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Motions to Suppress

The strength of a criminal case rests largely on the evidence that police have managed to gather against a defendant. Such evidence can take the form of witness statements, physical evidence, statements by a defendant, and/or eyewitness identifications. When gathering evidence during the course of a criminal investigation, the police must follow strict constitutional and statutory rules. If the police fail to adhere to these rules, then any illegally obtained evidence should not be admissible against the defendant at trial. The primary means to exclude illegally obtained evidence is a motion to suppress, which is a written request by the defendant asking the court to keep certain evidence from being introduced at trial because that evidence was obtained as a result of unconstitutional or illegal police activity.

Generally, a motion to suppress is based on:

  1. Fourth Amendment and Article 14 protections against unreasonable search and seizure;
  2. Fifth Amendment, Sixth Amendment, and Article 12 protections against illegal confessions or admissions and the right to counsel; and/or
  3. Fifth Amendment, Fourteenth Amendment, and Article 12 due process safeguards.

The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights guarantee a person’s right to be free from unreasonable searches and seizures – in other words, the police must have some legal basis before they can stop and/or search a suspect. The Fourth Amendment and Article 14 generally require the police to have a warrant before conducting a search of a person, his home, vehicle, or personal property. The warrant must be based on “probable cause” to believe that the evidence being sought is in the place to be searched. If the warrant does not establish sufficient probable cause, its validity may be challenged.

Even if the police do not have a warrant, however, there are a number of situations in which the police may conduct a search or seizure without a warrant. The main exceptions to the warrant requirement are as follows:

  1. Search incident to lawful arrest: a search of a person conducted during the course of a lawful arrest does not require a warrant. If a person is lawfully arrested (meaning the police have probable cause to arrest the person), the police may search the person, and any area surrounding the person that is within the person’s reach;
  2. Plain view exception: no warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be seen. Therefore, if the police are lawfully in a location and see some sort of evidence of a crime in plain sight, they do not need a warrant to seize it;
  3. Consent exception: if consent is given by a person, no warrant is required for a search or seizure as long as the police have a reasonable belief that the person giving consent has the authority to do so. The consent must be given voluntarily, by someone of sufficient mental capacity, and the decision to consent must be free of coercion or duress;
  4. Stop and frisk: the police may stop a person as long as there is “reasonable suspicion” of criminal activity. The evidence necessary for reasonable suspicion is something beyond a mere hunch, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also conduct a pat frisk (a search of a person’s outer clothing to determine, through touch, whether the person is armed);
  5. Automobile exception: because vehicles are highly mobile, a warrant is not required to search a vehicle if the police have probable cause to believe that the vehicle contains evidence of a crime, the instrumentalities of a crime, contraband, or the fruits of a crime. Although commonly referred to as the “automobile” exception, this rule applies to any vehicle, including boats. The ability to search under this exception is somewhat limited, however – the police may only search those areas that might contain evidence of the type suspected to be present. For example, if the police suspect that a defendant has kidnapped a 7 year old child, the police could not search the defendant’s glove box or console, as a 7 year old could clearly not fit within either compartment. The rationale behind this exception is that, if an officer has to take the time to obtain a warrant, the vehicle might be out of reach before the warrant can be issued and executed;
  6. Exigent circumstance/hot pursuit – evidence that can be easily moved, destroyed, or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the person being pursued is in no way connected with the property owner.

For evidence seized as a result of a stop and/or search to be admissible against a defendant, the police must either have had a valid search warrant, or one of the six exceptions discussed above must apply.

The Fifth and Sixth Amendments of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights protect against illegally obtained confessions or admissions. Under the Fifth Amendment and Article 12, no one may be forced to testify as a witness against himself. There are five basic warnings that the police must tell a suspect before questioning him. They are known as Miranda warnings and must be provided to a suspect any time that the suspect is in custody (i.e., a reasonable person in the suspect’s position would not feel free to leave), and subject to interrogation (questioning that police officers knows, or should know, is likely to illicit an incriminating response). The suspect must specifically be warned that he has the following rights:

  1. the right to remain silent;
  2. the right to an attorney, including the right to have the attorney present during questioning;
  3. the right to a court appointed attorney if the suspect cannot afford an attorney;
  4. that anything the suspect says can be used against him in a court of law.

Before any custodial statement made in response to police interrogation may be admitted at trial, the suspect must execute a voluntary waiver of his rights. If a suspect invokes his right to counsel, this invocation must be honored by the police and all interrogation must stop until the suspect is provided with counsel. Questioning may resume only if the suspect requests to talk further with the police. If a suspect invokes his right to remain silent, the interrogation likewise must stop, however, case law suggests that an officer may later re-initiate interrogation in limited circumstances.

Under the Sixth Amendment and Article 12, after a suspect has been formally charged and has been appointed counsel, the suspect has a right to have counsel present at any subsequent interrogation by the police. The police may not initiate contact with a suspect whose Sixth Amendment/Article 12 rights have attached.

Under the Fifth Amendment, Fourteenth Amendment, and Article 12 Due Process requirements, an eyewitness identification is not admissible against a defendant if it was obtained in violation of the defendant’s due process. A pre-trial identification procedure violates due process when the procedure is unnecessarily suggestive and the suggestiveness of the procedure results in a risk of misidentification. A pre-trial identification procedure may be improperly suggestive if:

  1. The suspect stands out in a lineup or photographic array based on his size, age, race, apparel, or other uniquely identifying characteristic;
  2. An officer makes comments prior to, during, or following the identification procedure that taints the process;
  3. The suspect is shown alone to the witness in a show-up identification procedure;
  4. The police fail to follow the required identification procedures put in place to prevent the risk of misidentification.

In Massachusetts, an identification may also be suppressed on the ground of fundamental fairness, even where there has been no police misconduct. Specifically, even if the police have not engaged in any illegal behavior, if the identification is so unreliable that it would be fundamentally unfair to admit it, the identification may also be suppressed.

Further, an impermissibly suggestive pre-trial identification procedure may in turn taint a subsequent in court identification. Before admitting an in court identification (i.e., allowing a witness to identify a defendant from the stand), the prosecutor must demonstrate by clear and convincing evidence that the in court identification has an independent basis from the tainted out of court identification. In determining whether an in court identification procedure is independent, the court should consider the witness’ opportunity to view the suspect at the time of the alleged crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the suspect; the witness’ level of certainty; and the length of time between the alleged crime and the in court identification.

The Process: A defense attorney starts the motion to suppress process by filing a motion with the court asserting the legal grounds on which the evidence should be excluded. Depending on the type of motion to suppress, the court may hold an evidentiary hearing where witnesses testify and are questioned by both the prosecution and the defense. Attorneys for both sides then have an opportunity to present legal arguments about whether the evidence should be excluded. After argument, the judge will issue a decision. If the motion to suppress is allowed, the Commonwealth may not be able to go forward with the prosecution, depending on what, if any, additional evidence it has against the defendant.

Filing a motion to suppress can be one of the most effective ways to defend a criminal case. A motion to suppress should be filed when the facts and law strongly support a conclusion that the police violated a defendant’s rights, but there may also be good reason to a file a motion to suppress even when the facts and law are not as strong and it is unlikely that the evidence will be suppressed. This is a strategic move that allows a defense attorney to cross-examine police on the record and gain insight into the prosecution’s case. If and when the case goes to trial, the information obtained during the motion to suppress may be useful and help build a defense. For example, a motion to suppress hearing may provide a chance to obtain detailed information from police officers or other witnesses who would not otherwise be willing to speak to the defense, or to obtain impeachment material for use at trial. Specifically, if a police officer says two different things during the hearing and trial, then having an inconsistent statement on record will often help show that the police are not credible.

Whatever the motivation for filing a motion to suppress, such motions are critical to a well rounded defense. Attorney Daniel Cappetta is an experienced defense attorney who knows the full value of motions to suppress, and has litigated motions on numerous occasions. If you or a loved one has been charged with a crime contact Attorney Daniel Cappetta to discuss your rights and if a motion to suppress may be appropriate in your case.