Motion to Exclude Cell Phone Evidence (Warrantless Search - Riley)

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF _______ ______ JUDICIAL DISTRICT

State of Minnesota, ) NOTICE OF MOTION AND

) MOTION TO EXCLUDE

Plaintiff, ) CELL PHONE EVIDENCE

vs. )

)

Mr. Client, )

) MNCIS File No. ___________

Defendant, )

)

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TO: THE HONORABLE (NAME JUDGE,) and (NAME PROSECUTOR)

MOTION

PLEASE TAKE NOTICE that on _______, ____ at ____ _.M. or as soon thereafter as counsel may be heard, Mr. Client by and through his counsel hereby moves this Court to suppress all cell phone evidence as described in the following motion and memorandum. Specifically, counsel for the Mr. Client moves the Court for the following Order, to-wit:

1. Suppressing all evidence obtained as a result of the illegal, warrantless search of Mr. Client’s cellphone by the police officers on (DATE);

2. That the illegal, warrantless search of Mr. Client’s cellphone cannot be cured by the Third Party Consent doctrine, as Ms. (CLIENT’S MOTHER) told the officers that the cellphone did not belong to her or her sons;

3. That the illegal, warrantless search of Mr. Client’s cellphone cannot be cured by the Exigent Circumstances doctrine, as the police officers had taken physical possession of the phone and have made no showing that there was any rational basis to believe the contents of the phone would be destroyed before the officers could obtain a valid search warrant for the cellphone;

4. That the illegal, warrantless search of Mr. Client’s cellphone cannot be cured by the Exigent Circumstances doctrine, as the police officers had taken physical possession of the phone and had several alternative ways to ensure that the contents of the phone were not destroyed before the officers could obtain a valid search warrant for the cellphone; and

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FACTS

On (DATE), Mr. Victim was shot in the neck by a young male in (name location), Minnesota. Mr. VICTIM had driven his girlfriend ( NAME) to a strip mall in (LOCATION)for Ms. _____ to sell marijuana to a man she had been communicating with on the social media site Facebook. Ms. Girlfriend was communicating with someone who was identified on the site as (NAME). When they got to the strip mall, it’s alleged that Mr. Client got into the car Mr. VICTIM was driving and instructed Mr. VICTIM to drive across the street to a townhome complex so he could get his money; they did. It’s alleged the man they think is Mr. Client gets out of the car and said he was going to get his money. He left the parked vehicle with Mr. VICTIM and Ms. Girlfriend inside.

A man returned wearing a mask with a gun and demanded money and goods from Mr. VICTIM. Mr. VICTIM gave the man the marijuana but said they did not have money. Mr. VICTIM threw the car in reverse and the man with the gun shot Mr. VICTIM in the neck. Ms. Girlfriend claimed the man who shot Mr. VICTIM was Mr. Client.

Ms. Girlfriend told police that she knew Mr. Client was friends with (person # 1), who lived in the housing complex that they had driven to. Person #1 was stopped by police leaving the area immediately after the shooting. Person #1’s told the officers that he knew of the shooting. Person #1 had marijuana on his person. Person #1’s phone contained a message allegedly from Mr. Client that his mother didn’t know “we did it” in regards to the shooting.

Mr. Client’s mother was home. She gave law enforcement consent to search her home. While looking in Mr. Client’s bedroom, Detective ____ found a mask, a phone, and nine .45 bullets. The Detective took the cellphone into his custody, and proceeded to search the contents of the phone, without a warrant. While the Detective may legally take into his possession the physical...