To the prosecutor: Please take note: At the venue prescribed above or at such other venue as the court may designate, defendant will demand that all evidence stemming from the traffic stop in this case be suppressed.

Motion to Suppress Evidence; Demand to continue trial to permit me to appeal this before trial.

Defendant demands that the court here exercise the time-honored remedy for violation of constitutional rights, to wit: suppression of all evidence stemming from that stop. I demand my jury trial be continued to permit me to exercise my right to appeal an adverse ruling. I have a right to appeal such a ruling before my jury trial. Section 1538.5 specifically gives me permission to have a special hearing before trial.

(g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made before trial and heard prior to trial at a special hearing relating to the validity of the search or seizure.

I intend to appeal an adverse decision to the suppression motion, it there is one. Such an appeal may be taken before trial. That right would be jeopardized should the suppression motion be scheduled for the day of trial.

___________________ Feb 14 2003

Defendant

Tables of Authorities cited herein:

Statutes cited herein:

1538.5 sub section(g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made before trial and heard prior to trial at a special hearing relating to the validity of the search or seizure 1

16028 No ticket solely for 16028 may survive. There must be another section cited on the very same ticket. 1

Penal code section 1538.5. 1

Vehicle code section 40300.5 . 1

Argument and Memorandum of Authorities.

The officer stopped me for a pretextual reason - my trailer ball. The ball was installed in the factory located hole. The license plate numbers were sufficiently visible. The officer did not write me a ticket regarding the trailer ball. If it was not important enough to write a ticket then it was not important enough to stop me.

I contend that an officer may not demand my driver license, registration and insurance papers on a pretext. Vehicle code section __ provides some guidance. I contend that the same standard should be applied as is applied regarding the demand for insurance papers.

We have some guidance in this area from Vehicle code section 40300.5 which is reprinted here in its entirety:

40300.5. In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that is obstructing a roadway. (c) The person will not be apprehended unless immediately arrested. (d) The person may cause injury to himself or herself or damage property unless immediately arrested. (e) The person may destroy or conceal evidence of the crime unless immediately arrested.

The logic of VC 16028 should be used here. No ticket for ball means no probable cause.

The legislature gave me a safe harbor regarding the demand for insurance papers, to wit: Vehicle code section 16028. Section 16028 says in essence that if there is not offense other than the insurance offense than there can be no probable cause to do a traffic stop. It goes one step further and gives us the test that I would like to apply in my case, to wit: If the officer does not write a ticket for the offense that was the probable cause, then he had no probable cause. Section 16028 makes this an element of the crime - in order to avoid the necessity of a suppression motion. Most drivers don’t know this, obviously, and they plead guilty to a sole count of driving without insurance.

16028.

(a) Upon the demand of a peace officer pursuant to subdivision (b)

or upon the demand of a peace officer or traffic collision investigator pursuant to subdivision (c),

every person who drives a motor vehicle upon a highway shall provide evidence of financial responsibility for the vehicle that is in effect at the time the demand is made.

However, a peace officer shall not stop a vehicle for the sole purpose of determining whether the vehicle is being driven in violation of this subdivision.

(b) Whenever a notice to appear is issued for any alleged violation of this code, except a violation specified in Chapter 9 (commencing with Section 22500) of Division 11 or any local ordinance adopted pursuant thereto, the cited driver shall furnish written evidence of financial responsibility upon request of the peace officer issuing the citation. The peace officer shall request and write the driver's evidence of financial responsibility on the notice to appear, except when the peace officer is unable to write the driver's evidence of financial responsibility on the notice to appear due to an emergency that requires his or her presence elsewhere. If the cited driver fails to provide evidence of financial responsibility at the time the notice to appear is issued, the peace officer may issue the driver a notice to appear for violation of subdivision (a). The notice to appear for violation of subdivision (a) shall be written on the same citation form as the original violation.

(c) Whenever a peace officer, or a regularly employed and salaried employee of a city or county who has been trained as a traffic collision investigator, is summoned to the scene of an accident described in Section 16000, the driver of any motor vehicle that is in any manner involved in the accident shall furnish written evidence of financial responsibility upon the request of the peace officer or traffic collision investigator. If the driver fails to provide evidence of financial responsibility when requested, the peace officer may issue the driver a notice to appear for violation of this subdivision. A traffic collision investigator may cause a notice to appear to be issued for a violation of this subdivision, upon review of that citation by a peace officer. (d) (1) If, at the time a notice to appear for a violation of subdivision (a) is issued, the person is driving a motor vehicle owned or leased by the driver's employer, and the vehicle is being driven with the permission of the employer, this section shall apply to the employer rather than the driver. In that case, a notice to appear shall be issued to the employer rather than the driver, and the driver may sign the notice on behalf of the employer. (2) The driver shall notify the employer of the receipt of the notice issued pursuant to paragraph (1) not later than five days after receipt. (e) A person issued a notice to appear for a violation of subdivision (a) may personally appear before the clerk of the court, as designated in the notice to appear, and provide written evidence of financial responsibility in a form