STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
COUNTY OF __________ _____________ COURT DIVISION
STATE OF NORTH CAROLINA
v. MOTION TO DISMISS AND SUPPRESS
__________________________,
Defendant.
NOW COMES Defendant, by and through counsel, and pursuant to N.C. Gen. Stat. § 15A-954(a)(1) moves the Court that all charges in the Indictment(s) in the captioned name and numbered case(s) be dismissed on the grounds that Local Ordinance Sec. 10-20.1, the Statute alleged in File No. ______________________ is unconstitutional on its face and as applied to Defendant in that:
“(a) No person shall play, use, or operate, or permit to be played, used or operated, any radio, tape recorder, cassette player, or other machine or device for reproducing sound, if it is located in or on any of the following: (1) any public property, including any public street, highway, building, sidewalk, park, thoroughfare, or public or private parking lot; or (2) any motor vehicle on a public street, highway, public space, or within the motor vehicular area of any public or private parking lot or park; and if at the same time the sound generated is audible at a distance of thirty (30) feet from the radio, tape recorder, cassette player, or other machine or device that is producing the sound. (b) Possession by a person or persons of any radio, tape recorder, cassette player or other machine or device for reproducing sound as enumerated in section (a) above, shall be prima facie evidence that such person operates, or those persons operate, the radio, tape recorder, cassette player or other machine or device for reproducing sound.” (Ord. of 5-8-95, § 2)
2. That said ordinance is unconstitutionally vague in the following respects:
(a) It is a penal statute that fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.
(b) It is written in a manner that encourages arbitrary and discriminatory enforcement.
3. That said ordinance is unconstitutionally overbroad in the following respects:
(a) The ordinance criminalizes a substantial amount of constitutionally protected speech. The ordinance is susceptible of regular application to protected expression.
(b) The ordinance accords police unconstitutional discretion in enforcement.
4. Defendant alleges that said unconstitutional ordinance is the basis for an unlawful search and seizure of Defendant.
5. The exclusion of evidence found as a result of said unlawful search and seizure should be suppressed pursuant to §15A-974 as a substantial violation of Defendant’s rights as well as pursuant to the Constitution of the United States and Article I section 20 or the North Carolina Constitution.
WHEREFORE, Defendant prays as follows:
1. That these demurrers be inquired into and that they be sustained.
2. That the Court enter an Order declaring Local Ordinance Sec. 10-20.1 unconstitutional as applied to Defendant herein and as applied to others.
3. That the Court enter an order suppressing all evidence as the fruits of an unlawful search and seizure.
4. That all charges be dismissed.
5. For such other and further relief as the Court deems just and proper.
This the ____ day of ______________ 20___.
______________________________
Attorney for Defendant
CERTIFICATE OF SERVICE
I, _______________ , do hereby certify that the foregoing Motion to Dismiss and Suppress was served upon the Honorable Samuel B. Currin, III, District Attorney for the Ninth Judicial District, by hand-delivering a copy of the same to his office located at the ________ County Courthouse.
This ____ day of ___________________ 20_____.
By:________________________________
Attorney for Defendant