STATE OF LOUISIANA CRIMINAL DISTRICT COURT VERSUS PARISH OF ORLEANS JANERO MCBRIDE CASE 0.: 526-096 See. IN RE ART 66 SUBPOENA MEMORANDUM IN SUPPORT In support of her motion to quash Ms. Bailey offers the following: Facts: On or about March 8, 2917, Ms. Bailey was given what appears to be an Art. 66 subpoena by two unknown individuals at her home. (Ex. 1). The subpoena does not appear to have been issuedEihe Clerk of Court subject to Order by the Court as required by Art. 66. Reasons: a. The subpoena does not meet the statutory requirements of Art. 66. La. Art. 66 states in pertinent part: Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him. The court may also order the issuance of a subpoena duees tecum. Service of a subpoena or subpoena duces tecum issued pursuant to this Article upon motion of the attorney general may be made by any commissioned investigator from the attorney general's of?ce, or in conformity with Article 734 of this Code. (Emphasis Added). In the instant case the subpoena does not appear on its face to be issued by the clerk of court. b. The subpoena fails to meet the ?reasonable cause? requirements established by Art. 66 subpoenas. The subpoena does not appear to have been issued in connection with the above case number as there is no entry upon the Com't?s Docketmaster System indicating the request or order. (Ex. 2). Such request would need to be accompanied facts reciting reasonable grounds to issue the subpoena. In State v. Lee the Louisiana Supreme Court held that when an Art. 66 subpoena is issued the issuing party must be held to the same probable cause standards as a warrant if the subpoena is to gather physical evidence. State v. Lee, 976 So. 2d 109, 125. The court went so far as to say with respect to physical evidence from a person, ?Regardless, even assuming a subpoena duces tecum may constitute the functional equivalent of a search warrant in some circumstances, the application at a minimum must rest upon a showing of probable cause, not simply the ?reasonable grounds? required by art. 66. Thus the application must contain within its four comers the facts establishing the existence of probable cause.? 1d. Here, the State has commanded the presence of Ms. Bailey without any reason and without ?reasonable grounds? which in this instance could be less than probable cause. The Court does not appear to have approved the issuance of the subpoena The court approval of the investigative subpoena is a procedural safeguard as has been noted: the comments to art. 66 note, the requirement that the prosecutor seek court approval after setting forth reasonable grounds before the subpoena 15 actuallyissued answers the only real objection to this subpoena power, that it could be abused by the district attorney. La. art. 66, comment State v. Williams, 617 So. 2d 557 - La: Court of Appeals, 3rd Circuit 1993 See also State v. Rae/1a], 362 So. 2d 737 - La: Supreme Court 1978. THEREFORE, given that the State does not appear to have issued a request with supporting ?reasonable grounds? Ms. Bailey prays that the Court quash the subpoena. ResPectfully submitted, J.C. LAW E, ?so 26661) anthonyibert@' lawr ce.com JAMES C. JR. (#8142) 303 South Broad Street New Orleans, LA 70119 Telephone: (504) 822-1359 Facsimile: (504) 822-3861