______
FOR ______COUNTY
3.5 & PROB. CAUSE Hearing request & briefPage 3
MEJ-______-6/6/12 / Michael E. Jones, PS
3306 Wetmore Ave.
Everett, WA 98201
425-259-4510
FAX 425-259-3733
______
Plaintiff,
vs.
______
Defendant. / NO. ______
CrRLJ 3.5 AND PROBABLE CAUSE HEARING REQUEST, BRIEF IN SUPPORT OF 3.5 AND SUBPOENA APPLICATION
TO: / ______
______, ______County
______
______/ ______
PROSECUTING ATTORNEY
______
______
NOTICE IS HEREBY GIVEN that the defendant by and through counsel of record, Michael E. Jones, pursuant to CrRLJ 3.5, respectfully requests that, if the prosecution intends to offer any statement(s) of the accused as evidence, the statement(s) of the accused be first submitted to the pretrial procedures set forth in CrRLJ 3.5. The defendant further requests that as a threshold issue, the prosecution establish the validity (probable cause) of the custody. The defendant further requests that the arresting officer and any other witnesses to any of defendant’s statements to be offered be subpoenaed to any scheduled pretrial hearing.
BRIEF
A request for a hearing pursuant to CrRLJ 3.5 initiates a pre-trial investigation into the constitutionality of the police investigation and the evidence they collected. Rule CrRLJ 3.5 places the burden of going forward and the burden of proof upon the prosecuting attorney.
See: State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984) at 733, “the state has the burden of proving that a warrantless search falls within one of the recognized exceptions.”
There are no cases discussing the application of CrRLJ 3.5; however, the rule is virtually identical to the superior court rule and by analogy the superior court cases should apply. The only significant difference between the 3.5 rule, is that it is invoked automatically in every superior court action; whereas, to be available in courts of limited jurisdiction, it must be demanded in writing by the defendant. This written request initiates the 3.5 hearing process that would be automatic in superior court and places the responsibility with the court to schedule the hearing.
The responsibility in a 3.5 hearing is upon the prosecutor, not only to identify and qualify the defendant’s statements, but also requires that the constitutional basis (probable cause) for the custody be established as a threshold issue for admissibility. See: State v. Nogueira, 32 Wn.App. 954, 650 P.2d 1145 (1982), “Until an arrest has been shown unlawful, any evidence derived from the arrest must be suppressed because possibly “infected” by an illegal arrest, -- the fact that proper Miranda warnings were given does not cleanse the statement if it was obtained in violation of Nogueira’s Fourth Amendment rights,” at 956.
Prosecutors often inquire regarding which statements the defense seeks to suppress and whether the defense challenges probable cause to stop or probable cause to arrest. In addition, prosecutors frequently ask for (or object to holding a 3.5 hearing without) an affidavit specifying the defendant’s particular objections. It is important to note that a 3.5 hearing is not a suppression hearing and does not invoke the requirements of CrRLJ 3.6. In fact, that rule specifically excepts 3.5 hearings from the requirements for a factual statement from the defense counsel. See: CrRLJ 3.6(a), “Motions to suppress physical, and, or identification evidence other than motions pursuant to Rule 3.5 shall be supported by an affidavit…” (Emphasis added.)
Probable cause or challenge for lack of probable cause is not a motion to suppress as discussed in Rule 3.6. Technically and legally it is a challenge to prove constitutional validity as a prerequisite or precondition of presentation to the finder of fact. This makes probable cause challenges virtually identical to challenges to the validity or admissibility of defendant statements, pursuant to Rule 3.5. As such, the burden to go forward and establish constitutional validity rests with the prosecution, and the defense does not bear a burden of establishing what the police actually did or should have done.
Nonetheless, please consider this the defendant’s formal motion to exclude defendant statements and dismiss the charge(s) unless and until the prosecution first establishes constitutionally adequate probable cause to stop and/or arrest. With regards to declarations of actual or required facts, the defense declines to perform the prosecution’s responsibilities for them; however, we stipulate (without admitting relevance, materiality or competence) that the facts in the requested police narrative will be asserted by the prosecution in support of the propriety of the stop and arrest in this case.
RESPECTFULLY SUBMITTED this ______day of ______, 20___.
Michael E. Jones, PS
______
Michael E. Jones, WSBA #331
Attorney for ______
3.5 & PROB. CAUSE Hearing request & briefPage 3
MEJ-______-6/6/12 / Michael E. Jones, PS
3306 Wetmore Ave.
Everett, WA 98201
425-259-4510
FAX 425-259-3733