Patricia O’Connor LAW OFFICE OF PATRICIA O’CONNOR 45 West Jefferson - 12th Floor Phoenix, Arizona 85003 Telephone (602) 252-1800 Facsimile (602) 252-1878 State Bar No. 011942 Attorney for the Defendant Langford. IN THE MUNICIPAL COURT OF THE CITY OF PHOENIX COUNTY OF MARICOPA, STATE OF ARIZONA STATE OF ARIZONA, ) No. 5342902-1C, 2C, 3V, 4V ) Plaintiff, ) MOTION TO SUPPRESS ) EVIDENCE AND DISMISS vs ) WITH PREJUDICE DUE ) TO PROSECUTORIAL ___________________, ) MISCONDUCT ) Defendant. ) (Assigned to the Honorable ____________________________) Judge P. Johnson) COMES NOW the Defendant, ADAM S. LANGFORD, by and through undersigned counsel, with a motion to supress the evidence in this case, and to dismiss the case with prejudice due to prosecutorial misconduct. The State has acted in bad faith, attempting to conceal exculpatory information from the Defendant in violation of Brady, all of which is more particularly set forth in the attached Memorandum of Points and Authorities (incorporated herein by this reference). RESPECTFULLY SUBMITTED this 30th day of October, 1998. LAW OFFICE OF PATRICIA O’CONNOR _______________________________________ By Patricia O’Connor MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND The State charged the Defendant with violations of A.R.S. § 28-692(a)(1) and (2). Officer Kanavel, Phoenix Police Officer number 5833, was the only arresting officer in this case. Subsequent to Defendant’s arrest, Officer Kanavel was issued a departmental reprimand and suspended from the police force for falsely arresting a citizen for DUI violation and for destroying and falsifying police records to hide the fact of that arrest. The State was put on notice regarding this misconduct when counsel for the accused filed a discovery demand requesting inter alia a copy of Officer Kanavel’s police personnel through a motion to this Court filed August 31, 1998 (see Exhibit “A,” attached). The State refused to divulge this potentially exculpatory information in violation of Rule 15.1(e), Arizona Rules of Criminal Procedure. Counsel for the accused filed a Motion to Compel Discovery with this Court September 10, 1998, in a further attempt to obtain this discoverable information (see Exhibit “B”). The State opposed this request through motion to the Court dated September 15, 1998, moving that requested discovery be denied (see Exhibit “C”). This Court granted an in camera review of the requested documents approximately October 1, 1998, substantiating allegations of police misconduct through the revelation of a recent internal affairs investigation sanctioning Officer Kanavel for falsely accusing a citizen of DUI violation and subsequently attempting to “undocument” the arrest (see Exhibit “D”). THE LAW The credibility of the State’s sole witness is now impeached. Documentation from Officer Kanavel’s police personnel file indicating he accepted the findings and reprimand of an internal affairs probe into his misconduct render his testimony regarding instant offense nugatory. The Defendant therefore moves to supress all information regarding the initial stop and arrest in this case. The Arizona Court of Appeals recently examined Fourth Amendment exclusionary rule requirements for the suppression of evidence in State v. Blackmore, 183 Ariz. 473, 479, 904 P.2d 1297 (App. 1995), adopting the Brown factors defined by the United States Supreme Court. Those factors are threefold: l) temporal proximity, 2) intervening circumstance, and 3) “purpose and flagrancy of the police misconduct.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The recent internal affairs investigation into the behavior of Officer Kanavel revealed dishonesty in attempting to “undocument” an illegal DUI arrrest, and a long-standing pattern of questionable practices while on patrol. Only the most cursory examination into the “purpose and flagrancy” of Officer Kanavel’s misconduct, as defined by Brown and adopted by Blackmore, is necessary to justify suppression of the evidence in this case. Additionally, the State’s failure to disclose what it knew it be exculpatory evidence until ordered by this Court to do so, in violation of Rule 15.1(a)(7) of the Arizona Rules of Criminal procedure, rises to the level of prosecutorial misconduct. Failure to disclose this information was clearly violative of due process. See, Dunlap v. City of Phoenix, 169 Ariz. 63, 68, 817 P.2d 8 (App. 1991). The prosecution’s duty to disclose exculpatory evidence to a criminal defendant arises out of the due process clause of the Fourteenth Amendment to the United States Constitution. See, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342, 352 (1976); Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). See also, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)(“nondisclosure of evidence affecting credibility falls within this general [Brady] rule”), cited in State ex rel. Romley v. Superior Court, 172 Ariz. 232, 239, 836 P.2d 445 (App. 1992). The State’s continued denial of this exculpatory report after repeated defense requests for the material constitutes bad faith and prosecutorial misconduct. Defendant therefore moves that this case be dismissed with prejudice. Interfering with defense preparation by denial of Brady material warrants this dismissal. Considered in entirely, the defense of this case has been an arduous pursuit of due process. Constitutional safeguards established to insure equitable treatment at the hands of the prosecution have loomed as obstacles in this pursuit, rather than the reassuring jurisprudential guideposts they were intended to be. Equity and good conscience now require that the case be dismissed. WHEREFORE, premises and judicial precedent considered, Defendant moves that evidence in this cause be dismissed and, further, that the case be dismissed with prejudice due to manifest prosecutorial misconduct. RESPECTFULLY submitted this 30th day of October, 1998. LAW OFFICE OF PATRICIA O’CONNOR _______________________________________ By Patricia O’Connor By Patricia O'Connor Copy of the foregoing delivered this 30th day of October, 1998, to: Clerk of the Court Phoenix City Court 400 North Seventh Street Phoenix, Arizona 85006 and a COPY delievered to: Phoenix City Prosecutor 455 North Fifth Street Phoenix, Arizona 85004 ____________________ Patricia O’Connor