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: 
					)		
Plaintiff,				)													)		MOTION TO SUPPRESS
  vs					)		EVIDENCE PURSUANT TO
					)		RULE 16, ARIZ.R.CRIM.PRO.
JOHN DOE,				)		
					)	
	Defendant.			)	
______________________________)		(Hearing Set: December , 19--)



	COMES NOW the Defendant, _______________, by and through undersigned counsel, 
respectfully requesting that the Court suppress State's evidence with regard to statements 
made to police while suffering from a head injury and incapacitated in a hospital bed 
afflicted with serious injury.  The facts depicted in police reports are sufficient for the 
Court to conclude that Defendant was exploited while in a weakened cognitive condition, that 
this is so egregriously violative as to require suppression of said statements, and that that 
the charge thus illegally brought forth represents an inappropriate application of law - all 
of which is more particularly set forth in the attached Memorandum of Points and Authorities, 
incorporated herein by this reference.

	This Motion is submitted in accordance with the provisions of Rule 16, Arizona Rules of 
Criminal Procedure, this 30th day of November, 1998.

							LAW OFFICE OF PATRICIA O'CONNOR


							_______________________________
					                   By Patricia O'Connor


MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

Phoenix Police Officer R. Bates (#5740) responded to the report of a vehicular accident where 
he discovered the Defendant suffering from a head injury (See Exhibit "A").  The Defendant was 
described by the arresting officer as "confused and disoriented" (See Exhibit "A," page 2).  
Following transport to a hospital where Defendant was admitted as a patient, Officer Bates 
continued to interrogate Defendant until the Defendant made an incriminating confession of 
drug and alcohol use (See Exhibit "A," page 3).

Defendant was asleep in the hospital recovery room and the arresting officer awakened him with 
accusations of further criminal activity which made the Defendant "agitated" (See Exhibit "A," 
page 3).  Defendant contends that the interrogation by Officer Bates while he was suffering 
from a serious head injury in a hospital bed constitutes an illegal abuse of police authority, 
and that the statements he made to police while in a weakened physiological and cerebral state 
should therefore be suppressed as "fruit of the poisonous tree."

STATEMENT OF LAW
	
Police reports appended hereto indicate that no odor of alcohol was detected emanating from the
Defendant at the time of arrest, yet as a result of his confession to alcohol and drug use 
Defendant was charged with violation of A.R.S.  28-1381.A.1, driving under the influence of 
alcohol/drugs.  Defendant asserts that the interrogation by the police while he was suffering 
a head injury and unable to make rational decisions constitutes an illegal action.

"We need not hold that all evidence is "fruit of the poisonous tree" simply because it would 
not have come to light but for the illegal actions of the police.  Rather, the more apt question
in such a case is whether, granting establishment of the primary illegality, the evidence to 
which instant objection is made has been come at by exploitation of that illegality or instead 
by means sufficiently distinguishable to be purged of the primary taint."  Wong Sun v. United 
States, 371 U.S. 471, 479, 83 S.Ct. 407 (1963).

It was precisely this exploitation of illegality that resulted in Defendant being charged with 
driving under the influence of alcohol/drugs.  Had he not made statements to police while in a 
disoriented state, he would not have been charged with this offense.  The Fifth Amendment of 
the United States Constitution proscribes compelling a person to be a witness against himself 
without due process of law, making this issue one of constitutional magnitude.  The arresting 
officer in this case should not have forced the Defendant to make incriminating statements 
without the presence of a lawyer and while in a disoriented mental state.  The evidence thus 
seized must therefore be excluded. The exclusionary rule applies to the states through the due
process clause of the Fourteenth Amendment.  Mapp v. Ohio, 367 U.S. 643, 654-55 (1961); State 
v. Bolt, 142 Ariz. 260, 266, 689 P.2d 519, 525 (1984).  The exclusionary rule requires the 
suppression at trial of evidence gained directly or indirectly as a result of a government 
violation of the Fourth, Fifth or Sixth Amendments.  State v. Hackman, 243 Ariz.Adv.Rep. 3, 4 
(CA1, 5/13/97); Murray v. United States, 487 U.S. 533, 537 (1988).

WHEREFORE, premises considered, Defendant moves this Court to suppress the statements illegally
obtained by the police, and dismiss the charge of violation of A.R.S.  28-1381.A.1.

RESPECTFULLY SUBMITTED this 30th day of November, 1998.

							LAW OFFICE OF PATRICIA O'CONNOR

							_______________________________
					            By Patricia O'Connor



ORIGINAL of the foregoing
mailed/faxed/delivered this
____h day of ________, 1998,
to:

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

And a COPY to:

Office of the City Prosecutor
455 North Fifth Street
Phoenix, Arizona  85004



_____________________
By Patricia O'Connor







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