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.


IN THE MUNICIPAL COURT OF THE CITY OF PHOENIX

COUNTY OF MARICOPA, STATE OF ARIZONA


STATE OF ARIZONA,		)		Case No: 5530780 1-C, 2-C, 3-C
				)		
Plaintiff,			)		DEFENDANT'S REPLY TO
  vs				)		STATE’S RESPONSE TO 
				)		MOTION TO SUPPRESS
____________________,		)		
				)	
	Defendant.		)		(Hearing Set: 12/30/98
________________________________)		  Div. 15 at 8:30 a.m.)



	COMES NOW the Defendant, by and through undersigned counsel, hereby submitting a 
Reply to State’s motion in opposition to his originally submitted request for suppression of 
evidence.  The Defendant has come forward with evidence of  specific circumstances 
which establish a prima facie case that the evidence taken should be suppressed, and the 
State has failed to show the lawfulness of the acquisition of the evidence in question.  In 
accordance with the provisions of Arizona Rules of Criminal Procedure Rule 16.2(b), the 
State has the burden of proving, by a preponderance of the evidence, the lawfulness in all 
respects of the acquisition of all evidence which the prosecutor will use at trial.  State’s 
Response to Defendant’s Motion to Suppress fails to carry this burden and Defendant 
reasserts the legal validity of his previously submitted motion.  
	The matter is one of constitutional magnitude.  The State does not attempt to refute this.  
Rather, the issue is obfuscated through the State’s presentation of inapposite cases in support 
of its position that Defendant’s Motion to Suppress Evidence be denied.  Clearly, statements 
made to police while suffering a head injury and cognitively impaired and committed to a 
hospital bed must be suppressed.  Awakening the Defendant for further interrogation while in 
such a state is so egregiously violative as to irrevocably taint the evidence thus obtained.  It 
should additionally be noted that nowhere in police reports is it indicated that Defendant was 
read Miranda warnings before being interrogated by police, compounding and further pointing to 
the inadmissability of these statements.  The Alcohol Influence Report completed by Officer 
Bates states that Miranda warnings were “refused” (See Exhibit “A,” attached).
	Compelling a person to be a witness against himself without due process of law is a 
violation of the Fifth Amendment of the United States Constitution.  The exclusionary rule 
requires the suppression at trial of evidence gained directly or indirectly as a result of a 
government violation of the Fifth Amendment.  State v. Hackman, 243 Ariz.Adv.Rep. 3, 4 
(CA1, 5/13/97).  Ergo, the statements made by the Defendant in this case must be suppressed 
when made in circumstances such as these.  Citing State v. Bishop, 118 Ariz. 263, 576 P.2d 
122 (1978), the State argues that the voluntariness issue goes to whether a defendant’s statements 
were freely and volulntarily made and were not the product of physical or psychological coercion.  
In light of the lack of Miranda warning in this case the Bishop ruling is inapplicable, yet it was just 
this physical and psychological coercion Defendant raised in his originally submitted Motion to 
Suppress Evidence.  Similarly, State v. Rodriguez, 137 Ariz. 168, 669 P.2d 601 (App. 1983), is 
inapposite to the case at bar.  In that case the defendant was not admitted to a hospital but merely 
treated, and was certainly not slipping in and out of consciousness in a cranially concussed state while 
being badgered by police.Defendant contends that the facts depicted in police reports and appended 
to his Motions to Suppress are sufficient for the Court to conclude that the actions of the police in 
obtaining a statement from him in the case at bar were illegal, that he was exploited while in an 
impaired cognitive condition, that he was not read a Miranda warning following arrest and before 
being questioned by police, and that the evidence thus obtained is inadmissable and must be 
precluded from this cause in accordance with the exclusionary rule.  
	WHEREFORE, premises considered, Defendant moves this Court to suppress statements 
illegally obtained by police and dismiss the charge under A.R.S. § 28-1381.A.1.
	RESPECTFULLY SUBMITTED this 10th day of December, 1998.

					LAW OFFICE OF PATRICIA O’CONNOR

					_______________________________________
					By Patricia O’Connor







ORIGINAL of the foregoing
mailed/faxed/delivered this
____ day of __________, 1998,
to:

Clerk of the Court
Phoenix Municipal Court
400 North Seventh Street
Phoenix, Arizona  85006

And a COPY to:

F. Tyler Rich, Esquire
Office of the City Prosecutor
455 North Fifth Street
Phoenix, Arizona  85004

_____________________
By Patricia O’Connor