Feb 2010-MPT 01-Score 35.90-Written-ID 001

Draft of the Arguments

From: Applicant

To: Monica Pierce

Date: February 23rd, 2010

Re: State vs. Brian McLain

I was requested to draft the argument section of our post-hearing brief. The arguments will be based: 1. On the lack of reasonable suspicion justify the stop of our client and 2. The suppression of the lesser-included offense of possession of equipment to manufacture methamphetamines.

Argument 1

1. A police officer should have a reasonable suspicion to justify a valid search and seizure of a vehicle.

The 4th amendment of the Constitution of the United States, grant that in order to have a valid search and seizure of a Person, the Officer needs to have a probable cause or valid warrant of arrest.

In order to have a valid warrant arrest the Police officer must receive a warrant from a unbiased magistrate, stating the time, day and person that should be arrested.

Moreover, probable cause is paramount. To determine whether there was probable cause and the suspicion was reasonable, courts look at the totality of the circumstances of the case. In the present case, the Police Officer seizure and arrested Defendant after an anonymous call to the police department, where the unidentified person stated the following facts: 1. A guy bought 2 boxes of Sudafed cold medicine and some coffee filters and 2. He heard the man asking the cashier if Shop-Mart had quit selling engine starter fluid.

Additionally, the anonymous caller gave some characteristics of the man, such as "maybe mid 20's, with dark hair and one of those goatees. He's wearing jeans and a dark hooded sweatshirt." Furthermore, he mentioned that the man left the store and was walking toward a Red Jeep Cherokee.

Therefore, with that information the Police Officer went to the place where the Police Department said that the call was made from.

The police saw a Red Jeep Cherokee and the man appeared to be and have the same characteristics that the caller stated. However, this is not, in any reasonable way, a fact pattern of probable cause to arrest a person.

A tip from a source known to police especially one that had provided information in the past may be sufficient, in and of itself to warrant a tiny step. However, an anonymous tip is different; it must be corroborated such as by investigation or independent police observation of unusually suspicious conduct, and must be "reliable in its operation of illegality, not just in its tendency to identify a determinate person." This was stated in the case of Florida vs. JL 529US226772 (2000) and clearly applies to our case.

In the present case, the police officer Simon did not have a reasonable suspicion to stop the defendant. According to the facts, there was never any report on anything related to methamphetamines.

Moreover, the police officer did not make any reasonable search to try to find the informant in order to be able to rely on more information.

Additionally, there is no statute saying that buying coffee filters is illegal or that the mere fact of asking a store employee if the store stocks engine starter fluid would give reason to think that someone is committing a crime.

Furthermore, the defendant did not violate the speed limit to give a reasonable suspicion to the officer that maybe a crime has been committed or that it was about to be committed.

Therefore, because the tip relating to the identification of the person ("mid 20's"), the tip of the car (Red Cherokee) and the tip of the defendant's action (buying coffee filters) have a law degree of liability, more information was necessary to establish the requisite qualifications of suspicion.

Hence the tip, standing alone, was insufficient to provide reasonable suspicion for the officer's stop of McLain's vehicle.

Argument 2

2. Dismiss Count Two of the criminal complaint, possession of equipment to manufacture methamphetamines, as it is a lesser-included offense of Count Three, manufacture of methamphetamines.

When some event or transgression gives rise to 2 statutory offenses, courts must determine is one constitutes a less offense of the other.

This analysis is based on the comparison of the elements of both offenses, and if the elements of the greater crime include the elements of the lesser crime, the latter offense is a long-included and prosecution of both crimes violates double jeopardy.

The element of possession with intent to distribute, include rule 43 "equipment or chemicals for the purpose of manufacturing a controlled substance, methamphetamines, as the person who commits such offense is guilty of felony.

Therefore, because the elements of selling are included in the rule of manufacturing methamphetamines in crime code 557.