Case 2:09-cr-00919-DAK Document 21 Filed 03/26/10 Page 1 of 5

RHOME D. ZABRISKIE, #9113

STEPHEN A. ALLRED, #12013
ZABRISKIE LAW FIRM, LLC
899 North Freedom Blvd., Ste. 200
Provo, Utah 84604
Phone: (801) 375-7680

ATTORNEY FOR DEFENDANT

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA, MOTION AND MEMORANDUM TO

SUPPRESS EVIDENCE
Plaintiff,

vs.

BRETT BISHOP, 2:09CR00919

Defendant.

COMES NOW the defendant by and through counsel and pursuant to the Fourth

Amendment of the United States Constitution and respectfully motions this court to suppress any

evidence gathered as a result of law enforcement exceeding the scope of its Original Warrant, or

alternatively to suppress any evidence gathered as a result of law enforcement exceeding the

scope of its Updated Warrant.

FACTS

1. On August 6, 2009 law enforcement entered the detached garage portion of a

home rented and occupied by Brett Bishop. The purpose of the entry was to execute a warrant
 Case 2:09-cr-00919-DAK Document 21 Filed 03/26/10 Page 2 of 5

permitting a search of the detached garage structure for a silver 2005 Porsche Cayenne, VIN

#WP1AC29P35LA91261 (the Original Warrant). This Original Warrant gave law

enforcement the authority to search out and seize the Porsche.

2. Officers entered the structure from a man-door on the north face of the structure.

The man-door enters into a small office adjacent to the actual garage space within the structure.

Once thru the man-door to the structure, officers went thru an interior door a few feet away into

the actual garage space where they immediately observed a fully assembled gray Porsche

Cayenne, consistent with the description provided in the Original Warrant.

3. After officers had identified the Porsche Cayenne, and as they were waiting for a

wrecker to impound the vehicle, officers entered thru an interior door into a separate room in the

southeast corner of the structure. While in the southeast room officers observed a gun case with

glass doors thru which they could see eight rifles and six handguns in plain view from within the

southeast room.

4. After observing the guns law enforcement received an erroneous indication that

the defendant had a prior felony conviction making it illegal for the defendant to possess

firearms.

5. Based upon the plain view observations made in the separate southeast room and

the erroneous indication that the defendant had a prior felony conviction, law enforcement

obtained a new warrant to search out and seize Eight Rifles and Six Handguns (the Updated

Warrant).

6. After the Updated Warrant was obtained law enforcement immediately seized all

of the items listed in the Updated Warrant.

7. After seizing all of the items to which it was entitled by virtue of the Updated
 Case 2:09-cr-00919-DAK Document 21 Filed 03/26/10 Page 3 of 5

Warrant, law enforcement continued its search by opening drawers, cabinets, and compartments

in the actual garage space, and in the southeast and northeast rooms adjacent to the actual garage

space.

8. After discovering all items listed in both the Original and Updated Warrants, law

enforcement searched out and seized other items of evidence, including but not limited to a

muffler which had been modified and could possibly be used as a homemade silencer.

MEMORANDUM

Evidence seized by law enforcement after the discovery of the fully intact 2005 Porsche

Cayenne should be suppressed. Alternatively, evidence seized by law enforcement after the

discovery of the eight rifles and six handguns should be suppressed.

ARGUMENT 1

On August 6, 2009 law enforcement executed a search warrant on the defendants

detached garage structure for a 2005 Porsche Cayenne (the Original Warrant). Law

enforcement entered the structure thru the man-door on the north facade of the structure.

Officers proceeded immediately from there through an interior door into the actual garage portion

of the structure. Upon entering the actual garage portion officers immediately noticed the

presence of a 2005 Porsche Cayenne. Law enforcement had, at this point, exhausted the entire

scope of the Original Warrant. However, instead of terminating the search there, officers

continued to conduct a general exploratory search.

While waiting for a wrecker to come and remove the Porsche one of the officers opened a

door into a separate room in the southeast corner of the same structure as the garage. He entered

the room and from that vantage point observed eight rifles and six handguns thru the glass doors

of a gun case. Thereafter, law enforcement sought an updated warrant to seize those eight rifles
 Case 2:09-cr-00919-DAK Document 21 Filed 03/26/10 Page 4 of 5

and six hand guns.

In Marron vs. United States the Court explained that the particularity requirement of the

Fourth Amendment is to prevent general exploratory searches of a persons belongings (275 US

192, 195-6). Pursuant to the Fourth Amendment law enforcement cannot continue with a general

exploratory search once the particular item, or items described by the warrant have been searched

out and found.

In the case at bar law enforcement should have stopped all searching once it discovered

the Porsche. Any items of evidence discovered as a result of the general exploratory search that

ensued thereafter should be suppressed.

ARGUMENT 2

After executing an Original Warrant for a 2005 Porsche Cayenne On August 6, 2009 law

enforcement secured a new warrant to search the defendants detached garage structure for eight

riffles and six hand guns (the Updated Warrant). Since officers observed these items thru the

glass doors and could name the exact number of firearms in the defendants gun case before

requesting the Updated Warrant, it is by necessity that the items were already searched out and

found at the moment the Updated Warrant was secured. However, instead of terminating the

search with the seizure of the particularly described guns, officers continued with a general

exploratory search.

In its continued general exploratory search law enforcement opened drawers, cabinets,

and compartments in the actual garage space, and in the southeast and northeast rooms adjacent

to the actual garage space. As a result law enforcement searched out and seized other items of

evidence, including but not limited to a muffler which had been modified and could possibly be

used as a homemade silencer.

 Case 2:09-cr-00919-DAK Document 21 Filed 03/26/10 Page 5 of 5

In Marron vs. United States the Court explained that the particularity requirement of the

Fourth Amendment is to prevent general exploratory searches of a persons belongings (Id).

Pursuant to the Fourth Amendment law enforcement cannot continue with a general exploratory

search once the particular item, or items described by the warrant have been searched out and

found.

In the case at bar law enforcement should have stopped all searching once it secured the

previously identified eight rifles and six hand guns described in the search warrant. Any items of

evidence discovered as a result of the general exploratory search that ensued thereafter should be

suppressed.

CONCLUSION

Based upon the foregoing facts and argument the Court should suppress all evidence

discovered as a result of the general exploratory search carried out by law enforcement after the

Porsche was searched out and found by law enforcement. Alternatively, the Court should

suppress all evidence discovered as a result of the general exploratory search carried out by law

enforcement after the eight riffles and six handguns were searched out and found by law

enforcement.

DATED this 26th day of March, 2010.

/s/Rhome D Zabriskie
RHOME D. ZABRISKIE