Below is an example of a Case Brief and Motion to Suppress that I drafted. These drafts were done as an assignment in a paralegal class or for work purposes. Both of the following are documents I have drafted to be submitted based off the particular circumstances of the case at hand.
EXAMPLE 1: CASE BRIEF
Name of Case and Citation: Kringle
v. Elliott, 301 Ga. App. 1, 686 S.E.2d 665 (2009).
Procedural History:
The mother, Norma
Kringle, filed a lawsuit on behalf of her son, Steven Lloyd, against their
neighbor, Cindy Elliott, for the injuries the child received when he was bitten
by Elliott’s golden retriever. Elliott also filed a motion in limine that
excluded evidence about past behavior of the dog. Elliott filed a motion for
directed verdict saying that under the “first bite” rule there was no cause of
action and the trial court granted this motion. Kringle, the mother, appealed
this decision to the Georgia Court of Appeals.
Statement of Facts:
Steven Lloyd the
son of Norma Kringle went into the backyard of their neighbor Cindy Elliott.
Elliott’s backyard was often frequented by children from the neighborhood.
Elliott was the owner of a golden retriever named Skip. The dog was kept on a
chain in Elliott’s fenced in backyard. Lloyd went into Elliott’s backyard to
play with other children from the neighborhood. Lloyd was jumping on the
trampoline for a while before he decided that he wanted to go over and pet the
dog. At the time a little girl was in Elliott’s backyard playing with the dog.
Lloyd said that he thought the dog “looked nice” and that is why he wanted to
go over and pet it. When Lloyd approached the dog and reached out to pet it the
dog jumped on him and bite him.
During
the trial Elliott testified that there had been a previous time when she had
seen her dog running around with something in its mouth. Although Elliott
thought the dog had a toy in its mouth it was actually a dead kitten. Elliott
was unsure whether the dog had killed the kitten since it did not have any
puncture marks on its body. Elliott did not know if the kitten was dead before
the dog found it or if the dog was just retrieving like his breed tends to do.
Elliott also testified that she had a previous discussion with her neighbor who
was moving. The neighbor told Elliott of when she had seen Elliott’s dog
playing in her backyard with her sickly puppy. After the dogs had been playing
the sick puppy ended up dying. The neighbor said they had expected the puppy to
die because of its sickness but that she wondered if Elliott’s dog may have
killed the puppy. The neighbor was not sure though because there were no bite
marks on the puppy and she had seen the dogs playing in the backyard. The
neighbor’s son ended up taking the dog back into Elliott’s backyard. Lloyd also
testified saying that he had never seen the dog be mean to anyone prior to when
he was bitten.
Issues:
1) Whether the past behavior of the
dog having been in situations where a puppy and kitten both ended up dying
proved that the dog had the potential to act in an aggressive manner.
2) Whether the dog owner, Elliott,
had knowledge that her dog, Skip, had the propensity to bite someone prior to
Steven Lloyd being bitten.
Answers/Holdings:
1) No. There was nothing to prove
without a doubt that the dog had harmed or injured either the puppy or kitten
because there were no bite marks on either of the animals and no one had seen
the dog attack either animal, the information only created an assumption that
the dog could have possibly caused the harm to the animals.
2) No. Elliott could not have been
aware that her dog might potentially bite someone because it was never known
whether the dog killed the puppy or kitten therefore she had no reason to
believe that her dog may cause harm, under the “first bite” rule Elliott cannot
be considered liable for the damages that were caused to Steven Lloyd because
of a lack of knowledge.
Reasoning:
Under the “first
bite” rule the owner must have knowledge that the dog has the propensity to
bite someone. Kringle v. Elliott, 301
Ga. App. 1, 686 S.E.2d 665 (2009). This rule does not require the dog to
actually bite a person first. It may be enough to prove that an incident
occurred which would cause a sensible person to expect their dog to act in a
way that could injure someone. A dog attacking another animal may be enough to
prove the type of temperament of the dog creating awareness of the dog’s
potential to bite. While a previous attack would not necessarily be required,
at least some sort of menacing behavior would be. Kringle v. Elliott, 301 Ga. App. 1, 686 S.E.2d 665 (2009). In order
for evidence to be considered relevant it has to prove or disprove a material
fact that’s at issue in the case. The evidence in this case only created a
presumption that the dog had previously caused harm to the puppy or kitten.
There is no evidence, however, establishing that the harm was caused by vicious
attack rather than the overzealous play of a large dog. Kringle v. Elliott, 301 Ga. App. 1, 686 S.E.2d 665 (2009). Since
there was no proof of an actual attack occurring the trial court did not err in
granting a motion in limine excluding the evidence about the other animals.
Decision/Disposition:
The Court of
Appeals affirmed the decision of the trial court to grant Elliott’s motion for
directed verdict.
EXAMPLE #2: MOTION TO SUPPRESS
IN
THE SUPERIOR COURT OF _______ COUNTY
STATE OF GEORGIA
STATE OF GEORGIA
THE STATE OF
GEORGIA, *
Plaintiff, * CRIMINAL ACTION FILE NO.:
*
v. *
*
______________, *
Defendant. *
MOTION
TO SUPPRESS
COMES NOW, the Defendant, ______, and files this her Motion to Suppress pursuant to the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States; Article 1, Section 1, Paragraph I (due process), Paragraph XIII (search and seizure), Paragraph XVI (self-incrimination) of the Constitution of the State of Georgia; O.C.G.A. § 17-5-30; O.C.G.A. § 17-4-20; O.C.G.A. § 17-4-23 and other statutory and case law and in further support thereof shows this Honorable Court the following:
1.
On
or about August 25, 2014, the Defendant was driving a car on Main Street in
Athens-Clarke County, Georgia.
2.
Without
a warrant, and without probable cause or individualized articulable suspicion
that any laws had been violated, police authorities with the Athens-Clarke
County Sheriff’s Office stopped, waylaid and detained the Defendant.
3.
Said
agents for the State of Georgia also conducted a search of the Defendant herein
without probable cause. After illegally stopping, waylaying and detaining the
Defendant herein, authorities illegally searched the Defendant’s vehicle, and
questioned the Defendant.
4.
The
above-stated stop, even if deemed valid, was followed by search and seizure
beyond any explicit or implicit authorization attendant to the stop.
5.
Said
stop, search and seizure were illegal and any evidence ostensibly seized as a
result of the illegal stop followed by the illegal search and seizure would be
fruits of Federal and State Constitutional violations. This includes any
observations, statements, or blood samples obtained subsequent to the unlawful
stop, search, or seizure.
6.
Said
conduct was illegal and violative of the protection provided by the Fourth
Amendment to the Constitution of the United States as well as not within any of
the exceptions enumerated in O.C.G.A. § 17-5-1, nor any exception for so-called
“constitutionally permissible suspicionless searches.”
7.
Any
purported waiver of Fourth Amendment of purported rights under the Constitution
of the State of Georgia was insufficient as any search waiver was not freely,
voluntarily, and knowingly given. Further, any purported “consent” or waiver
was the product of an illegal detention and mere acquiescence in the face of
police authority and therefore invalid.
8.
Said
search, seizure and arrest were violative of the Fourth, Fifth and Fourteenth
Amendments to the Constitution of the United States; Article 1, Section 1,
Paragraph I (due process), Paragraph XIII (search and seizure), Paragraph XVI
(self-incrimination) of the Constitution of the State of Georgia; O.C.G.A. §
17-4-20, O.C.G.A. § 17-4-20, O.C.G.A. § 17-5-30 and other statutory and case
authority.
9.
Defendant
respectfully reserves the right to amend this Motion to Suppress should more
information become available and/or as the law and facts of the case require
WHEREFORE, Defendant prays that this
Honorable Court set this matter down for a hearing and upon consideration of
same grant the Motion to Suppress and exclude from evidence any and all
evidence purportedly seized in conjunction with the illegal and violative
search and seizure, including, but not limited to the following:
(a)
any evidence seized as a result of illegal arrest, detention, search and
seizure;
(b) any derivative evidence obtained as a result of
the illegal arrest, search and seizure; and
(c) any statements purportedly made by Defendant
herein in which Defendant was not Mirandized and/or other statements which were
derivative of other illegal police conduct herein.
Respectfully
submitted this _____ day of _______________, 20__.
_______________________
Attorney’s Name
Attorney for Defendant
Attorney’s Name
Attorney for Defendant
Georgia Bar No.:
No comments:
Post a Comment