Shahin Damoui, AZ Bar #000000

Tournesol Taiyang Gold & Dotter

241 WASHINGTON AVE., SUITE 1200
TEMPE, AZ 85283
TELEPHONE (714) 338-9476
Attorney for Plaintiff

IN THE UNITED STATES CIRCUIT COURT OF COOK COUNTY,

ILLIONOIS

BOB FINCH, an individual NO. CV17-2378

Plaintiff,
PLAINTIFF’S MOTION TO
vs.
QUASH EVIDENCE
STATE OF ILLINOIS,

Defendant.

Mr. Bob Finch requests to the court suppress evidence that the State of
Illinois (“Defendant”) seeks to introduce due to an illegal, warrantless search of
Mr. Finch’s hotel room. Pursuant to Illinois statutory law, “A party aggrieved by
an unlawful search may move the court for the return of property and anything so
obtained on the ground that: (1) The search and seizure without warrant was
illegal.” 725 ILCS 5/114-12 (2017). The defendants conducted an illegal,
warrantless search of Mr. Finch’s hotel room thereby violating both Illinois
statutory law and the Fourth Amendment; therefore, Mr. Finch is entitled to
suppress the evidence illegally obtained.

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 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR
SUMMARY JUDGEMENT

The police officers’ actions in knocking on Mr. Finch’s hotel room clearly

establishes an illegal search because the officers gained visual entry through the

door which was opened at their command. Courts utilize a totality of the

circumstances test in which numerous factors are weighed and balanced to

determine whether the officers’ search of Mr. Finch’s room was improper.

I. STATEMENT OF FACTS

Mr. Bob Finch, a small businessman, traveled to Chicago for business for

a few days. At 11:15 p.m. on the night in question, Mr. Finch was at his room at

the Airport Hilton in Chicago. Unfamiliar and new to the city, Mr. Finch stayed in

room and watched television. While Mr. Finch was watching television he heard

loud, incessant police sirens. Then, he noticed flashing lights coming from the

parking lot. He heard a lot of commotion coming from the hallway. He overheard

something about a burglary and weapons. At this time, Mr. Finch clearly heard

someone say “cover for me”, signifying weapons were drawn, and moments later

there was a loud pounding at his hotel door. At this point, Mr. Finch was justifiably

terrified. Reasonably, Mr. Finch did not open the door thinking it could be a

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criminal. Then he heard a police officer shout, “Don’t let him get away!” Within

seconds, Mr. Finch again heard loud pounding at his door. This time he opened the

door and saw four Chicago police officers. Mr. Finch asked if there was a problem

and immediately the officer closest to the door said, “At least one-the marijuana on

that desk.” Mr. was subsequently arrested and charged with Unlawful Possession

of Marijuana.

II. ARGUMENT

Courts utilize a totality of the circumstances test in which numerous factors

are weighed and balanced to determine whether the officers’ search of Mr. Finch’s

room was illegal. United States v. Crapser, 472 F.3d 1141, 1149 (9th Cir. 2007).

The police officers’ actions in knocking and gaining entry to Mr. Finch’s room

establishes an illegal search because the officers gained visual entry through the

door which was opened at their command. U.S. v. Winsor, 846, F.2d 1569, 1572

(9th Cir. 1988).

When consent to search is obtained as a result of a knock and talk

investigation, the validity of the encounter hinges on the voluntariness of the

consent given. Crapser, 472 F.3d at 1145. The officers’ actions were not under the

purview of the “knock and talk” technique because Mr. Finch’s interaction with

them was not consensual or voluntary. Id. The exception to the general rule

forbidding warrantless invasions of privacy is the “knock and talk” technique. Id.

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at 1147. The “knock and talk” technique involves a police officer knocking on an

individual’s door and asking the resident if they can search the premises. Id. The

validity of the encounter hinges on the voluntariness of the consent given. Id.

Therefore, for the “knock-and-talk” technique, two elements are required; the

interaction with the occupant must be voluntary and it must be consensual. Id.

A. The Police Officer’s Actions in Asserting “Don’t Let Him Get

away!” Prior to Pounding On Mr. Finch’s Establish an Illegal
Search Because the Interaction Was Not Voluntary.

There are five factors courts weigh in determining the voluntariness of a

warrantless search including: “(1) whether the defendant was in custody, (2)

whether the arresting officers had their guns drawn, (3) whether Miranda warnings

were given, (4) whether the defendant was notified that he had a right to not

consent, and (5) whether the defendant had been told a search warrant could be

obtained.” Crapser, 472 F.3d at 1149 (9th Cir. 2007).

In United States v. Winsor, defendant was found guilty of possessing forty

dollars taken in a bank robbery. Winsor, 846 F.2d at 1572. Defendant argued his

conviction rests on evidence gathered from an illegal search. Id. The defendant

lived in a hotel room and was arrested after officers looked into defendant’s room

through the door while standing in the hotel corridor. Id. at 1573. The Court held

that the officers established a search when they gained visual entry by looking into

defendant’s hotel room. Id. The Court juxtaposed its case with Davis v. United

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States, in which officers knocked on the front door of a residence but did not use

their authority as police officers to demand the occupant open the door; thus, when

the occupant opened the door, he did so voluntarily and not in response to a claim

of lawful authority. Id. Therefore, the Court held that the police did effect a

“search” when they gained visual entry into the defendant’s room through the door

that was opened at their command. Id.

Mr. Finch were not in custody and the officers did not have their guns

drawn. The officers did not give Mr. Finch his required Miranda warnings. Most

notably, he was not notified that he had a right to not consent and the officers did

not tell Mr. Finch a search warrant could be obtained. Also, court have reaffirmed

that when a police officer knocks on an occupants’ door and gains visual entry

under their badge of authority, the interaction is not consensual and thus the knock-

and-talk technique is not applicable.

Mr. Finch saw flashing lights and heard police sirens coming the hotel

parking lot. Before opening his door, Mr. Finch heard a police officer state, “Cover

for me.” After the initial pounding at his door, Mr. Finch did not consent or open

the door. He only opened the door following a second round of loud pounding at

the door and after hearing a police officer tell another, “Don’t let him get away!”

Therefore, the police officers only gained visual entry to Mr. Finch’s room through

the door that was opened at their implied command.

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 B. Mr. Finch Did Not Consent to Officers Search, the Officers Only
Gained Entry Under Their Guise of Authority.

A critical factor in determining if a “knock and talk” technique is applicable

if whether the officers used their authority, implicitly or explicitly, to compel the

occupants to open the door. Winsor, 846 F.2d at 1573. Considering the totality of

circumstances, the police officers’ statements before pounding on Mr. Finch’s door

establishes that the officers gained entry through their authority as police officers.

It is more than reasonable for an individual in Mr. Finch’s situation, hearing

officers asserting, “Cover for me” and “Don’t let him get away!”, to feel compelled

to open the door. Thus, Mr. Finch did not open the door voluntarily but rather only

in response to their loud pounding and assertions.

The fact that Mr. Finch did not open the door initially gives credence to

establishing that the police officers’ actions were not a “knock and talk” technique.

After the second set of pounding at his door and after he heard “Don’t let him get

away!”, Mr. Finch was compelled to open the door. Therefore, the officers’ actions

and assertions by loud pounding by the police officers establish that Mr. Finch’s

interaction with the officers was unconsenual and involuntary.

III. CONCLUSION

The police officers’ actions in knocking and gaining entry to Mr. Finch’s

hotel room establishes an illegal search because the officers gained visual entry

through the door which was opened at their command. . This was not a “knock and

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talk” technique because the interaction was not a voluntary or consensual

interaction under the Fourth Amendment.

DATED this 26th day of June, 2017.

By /s/ Shahin Damoui

241 WASHINGTON AVE., SUITE
120
TEMPE, AZ 85283