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From: [email protected] (Myra Dinnerstein)
Subject: Motion to Supress
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Date: Tue, 12 Sep 1995 06:56:52 GMT
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

Date: 7 September 1995
Department 103
Hon. Lance A. Ito, Judge
Deirdre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case # BA097211

MOTION TO RECONSIDER 1538.5

The court has read, reviewed and considered the Defendant's
Motion To Suppress Evidence Based On Newly Discovered Evidence
and the attached Declaration of Gerald F. Uelmen, the Offer Of
Proof Of Newly Discovered Evidence For Motion To Suppress, the
People's Response To "Defendant's Motion To Suppress Evidence
Based On Newly Discovered Evidence," the transcript of the
preliminary hearing, the tapes and transcripts of the Fuhrman
tapes (1), and heard the argument of counsel. The request to
reconsider the matter on the basis of newly discovered evidence
was granted. The motion is denied.

PROCEDURAL HISTORY

The defendant made a motion to suppress pursuant to Penal Code
Section 1538.5 in the Municipal Court during the preliminary
hearing before the Honorable Kathleen Kennedy-Powell. That motion
was heard, considered and denied by the magistrate. The motion to
suppress was renewed in the Superior Court pursuant to Penal Code
Section 1538.5 (I). That renewed motion was denied. The defendant
now seeks to re-litigate the motion to suppress pursuant to Penal
Code Section 1538.5 (h) based upon a claim of newly discovered
evidence, i.e., the Fuhrman tapes and transcripts, evidence which
". . . could not reasonably have been presented at the
preliminary hearing . . ."

DEFENDANT'S ARGUMENT

The defendant argues that the court should consider the Fuhrman
tapes and transcripts as a whole and seven excerpts in particular
as the relate to 1) the decision to enter the Rockingham
residence, 2) the decision to interrogate Kato Kaelin, and 3) the
decision to search the south walkway area where the Rockingham
glove was found. The defendant argues that Fuhrman's credibility
has been severely damaged if not completely destroyed by the
newly discovered tapes and transcripts. The defendant points to
Fuhrman's stated willingness to testify to events not actually
witnessed, to take action and then create justification later, a
willingness to ignore the rules, a willingness to cover-up
misconduct by himself or other police officers, possession of an
instinctive ability to identify criminals and a bias against
African Americans.

PROSECUTION RESPONSE

The prosecution responds that the record in its entirety supports
the prior rulings by the magistrate and by this court, and that
the magistrate's findings would not be affected by the newly
discovered evidence. People v. Bishop (1993) 14 CA4th 203,
209-214. The prosecution notes that Fuhrman's status changed from
an investigating officer to merely assisting the investigating
officers, Vannatter and Lange from the Robbery/Homicide Division,
sometime between 2:00 and 3:00 in the morning. The activities of
the police from that point forward were at the direction of
either Lange or Vannatter. The discovery of the blood drop on the
driver's side door of the Bronco near the door handle was
confirmed by the other  officers at the Rockingham location and
documented by photography at the scene. See prosecution trial
exhibits 62-B (LAPD Photo Number 139) and 62-C (LAPD Photo Number
140). The entry onto the Rockingham grounds was justified by the
need to notify the defendant of the death of this former wife,
the need to arrange for the care of the two young children of
victim Nicole Brown Simpson and the defendant, the concern raised
by the finding of apparent blood on a vehicle parked at the south
driveway to the residence, the inability to gain a response from
any occupants by means of a doorbell/intercom system, the
inability to gain a response by calling the telephone listed with
the security alarm company, information that a maid was expected
to be present (2) and the possibility that other victims might be
present and in need of assistance. This decision was made by
Lange and Vannatter. Fuhrman testified that he was motivated to
inspect the area of the south walkway based upon the information
received from Kato Kaelin in statements to other officers and in
the course of testimony at the preliminary hearing and at trial,
with the addition that he was concerned enough to begin to
investigate the disturbance himself but was deterred by darkness
of the area and the inability to find a flashlight with
sufficient candlepower.

The testimony of Fuhrman on the three points raised by the
defendant is corroborated by the testimony of other witnesses.
The motion is therefore denied.

The clerk of the court is directed to immediately serve a copy of
this order upon counsel for the parties by facsimile and upon
their appearance in court.

IT IS SO ORDERED

(1) See the court's ruling dated 31 August 1995 entitled "Fuhrman
Tapes."
(2) This information later turned out to be erroneous. Although
it was the preference of the defendant to have his maid present
while he was away from his residence, the defendant gave the maid
special permission to be away from the residence due to her
family outing to a local amusement park.

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