r. MC
1234 Mother Copper Dr.,
Copper, CA 91234
Tel: (123) 123-1234
Defendant
in Pro Per
SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SANTA
CLARA
SANTA CLARA BRANCH
THE
PEOPLE OF THE STATE )
OF
CALIFORNIA, ) Case
No. 1-12-TR-123456
)
Plaintiff, ) NOTICE
OF MOTION TO
)
Vs. ) SUPPRESS
EVIDENCE;
)
Mr. MC ) DECLARATIONS;
)
Defendant ) POINTS AND AUTHORITIES
__________________________
)
TO:
PLAINTIFF., THE PEOPLE OF THE STATE OF CALIFORNIA, AND
TO THE PROSECUTOR FOR THE WITHIN-NAMED COUNTY:
PLEASE TAKE NOTICE that on the date set for the trial, May 24, 2008 at 10:00 a.m. in Department 23 of the above-entitled Court at 1095 Homestead Road, Santa Clara, California, Defendant will move the Court to suppress an evidence from Officer Copper’s note, from the back of the Notice To Appear (9876AA), pursuant to California Penal Code 1538.5.
This
motion is based on the grounds, the accompanying Declaration and Points and
Authorities, and on oral and documentary evidence to be presented at the
hearing on the motion before or during the trial.
DATED:
___________________________
Mr. MC
Defendant in Pro Per
DECLARATION
I,
Mr. MC, declare:
1. I am
the Defendant in the above-entitled action.
2.
On May
1, 2007, I was driving my vehicle towards the northbound direction on Lawrence
Expressway in Sunnyvale, CA, when I was stopped by Officer Copper of the San
Jose California Highway Patrol. Officer Copper got out of the vehicle and
indicated the intention to cite me for a Vehicle Code violation. I told Officer
Copper that “I was driving safely!”. Officer then told
me that he has already written down the license plate number of the green
minivan which was in front of my vehicle after I changed lane to the right.
And, he said, “I am going to take a statement from the driver of the green
minivan!”
3. Based
on both of the responses from an Informal Discovery, one of the statement was
recorded as follow:
“ALMOST
HIT ME 4XV2123 GRN MINIVAN”
4. The Declarant, “ME”, of the above mentioned statement was the
driver of the green minivan (or “GRN MINIVAN”) of license plate number 4XV2123.
5. The
above mentioned Declarant has not been identified
since the legal identification information of the Declarant
was never recorded in the statement.
6. According
to the response of Jay Smith from the District Attorney office, it responded as
follow:
“The officer is the only witness and his
address is the police department.”
7. According
to the response of Captain A. B. Shaw from the San Jose CHP office, it
responded as follow:
“b. The following witness will testify:
Officer Copper, #12345, San Jose CHP, 2020 Junction Avenue, San Jose, CA
95131.”
8. The
above mentioned witness is only Officer Copper, and the Declarant
of the statement, “ALMOST HIT ME”, was never mentioned in both responses from
an Informal Discovery.
DATED:
___________________________
Mr. MC
Defendant in Pro Per
POINTS AND
AUTHORITIES
ARGUMENT
I.
OFFICER
COPPER HAS FAILED TO IDENTIFY THE DECLARANT OF THE STATEMENT. THUS, THE
STATEMENT FROM THE DECLARANT IS HEARSAY.
Under Federal Rule of Evidence:
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
(1) Present sense impression.
A statement describing or explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter.
The statement, “ALMOST HIT ME”, may have been
taken by Officer Copper “immediately thereafter” from the Declarant
who was the driver of the green minivan. However, it is not reliable based on
the ground that the legal identity of the Declarant
was not recorded. For example, there were no full legal name, or driver license
number of the Declarant recorded. Therefore, the Declarant could be anyone who was driving that green
minivan of license plate number 4XV2123 at that time when the statement was
recorded.
Since the legal identity of the Declarant was not recorded “immediately thereafter”, the statement
of the Declarant should be considered as hearsay.
Moreover, as Officer Copper
replied, “I am going to take a statement from the driver of the green minivan!”
If Officer Copper took the statement after issuing me a citation, or at least
ten (10) minutes afterward, such statement, “ALMOST HIT ME!”, from the Declarant is considered hearsay since it was not taken
“immediately thereafter” which violates the Rule 803: Hearsay Exceptions; (1)
Present Sense Impression as mentioned above.
Therefore, either way, the
statement, “ALMOST HIT ME!”, is considered as hearsay
which will prejudice the trial outcome.
II.
RESPONSE
OF INFORMAL DISCOVERY MENTIONED ONE WITNESS WHO IS ONLY THE ARRESTING OFFICER
The responses from both the District Attorney
office, and the San Jose CHP office only mentioned that Officer Copper will be
the witness to be testified at the trial, and no other witnesses are mentioned.
III.
VIOLATED
DEFENDANT’S RIGHT TO CROSS-EXAMINE THE DECLARANT OR WITNESS
California Evidence Code Secion 1291
(a)
Evidence of former testimony is not made inadmissible by
the hearsay rule if the declarant
is unavailable as a witness
and:
(1)
The former testimony is offered against a person who offered
it in evidence in
his own behalf on the former occasion or
against the
successor in interest of such person; or
(2) The party against whom the former
testimony is offered was a
party to the
action or proceeding in which the testimony was
given
and had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that
which
he has
at the hearing.
If the Court ruled that such statement from
the un-identified Declarant is admissible, it will
violate the Defendant’s “right and opportunity to cross-examine the declarant” in open court due to the fact that the Declarant may have personal knowledge about this matter.
DATED:
___________________________
Mr. MC
Defendant in Pro Per
SUMMARY
Officer Copper has failed to
identify the Declarant, the driver of the green
minivan mentioned above, of the statement, and both offices of the District
Attorney and the San Jose CHP have not mentioned any witnesses other than
Officer Copper. Therefore, I respectfully submit this request to move the Court
to suppress any statements recorded by Officer Copper from the Declarant. If the Court insist
that the Declarant’s statement is admissible, it will
violate the Defendant’s right to cross-examine the Declarant
or witness due to the fact that such Declarant or
witness is un-identifiable. Moreover, such hearsay will prejudice the trial
outcome.
DATED:
___________________________
Mr. MC
Defendant in Pro Per