclusionary rule includes the “fruits” of such illegal conduct. Wong Sun v. United

States, 371 U.S. 471 (1963).

The Warrant Clause of the Fourth Amendment categorically prohibits the

issuance of any warrant except one particularly describing the place to be searched

and the persons or things to be seized. The manifest purpose of this particularity

requirement was to prevent general searches. By limiting the authorization to

search to the specific areas and things for which there is probable cause to search,

the requirement ensures that the search will be carefully tailored to its

justifications, and will not take on the character of the wide-ranging exploratory

searches the Framers intended to prohibit. Maryland v. Garrison, 480 U. S. 79,

84, 107 S.Ct. 1013, 94 L.Ed. 2d 72 (1987).

D. THE SEARCH OF 2200 WINDSER AVENUE WAS ILLEGAL.

The consent obtained from Larry Mitchell, McQueen’s uncle, was limited in

scope to his bedroom only. The scope of the search exceeded the bounds of the

limited consent. Drug and non-drug evidence was seized. The search involving

the seizure of the drug evidence was overly broad and warrentless.

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The evidence reveals that McQueen has and does stay at his mother’s

residence 2200 Windser Avenue.

The Supreme Court has stated that “status as an overnight guest is alone

enough so that [Mr. McQueen] had an expectation of privacy in the home that

society is prepared to recognize as reasonable.” And thus such a guest has

standing to challenge a warrant less search. Minnesota v. Olson, 495 U. S. 91, 96,

110 S.Ct. 1684, 1688 (1990). See also United States v. Thomas, 372 F.3d 1173,

1176 (10 Cir. 2004) (Defendant, as an overnight guest, had standing to challenge th

warrantless search of the apartment owned by his aunt and uncle). Therefore, Mr.

McQueen has standing to challenge the validity of the search.

The premise of common authority to consent to a search rests on mutual use

of the property by persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the co-inhabitants has the

right to permit the inspection of his own right and that the others have assumed the

risk that one of their number might permit the common areas to be searched. 

United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 39 L.Ed. 2d 242

(1974) A search is impermissible when an officer does not conform to the

limitations imposed by the person giving consent... United States v. Zapata, 180

F.3d. 1237, 1242-43 (11 Cir. 1999). th

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E. MCQUEEN’S STATEMENTS SHOULD BE SUPPRESSED.

The exclusionary rule also prohibits the introduction of derivation evidence,

both tangible and testimonial, that is the produce of the primary evidence, or that

is otherwise acquired as an indirect result of the unlawful search. Murray v.

United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed. 2d 472 (1988).

The government cannot violate the Fourth Amendment-in the only way in

which the government can do anything; namely through its agents-and use the

fruits of such unlawful conduct to secure a conviction. Nor can the government

make indirect use of such evidence for its case, or support a conviction on

evidence obtained through leads from unlawful obtained evidence. All these

methods are outlawed, and convictions obtained by means of them are invalidated,

because they encourage the kind of society that is obnoxious to free men. Walder

v. U.S. 347 U.S. 62, 64-65, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

Respectfully submitted,

s/Susan G. James

SUSAN G. JAMES

Attorney at Law

600 South McDonough Street

Montgomery, Alabama 36104

Phone: (334) 269-3330

Fax: (334) 834-0353

E-mail: sgjamesandassoc@aol.com

Bar No:ASB79576J64S

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CERTIFICATE OF SERVICE

I hereby certify that on September 13, 2006, I electronically filed the

foregoing with the Clerk of Court using the CM/ECF system which will send

notification of such filing to the following: 

Tommie Brown Hardwick

 Assistant United States Attorney

P.O. Box 197

Montgomery, Alabama, 36101

Respectfully submitted,

s/Susan G. James

SUSAN G. JAMES

Attorney at Law

600 South McDonough Street

Montgomery, Alabama 36104

Phone: (334) 269-3330

Fax: (334) 834-0353

E-mail: sgjamesandassoc@aol.com

Bar No: JAM012

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