No. I want the transcript--I want the transcript notations on Tuesday. Mr. Uelmen, good afternoon.

Good afternoon, your Honor. Your Honor, at this time, the Defense would move to reopen the motion to suppress the evidence seized without a warrant from Mr. Simpson's Rockingham residence on the morning of June 13th, 1994 and all of the fruits thereof so that this court can consider the testimony received yesterday from Detective Vannatter, from Special Agent Wachs, from Larry Fiato and Craig Fiato as relevant to the motion to suppress.

This motion, of course, is based on the same grounds of newly discovered evidence that we asserted with respect to the evidence related to the credibility of Detective Fuhrman. I believe it raises essentially the same legal issues, and we believe that the testimony that your Honor heard yesterday was not only relevant for the jury in assessing the credibility of Detective Vannatter with respect to the testimony they heard, but of even greater relevance for this court to consider in assessing the reasonableness of the entry to the premises on the morning of June 13th, 1994. Mr. Kelberg posed the question yesterday, what reason would Detective Vannatter have to lie about when O.J. Simpson became a suspect in this case. And the answer to that question goes back to the motion to suppress that was filed in this case in late June of 1994, a motion that created a need for a cover story and a need to stick with that story throughout these proceedings. The first explanation that was ever given of the discovery of the glove is found in the affidavit for a search warrant that Detective Vannatter executed in the morning hours sometime between 7:00 and 8:00 clock in the morning on June 13th, right after the glove had been discovered. And it's ironic that among all of the misrepresentations and untruths contained in that affidavit, there is one kernel of unvarnished truth, and that was the statement while securing the premises, the officers discovered a glove behind the Simpson residence, that the discovery took place in the course of activity that involved the securing of the residence which suggests that they were engaged in a search at that very moment. And the initial issue we raised in the first motion to suppress simply based on the representation contained in that affidavit was that police are not entitled to secure premises until they have probable cause to make a search. So it puts the cart before the horse for the police to say, while we were securing the premises, we found the evidence that we believe now gives us probable cause to get a search warrant to search the rest of the residence. And that's what created the need to come up with another story, another explanation, and that was the first time we heard the explanation that, "Well, we really didn't go to the premises in order to look for a suspect or look for evidence. The only reason we went to those premises was to notify Mr. Simpson of the death of his former wife and to make arrangements for the disposition of the children, that Mr. Simpson did not become a suspect until we found a glove."

Now, that's not to say that there was any legal necessity for them to deny that Mr. Simpson was a suspect. Legally, if an officer has a subjective suspicion of a suspect, that doesn't invalidate otherwise reasonably objective circumstances that create the necessity for a warrantless entry. But the real crux of the relevance of this evidence with respect to the credibility of Detective Vannatter is the inconsistency that it creates in the entire explanation of what was going on that morning, of what the officers were really up to when they went over the wall and started looking around the premises of Mr. Simpson's home. And when you put the context of what they actually did against the alternative explanations, I mean, we have two alternative scenarios here. One is, "O.J. Simpson was not a suspect. We were only there to make a notification, to make arrangements for the children; and once we discovered that speck on the door of the Bronco, to make sure there weren't other victims on the premises or people who needed assistance," versus the explanation of what's really going on here is a search. "We're looking around for whatever we can find because we want to solve this murder." And the obvious suspect right off the bat, right off the beginning of this whole process is O.J. Simpson.

If you look at how they conducted themselves once they arrived at the premises, it's much more consistent with the scenario of a search than it is the scenario of a notification; the way they entered Mr. Kaelin's room, searched the room, looked through his clothing, the way they questioned the persons who were on the premises, the amount of time that they spent on the premises before the glove was even located, actually entering the premises shortly after 5:00 A.m. And then finding the glove more than an hour later, the quickness with which they were able to ascertain where Mr. Simpson was and to actually call him and speak to him and notify him and the glove actually being found after that had occurred, the fact that they didn't even look upstairs. I mean, if their real concern was, "We're looking for other victims," the fact that they didn't even go upstairs to see if there were any victims upstairs, all of this activity--

But couldn't that also be argued that if it wasn't intended to be a generalized search for evidence, that they didn't need to go upstairs? That's what the Prosecution is going to be--

Well, the question whether they possibly did go upstairs. But the fact that they're saying, "We're doing an overview of the premises to look for victims," is hardly credible if they limit that looking for suspects to areas where they think they might find evidence. And at that point, there's no question but that the circumstances of the investigative activity they were engaged in led them to look for evidence behind the house. Nothing that they encountered initially led them to look for evidence upstairs. But if they were legitimately looking for another victim, there's no reason that they would not have gone upstairs. So in terms of consistency with their activity and behavior in the early morning hours, we would contend that all of this is truly consistent with the version that Phil Vannatter offered to the Fiato brothers and to Agent Wachs, that, "O.J. Was our suspect from the beginning." It is also consistent with the modus operandi described by Detective Mark Fuhrman in terms of the way that he goes about police investigative activities, that a good policeman simply follows his instincts, finds the evidence and then makes up the explanation or the probable cause or whatever justification may be needed later. And we believe that your Honor should consider together the newly discovered evidence with respect to Detective Fuhrman's credibility along with this newly discovered evidence with respect to Detective Vannatter's credibility. Now, I know that your Honor previously ruled that the newly discovered evidence regarding Detective Fuhrman's credibility did not require finding by the court that Detective Fuhrman was credible because it really made no difference. His activity the court found was corroborated by the testimony of Detective Vannatter. But, of course, your Honor can't simply now reverse the process and say, well, we don't have to worry about Detective Vannatter's credibility because he was corroborated by Detective Fuhrman. There's only two detectives who testified in the course of this motion to suppress, Detective Vannatter and Detective Fuhrman, and we believe that in the face of this evidence, that seriously undermines the credibility of both of these officers. The court is left with very little in terms of believable justification for the search activity that went on in the early morning hours. I don't believe your Honor can simply dismiss the evidence undermining Detective Vannatter's credibility as "BS." We're talking about two different incidents that occurred at two different times. We're talking about three different witnesses who heard statements to the effect that Mr. Simpson was a suspect from the beginning.

In view of the importance attached to that revelation by Craig Fiato, assuming that he had very important and very damaging information to the Prosecution in terms of the O.J. Simpson case, that he would be motivated out of revenge because he felt he had been poorly treated or poorly used by the D.A.'s, to make this revelation suggests that it wasn't regarded as simply "BS" in the context in which he heard it. And, of course, I think what your Honor really has to ask yourself is whether the "BS" came from the witness stand or whether the "BS" came over a beer in a hotel room. I think all of the circumstances suggests that we may have heard more "BS" from the witness stand than we did in that hotel room. And, finally, this information can't be dismissed as a joke. Now, I was trying to think of what the joke would be for the punch line O.J. Was a suspect from the beginning, and I have to conclude that the only way you can explain that as a joke is that the joke was the fourth amendment. And I think we have to ask ourselves whether we can really be surprised if police officers treat the fourth amendment as a joke if we don't take the fourth amendment seriously in our courts.

Believing that four detectives left the scene of this brutal murder unattended and all went to Mr. Simpson's residence at 5:00 o'clock in the morning simply to make a notification, that at that time, Mr. Simpson was not a suspect requires us to really suspend our credibility, our credulity, and perhaps the only person in America who would still believe that that was the only purpose of their visit would be a Judge ruling on a motion to suppress. If the police can expect when they come to court that the kind of testimony presented in this proceeding will be taken seriously, the game of police perjury will continue. And the only way we're going to put that game to a stop is to start to take the fourth amendment seriously, to demand that when police dispense with the fourth amendment requirement of a warrant and probable cause in order to engage in search activity, they have to come to a court and get justification and they can't just make up the reasons afterwards to present a plausible explanation. If we wanted to demand that kind of misconformity with the fourth amendment, then we've got to enforce the fourth amendment.

People.

As I was saying this, I have a reason for saying that, your Honor. It's the inconsistent statement of the witness who testifies. So in that sense--but still is collateral, but the main reason I say that, your Honor, and the point I want to make early on in talking to you about this motion is that the state of law now, then and for quite a few years now is that the subjective intentions of a police officer, whether it be to arrest someone, to detain someone or to enter a residence in exigent circumstances, is not controlling anymore. That was pre-proposition 8 law. And one case in particular I would like to cite to the court because it's a 1995 case, People versus Hull, H-U-L-L, at 34 Cal. App. 4--

I'm sorry--34 Cal. App. 4th, 1448. And in that particular case, which was in 1995 as I mentioned, the Defense argued in this case that the court had to determine whether the officers' entry in to arrest the Defendant was both objectively and subjectively reasonable before it could decide the search and seizure issue or whether the entry was appropriate under exigent circumstances, and the Court of Appeal directly held no, that was old law, that was pre-prop 8 law. You know, we have prop 8, Lance W., remember all those cases, which I know you've heard countless suppression motions with regard to subjective intent of an officer no longer controls and it doesn't frankly even have any relevance in the instant situation because all of the circumstances known to the officers warranted what they did. And what I'm pointing out is the most obvious thing. I won't save it until last, but in addition to the newly discovered evidence of the Fiato brothers and Agent Wachs yesterday, the court has heard from Commander Bushey, who said he ordered these officers to go over to the house. So regardless of whether Detective Vannatter may have considered Simpson a suspect in his own mind, that's not why he went there. And even if that's why he went there, it does not matter, your Honor, because the law says you look at the objective facts and what would be objectively reasonable for an officer to do and not what was in a particular officer's state of mind, and the hull court makes that plain and clear in rejecting the Defense argument to the contrary. It upheld the exigent search in that case.

1448, page?

1448. It may still be in the advance sheets rather than bound volume. But it's final. Somebody double-checked for me with the Court of Appeals. It's still published and final.

What edition is that from?

Happened to be 3rd District, your Honor. But, of course, any state Court of Appeal's opinion is binding on any Superior Court.

Indeed it is.

As you are well aware, I know.

Yes.

I'd just like to throw in that happens to be 2nd District. This does not happen to be--

Just professional courtesy.

Uh-huh. So, your Honor, here we have a few things for the court to consider. We have whether--and the basic premise, remember, is for you to determine whether this evidence would have affected the ruling of the magistrate below. And I submit that when you look at this in conjunction with the state of law, which is the officer's objective state of mind does not matter, and when you look at it all, the newly discovered evidence or the new evidence I should say, including Commander Bushey's testimony that they were ordered to go there to make notification, it's clearly something of too little import to have caused the magistrate below to grant the suppression motion, and that's basically what had to have happened. And if you recall, as I argued the other day, the bishop court indicates that mere relevance is not the standard in terms of whether it would have affected the ruling of the magistrate below. It has to be more substantial evidence, something more substantial and something akin to what the new evidence would be on a new trial motion that could warrant a court granting a new trial and what would likely lead to a court granting a new trial based on newly discovered evidence. And as I pointed out the other day, as Wicken and Epstein remind us, the--for a court to grant a new trial based on a new witness on newly discovered evidence which goes only to credibility or impeachment is virtually unheard of. It's just simply not done because it is considered collateral. And so to go back to that, in terms of talking about collateral evidence, this evidence is collateral in the sense that his subjective state of mind didn't matter. Now, it ended up--Detective Vannatter ended up testifying extensively to that, but I submit, especially if you look at the correct standard that you have to apply in determining whether entry onto Rockingham was proper, he could have been a suspect. There would have been nothing wrong with Detective Vannatter feeling that he was a suspect if he had. The point is, he didn't. But if he had, it is the ex-husband of--excuse me--the ex-wife of someone who is murdered and, you know, that person--until you rule out people and can start to narrow it down, everyone is suspect, so that anyone closely associated with this person is a suspect. So the point to all this is not that his state of mind is critical in terms of the motion to suppress, but only that the Defense has tried to get the jury to disbelieve Detective Vannatter. And it's interesting in this regard that they are only now bringing a motion, renewal of the motion to suppress. I don't know if they watched the news last night and decided maybe they'd better do it for the record or something, but it's amazing to me that was not their first line of attack as it was I believe with the Fuhrman tapes. It's only today as virtually an afterthought, after the jury has heard all this evidence and they've gotten in front of the jury, that they decide, wait a minute, maybe we ought to ask for a motion to suppress as well. So I think their lack of timeliness--well, certainly the court if it were inclined could find it was untimely, but I know this court actually wants to look at it.

Well, no. Actually, what happened is, during the course of the 1054.7 hearings where this information was first disclosed to the court by Mr. Hodgman and Mr. Yochelson, I discussed with Mr. Hodgman and Mr. Yochelson the likelihood that this renewed 1538.5 motion would be one of the obvious consequences of that disclosure if the witnesses did, in fact, after their interview testify in the manner which they did yesterday. And when the disclosure was actually made to counsel--and my recollection, Miss Lewis, is that you were not present during our chamber's conference where these matters were actually turned over to the Defense. That was one of the suggestions, that there would be a renewed 1538.5. So this is not something that comes as a surprise to me that this is here. I think we've all been on notice this is coming.

Well, it's not a surprise because--and we expected it and I even wrote a brief in anticipation of it, which I don't believe the court needs to address this additional matter which hasn't been reviewed. But the fact that we expected it, it doesn't mean we--in fact, we were surprised to the opposite. That just actually drives home my point, your Honor. I don't know if the Defense--I don't believe, because I haven't been told so, that the Defense ever raised it before today, is something that they wanted to do even though we all expected it because we just had that experience with the Fuhrman-McKinny tapes. So we all knew and certainly the Defense knew, having just brought the motion on the McKinny-Fuhrman tapes, that they had the right to do this, and that's why I'm surprised that they didn't do it sooner or didn't give notice, didn't make an issue of it sooner. So I don't think this-- let me put it this way. I believe the record supports the court denying it as untimely. However, I know you to be a conscientious Judge who likes to not have to--not to use that as a ground. So that's why I am going on to talk about these other things, but certainly it doesn't appear to be timely. Just because we expected it doesn't make it timely. I mean a lot of counsel forego doing things, just tactical matters, you know, that are expected and they end up not doing tactical matters. This could have been one of those situations, particularly where they may have felt the gamble was worth it to see if they could have your Honor hear it--have the jury hear it without risking the jury not hearing it by your limiting it only to a motion to renew and the motion to suppress. In other words, so they wouldn't have the evidence considered for two purposes. Maybe they were afraid you'd split the baby or something and not let them put it before the jury if we had a motion to suppress. So there are certainly tactical reasons supported by the record why they could have decided not to bring one, and here now that they had their cake and eaten it too in terms of the jury hearing all this stuff, they have nothing to lose at this point by now bringing up this motion at this last late hour after you've already ruled in their favor with regard to all those witnesses, both Fiato brothers and Agent Wachs, who testified yesterday. So they have nothing to lose whatsoever now. But I submit their initial lack of notification was a tactical decision on their part not to bring it earlier when they should have timely brought it. In addition, there are additional cases besides the hull case, your Honor, that's simply the most recent and is certainly the most on point in terms of being an exigent circumstances case where the officers forced entry into a home. Mr. Uelmen makes the repeated point about the officers' actions once they entered onto the premises. That also reminded me of something if I recollect correctly--and I think I do because I reviewed this recently. Detective Vannatter's testimony was, once they had been at the premises for something like 45 minutes, they had contacted Westec, they knew the Defendant--Westec had no knowledge of the Defendant being out of town. They saw a light on--I forget if it was upstairs or downstairs, but some light in the interior of the residence. I think they saw a light on the outside. I can hear Mr. Cochran real loudly. If he wouldn't mind just cutting it down a little bit. Thank you. So they saw light on in the residence. I believe it was upstairs. But anyway, it was inside the residence. They rang at the bell, they couldn't arouse anyone. Westec said they had no knowledge of him being out of town and that I believe Detective Vannatter indicated he did become concerned for the lives and welfare of the Defendant who was in there. So that flowed naturally. So they did have additional reason besides Commander Bushey ordering them to notify them for the reasons Commander Bushey articulated eloquently in court. They did have good reason to go onto the premises and try to find him. And their actions once they entered the premises were consistent with trying to find Mr. Simpson. They went up to the front door, knocked on it, got no response. They went to the first guest house, the first guest room down there and knocked on Kato's door. He didn't tell them Simpson wasn't home, he didn't know or he didn't say anything at this point in time. I guess he knew because he helped him take off. But the state of the record is, he did not say anything at that point in time to these officers.

So they went on to Arnelle's room while Detective Fuhrman appropriately stayed behind to see if there was anything suspicious about this man who looks like--Kato lives in the Defendant's guest house--considering the murders that had just transpired. Excuse me. He picked up his clothing, asked, "Are these the shoes you wore last night," totally consistent with wondering if he might have been the murderer, looking to see if there's blood or dirt on the bottom of those shoes and then, you know, in terms of Kato describing the thumps. But the other--these detectives, all the three detectives went ahead for their primary purpose, and their primary purpose was to find the Defendant. And that's when Arnelle initially said, "Isn't he home," something like that. And so she was aware. Also about that time, I think that either Arnelle said the maid was off this week or after they first--she let them inside the main house, that they looked and saw the maid's room, which was downstairs, where the bed was made and it was clear the maid wasn't working that night. So they didn't have to worry about her safety and run upstairs for her.

And then they got ahold of Cathy Randa. Cathy Randa told them the Defendant had gone to Chicago, and they got ahold of him there. So all--everything they did was consistent with a search for Mr. Simpson. And for the Defense to reiterate about four detectives going to the Rockingham for these purposes, your Honor, we just heard Commander Bushey say it's not unusual in this case. You have two murders, and one of them you may have to do something to take care of--you have a grieving family--indicated it may be appropriate for a detective or officer to stay with him until a clergy person arrives. There may be other witnesses to be interviewed. There's a lot of potential things that could happen. So to have four detectives go to the home when it's O.J. Simpson and the police being especially circumspect to do everything because they know they're subjected to higher scrutiny than perhaps they had been and have been indeed throughout this case--and I'm not saying higher than should be, but higher than normal certainly. They were subjected to heightened scrutiny and went on and on and on, has gone on and on and on.

Here again, right at the end of the evidence in the case, we're arguing the same stuff again with regard to their actions. But their actions were proper. Certainly if only two detectives had gone and had been needed for emergency help, they would have been scrutinized for not having additional detectives available to handle it. So all of the actions and conduct of these detectives when they arrived there and reasons for going over the wall, all of them were pretty much circumspect. Detective Fuhrman would have been negligent in his duties as a police officer not to investigate the noises that Kato described on the wall, and he did what was appropriate in that situation. The officers--the detectives in this case acted appropriately throughout all of those circumstances and that timing. And if Detective Vannatter was tired and getting up in years, got time to write up the affidavit, he may have made some errors. And the court already found those. But I don't think the affidavit that he made when he was tired after being called up in the middle of the night--which the detectives were called in the middle of the night. The affidavit he had to get out quickly for purposes of a search warrant that day. I don't think you ought to consider his credibility in that line. I think you ought to look at the testimony yesterday and the testimony of Detective Vannatter of the eight days he was on the witness stand. The court had a lot of opportunity to observe him and listen to him and decide for yourself, if you find it necessary to decide, whether he was credible. And all of that was after the court had to rule on the search warrant affidavit. So certainly the search warrant affidavit is something they're not re-raising that in terms of the fourth amendment issues. So I don't think that's what the court should look to in terms of deciding that indeed this newly brought motion to suppress should be denied.

Four brief points, your Honor. First, with respect to the timing of this motion, I don't think it can be seriously argued that this motion is not timely being made.

Counsel, don't waste any--

Okay.

--time on that.

Our concern was that the court not have to hear the testimony twice. It was obviously relevant for the jury to hear, and now we're asking that the same evidence be incorporated into the motion. Point two is, the testimony that we have asked the court to now consider as newly discovered evidence is the testimony of Detective Vannatter, the Fiato brothers and Special Agent Wachs. I did not mention Commander Bushey, and the reason I did not mention him is specifically because his evidence is not newly discovered. Commander Bushey was available to the People at the time the motion was heard before the magistrate. There is no basis for the People to offer Commander Bushey now as newly discovered evidence that was not previously available to the court. But in any event, we would remind the court that there was no testimony by either Detective Vannatter or Detective Fuhrman that they were responding to any order from Commander Bushey. In fact, Commander Bushey was never mentioned by either Detective Vannatter or Detective Fuhrman in the course of their testimony on the motion to suppress. So we would contend that even though he is not newly discovered, Commander Bushey is for any purpose of this motion irrelevant. The third point, the issue presented here is not the subjective belief of the officer versus the objective belief of the officer. The issue here is the credibility of the officer. The question here is whether we should believe these officers in terms of the circumstances that they have outlined as giving rise to their reasonable belief that they needed to make an immediate entry and that their purpose in making that entry was to look for victims or to make a notification as opposed to being engaged in a search either for a suspect or for evidence of a crime. And when you boil it all down, what we have here on this motion to suppress are two police officers, Detective Vannatter and Detective Fuhrman, and on the evidence now before the court, the court with the newly discovered evidence must make a new finding with respect to their credibility. This court is no longer bound by the finding with respect to the credibility of these officers that was made by the magistrate. And with the evidence that is now before your Honor, the evidence of the Fuhrman tapes in terms of Detective Fuhrman's approach to the investigation of criminal activity and his propensity to simply create a reasonable explanation after the events have taken place, the evidence of Detective Fuhrman's perjury and the testimony in this trial, the evidence with respect to Detective Vannatter's misrepresentations in the affidavit that this court found justified a conclusion of reckless disregard for the truth and now the impeachment, the direct impeachment of Detective Vannatter by three witnesses who testified that he indicated O.J. Simpson was a suspect from the beginning, this court is simply left with a record of two liars, and two liars cannot corroborate each other.

Thank you, counsel. All right. We'll take our midafternoon recess at the moment. I'll read the hull case and come back and give you my ruling.