Opening Argument Pre-Trial

Your Honor, the defense moves to suppress evidence seized by

Detective Barron on July 7th, specifically, a hand written note

containing 4 names, as this note was seized in violation of the Fourth

Amendments protection against unreasonable searches and seizures.

Detective Barron was in the process of investigating an alleged

art theft when he came to Mr. Shems apartment. Detective Barron

had no search warrant, so the issue is whether Detective Barron had

legal consent to search the storage cabinet.

Your Honor, Detective Barron did NOT have consent for the

following reasons:

1. Evan Shems consent to search the apartment did not extend

to the storage cabinet.

2. Charlie Gibbons did not give consent nor did he have

authority to do so and it was objectively unreasonable for

Detective Barron to believe he had consented to search.

There is no debate that Evan Shem gave permission to Detective

Barron to search the APARTMENT. Detective Barron and Evan Shems

statements are consistent on this point. Both statement point out that

the detective asked IF HE COULD SEARCH THE

APARTMENT, to which Evan Shem agreed. Evan Shems statement of

consent was in direct response to the search of the apartment.

The facts are indisputable that Evan Shem NEVER told Detective

Barron that he had specific permission to search the storage cabinet.

We know from Stoner v. California that a police officers belief that he

had authority to search is unconstitutional if it is not objectively

reasonable. Detective Barron could NOT reasonable believe that Evan

Shems statement of sure. Take a look around extended to an

entirely separate building.

There are two cases on general consent that the defense expects

the prosecution to focus on, however they are factually distinguishable.

They are: U.S. v. Davis and Florida v. Jimeno . In these cases, the

Court upheld a police officers search of a bag inside of a car and a

bathroom inside an apartment. The Court held that it was objectively

reasonable for an officer to believe the scope of his consent included

these areas and that the defendant did not voice an objection to the

searches.

The difference here is that Mr. Shem did NOT EVEN KNOW Officer

Barron was searching was searching his cabinet, therefore had no

opportunity to give permission or to object. Also, Detective Barron did

NOT KNOW the storage cabinet even existed when he received

permission to search the apartments interior. Detective Barron had to

leave the confines of the apartment, walk across a parking space and

come to a carport separate and apart from Evan Shems living quarters

before he event found the cabinet. Then, he had to go back into the

apartment (using the back door!), remove a key from the kitchen, go

back outside to the carport and unlock the cabinet, all this while Evan
Shem was sitting on the couch unaware of what was happening. The

physical locations of the storage cabinet was too far removed from the

apartments interior for Detective Barron to have an objectively

reasonable belief that Evan Shem had given him permission.

Moving on to my second point, Detective Barron did not get

consent from Charlie Gibbons and could not have reasonably believed

he did. The facts are indisputable that Charlie Gibbons had moved out

of Evan Shems apartment on June 30 and no longer kept personal

possessions in the storage cabinet.

In order for Charlie Gibbons to be able to give consent to

Detective Barron, Detective Barron had to reasonably believe Charlie

Gibbons had joint access to the cabinet. Undoubtedly, the prosecution

will assert that Detective Barron reasonably believed that Charlie

Gibbons lived with Evan Shem. That the detective had seen Evan

Shem taking out the trash, parking in the spot marked B and knowing

the location of the storage cabinet key are the only facts that support

this. What is obvious is that the detective never ASKED Charlie

Gibbons if he lived there. In fact, the first time the detective saw

Charlie Gibbons taking out the trash, he asked, Do you know Evan

Shem? That is NOT the kind of question one would ask if he believed

that Charlie Gibbons lived in the apartment. Rather, he would ask, Is

Evan home?
 Lastly, Detective Barron could not have reasonably believed

Charlie Gibbons gave him consent with the simple statement The key

is in the kitchen. According to Gibbons statement, he did NOT even

know that Detective Barron was conducting a search of the apartment.

The detective asked Gibbons about the storage cabinet and Gibbons

CONFIRMED that it belonged to EVAN and said the key was in the

kitchen.

That Detective Barron could have eliminated all doubts by simply

asking Mr. Shem for permission which would have been denied.

Rather, Detective Barron entered through the back door, helped

himself to a key, walked back outside and opened the locked cabinet

and looked through boxes contained inside.

Your honor, this search was clearly in violation of the fourth

amendment as Detective Barron did not have consent to undertake it.

Therefore, the note seized by Detective Shem should be suppressed.

Thank you, your honor.

had given him consent to search was if Detective Barron believed

that Charlie Gibbons had joint access. In U.S. v. Davis, one roommate

gave consent to a police officer to search the entire apartment. A gun,

which was found under his absent roommates bed was excluded
because the consenting roommate did not have the authority to do so.

The Court held that the roommate did not have joint access to the

duffel bag, nor did the absent roommate give express permission.

As to my second point, Charlie Gibbons did not give consent to a

search of Evan Shems storage cabinet nor did he have authority.

Detective Barron should not be led to believe that Gibbons would

give consent to the storage cabinet if he did not give consent to search

the apartment the day prior.

When Detective Barron asked Gibbons to search the storage

cabinet, he did not give consent. His response was The key is inside.

Nowhere in Mr./Mrs. Gibbons response did he say yes or no. Detective

Barron should not have been led to believe that he said yes to consent.

The defense would like to point to the case of

Last, if it is deemed that Mrs./Mr. Gibbons did indeed give

consent to search, Mrs./Mr. Gibbons did not have authority to give

consent. Mr./Mrs. Gibbons moved out of Evan Shems apartment on

June 30. The defense would like to point to the case of

when it is stated that in order to give consent to search an area, you

must have joint occupation. Charlie Gibbons did not have joint

occupation, therefore he does not have authority to give consent.

In the case of Stoner vs. California (US). A stoner was

suspected of robbing a bank. Police learned that he was staying at a

hotel. When the police arrived at the hotel, they asked the hotel clerk if

he could search the stoners hotel room. The clerk consented to a

search of the hotel room. The issue was if the clerk had authority to

give consent. The court holding was that the clerk did not have

authority to give consent and the police officers belief that the clerk

did have authority to consent was unreasonable (use this for Charlie

gibbons)

Your Honor the defense moves to suppress the evidence seized

by Detective Barron, the evidence being the handwritten not

containing the names of four artistic experts who all owned work from

Fletcher Yazoo, because the search of the storage cabinet was

unreasonable under the Fourth Amendment.