Ridgeway Unified Courts

JUDICIAL COUNCIL OF RIDGEWAY

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THE STATE OF RIDGEWAY RIDGEWAY SUPERIOR COURT The State of Ridgeway, Plaintiff, v. Dehrtram; Azlaelwell_Official Respondent. Case No. RSC-CV-3 MOTION TO STRIKE GOVERNMENT’S AFFIDAVIT OF PROBABLE CAUSE Presiding Judge: Hon. Judge Bommes Defendant PatsyLavelle formerly known as “Dehrtram”, by and through undersigned counsel, hereby moves to strike the government’s affidavit of probable cause, and therefore, the charges brought against him and Defendant Azlaewent_Official. Attached hereto is a memorandum of points and authorities corroborating dismissal of the affidavit of probable cause and charges. THE STATE OF RIDGEWAY RIDGEWAY SUPERIOR COURT THE STATE OF RIDGEWAY, Plaintiff, v. Dehrtram; Azlaelwent_Official Case No. RSC-CV- MOTION TO STRIKE GOVERNMENT’S AFFIDAVIT OF PROBABLE CAUSE Presiding Judge: Hon. Bommes INTRODUCTION The Government’s Affidavit of Probable Cause is legally insufficient, and the charges, being based off of this affidavit, must also be dismissed. Defendant PatslyLavelle formerly known as “Dehrtram” brings the following arguments to substantiate the claim of legal insufficiency; ARGUMENT A. THE AFFIDAVIT OF PROBABLE CAUSE MUST BE STRUCK. For an affidavit of probable cause (“APC”) to be “complete” it must satisfy three elements; “a) a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and (c ) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer” Dodson v Dean 567 S.E.2d 348 (Ga.Ct.App.2002). In the affidavit of probable cause submitted by the State’s prosecutor, titled “Probable Cause Statement” (CID-0242), it is evident that the affidavit does not satisfy the third prong of this three-pronged test. Specifically, the document lacks the necessary attestation by an authorized officer–the prosecutor –which is crucial to verify that1 the affiant swore to the facts in the affidavit in the presence of the officer. Without certification that the affiant was in fact under oath, the affiant can not be held liable for perjury and the associated legal consequences, as the oath is necessary to establish the binding nature of the affidavit. “Accordingly, the lack of an attestation rendered the affidavit legally insufficient.” Dodson v. Dean, 256 Ga. App. 4, 7 (Ga. Ct. App. 2002). B. THE GOVERNMENT’S CRIMINAL INFORMATION MUST BE DISMISSED. The Court, allowing the Defendant to be charged based on information from a document in which the affiant could have been lying, is a complete violation of the Defendant’s rights to due process guaranteed by the Fifth Amendment to the U.S. Constitution. Furthermore, both the affidavit of probable cause and criminal information must be dismissed in conjunction, without an affidavit of probable cause, there is not sufficient probable cause for the Court to accept the criminal information; A lack of an affidavit of probable cause“"d[id] not `provide the magistrate with a substantial basis for determining the existence of probable cause,'"” U.S. v. Johnson, 22 F.3d 674, 681 (6th Cir. 1994) – and therefore– the criminal 1 The prosecutor, with their signature at the bottom of the APC certifying the affidavit “was actually sworn by the affiant before the officer”. This is typically done in most of our State’s affidavits of probable cause with the words; “Being authorized to prosecute the offenses charged, I approve this information” Not dismissing the criminal information but dismissing the affidavit of probable cause (only) would be a gross breach of the Defendant’s rights to due process. https://prnt.sc/jsyWo1oEhVIc information must be dismissed in conjunction with the affidavit of probable cause. The solution of “we’ll refile the affidavit of probable cause so that it satisfies the Dodson test for legally sufficient affidavits” simply will not work. The criminal information is dependent on the affidavit of probable cause –because the charges brought forth against the Defendant is based off of the information in the APC–, when the affidavit of probable cause is struck, the criminal information must also be struck alongside it –because– the Court can not conduct its duty of finding probable cause. If the State was to refile the affidavit of probable cause, the criminal information must also be refiled alongside it. CONCLUSION For the aforementioned reasons, Defendant Dehrtram humbly requests that this Honorable Court dismiss the Government’s affidavit of probable cause, and therefore, also dismiss the Government’s criminal information. Respectfully submitted, PUBLIC DEFENDER’S OFFICE s/___________________________ Singhski, Esq. Ridgeway Bar No.25100 Counsel of Record Deputy Chief Public Defender, Public Defender’s Office T: (505) 503-4455 E: [email protected]

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