Pre-trial motions such as Motion to Suppress, Motion to Dismiss, Motion to Continue (the trial), Motion for Joinder or Severance and other similar issues are brought before the Court by the defense for determination prior to trial.  Motions to Suppress are directed to specific topics such as physical evidence illegally obtained by the police through an illegal search; identifications by show-up or line-up or photo line-ups; or suppression of statements of the accused taken by the police.  This article will organize the topics and discuss them briefly so that defendants on trial can better understand the process.     


Search and Seizure of Evidence 

When the defendant has his home, car, person or other property illegally searched and evidence is seized by the police to be used in a criminal case against him, the Defense may move to suppress this evidence in a pre-trial motion.  Either the police had a search warrant or they did not. 

If there was a search warrant, the issues to be determined by the trial court are:

  ·        Was the warrant insufficient on the face of the document?
  ·        Was the property that the police seized adequately described in the warrant?
  ·        Was there probable cause for believing the grounds on which the warrant was issued in the
        first place?
  ·        Was the warrant illegally issued?   

If the trial court finds that the warrant was illegal in any of these aspects, it can suppress the evidence obtained.  That means the evidence doesn’t come in at trial and cannot be considered by the jury.  The State will have to determine if it can prove a case without the suppressed evidence. 

If there was no warrant when the search was conducted, then the legality of the search and seizure depends upon whether there was a legal basis for the search on other permissible grounds.  These include consent, exigent circumstances, and protective sweeps. 

If the police ask the owner for permission to search and he consents, they are legally permitted to search based upon consent.  This typically happens when the police stop someone for a questionable traffic violation and ask if they can search the vehicle.  If the owner consents, the police are permitted to seize any contraband evidence that they find and it will not likely be suppressed by the Court. If the police believe a crime is in progress and contraband is about to be destroyed, they have the legal right to break in and search under exigent circumstances and the evidence will not be suppressed. 

If the police look into the house while they are at the door and see contraband in plain view they are permitted to force entry and seize the evidence.  If there has been an allegation of guns in the house, the police can enter to conduct a protective sweep of the house for officer or civilian safety.  Should they see drugs in plain view, they can lawfully seize the evidence. 

One of the first questions that must be determined in a motion to suppress hearing is whether the defendant had standing to object to the search.  This is a question of legal or equitable ownership and is determined under the doctrine of standing.  Does the defendant own the home or car that was searched?  If he doesn’t, there may be no standing and the motion to suppress dies right away.  Only the lawful owner of the property searched has the standing to object to a warrantless search. 

Once it is determined that the defendant had standing, the legality of the search warrant must be decided by the Court.  If there was no warrant, the burden of production or going forward on the motion to suppress shifts to the State to prove that there were adequate grounds to support the search and seizure.  That means the State has to call the witnesses and prove sufficient alternative grounds for the search.  
 

Identifications  

Eye-witness identifications must be handled with great car, taking into consideration the witness’s emotional state and the circumstances of the incident.  How much of a stranger’s face can you see while you are looking down the barrel of a gun?  The subsequent analysis of the identification always follows the same procedure.  Whether identification comes from a show-up shortly after the crime occurs, a photo array book of possible suspects, a photo lineup prepared by the police or the age old live line-up with the victim behind one-way glass, a careful process is followed.  The Court will suppress any identification it considers to be inaccurate or tainted.  

The attorney must establish from the first officer on scene what the eyewitness gave as the complete description of the culprit.  Typically, the eyewitness says something like this, “It was a white guy, 20-30 years old, with a red shirt on.”  Such a statement gives no identifying characteristics but tells the attorney early on that the eyewitness did not know the culprit prior to the crime.  The next event in the process is that the eyewitness picks the culprit out of the line-up.  As the case goes on, the eyewitness will be shown pictures of the defendant for memory ratification.  He/She will be shown the photo just prior to trial testimony.  By the time the eyewitness testifies in court, he/she is absolutely positive, “That’s the man!” The eyewitness has been conditioned during the identification process.  This is an evolving process that starts with the limited ability to identify the culprit at the time of the crime and blossoms into an apparent certainty of the trial testimony. 

An astute attorney will break down this identification growth process into its component parts.  He will educate the jurors to be alert as to how the identification changed or evolved throughout the pre-trial process.  Jurors must be taught to understand that identifications are a living and growing process and that logically the most accurate description would be the first one as the event was still fresh in the mind of the eyewitness.  The jurors’ role is to determine whether or not the identification was accurate or inaccurate.  This is part of their required role to determine credibility and reliability of the evidence.  Jurors must be ready to analyze the identification process and consider all of the ways it could have become tainted and unacceptable.   

Once the attorney is fully prepared for these issues at trial, he can better determine if the facts of this case show that “the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”  See Simmons v. U.S., 390 U.S. 377, 384 (1968).  If the identification procedure was tainted, the Court may suppress the identification altogether.  That means this identification evidence will not be considered by the jury.  

The motion to suppress will be determined by the factors delineated in Miranda v. United States, 384 U.S. 436 (1966), which held that the police must read the accused his rights at any time where there is custodial interrogation.  This sounds very simple but the case law is never ending on Miranda.  Discussion of Miranda basically revolves around two terms, custodial and interrogation. 

Custodial means that the accused must be in custody and questions regarding this custody need to be considered.  Was he arrested?  Was he in cuffs?  Was he in the police cruiser or in an interrogation room at the police station?  Was he free to leave?  Was he asked to come down voluntarily to talk to the police or was he already in custody? 

When the police show up at a person’s house and ask him to drive down to the station and talk to them, he is not in custody but the statements he makes are considered voluntary.  In such a statement, no Miranda warnings are required.  However, if he is under arrest and in custody, Miranda warnings must be given.   

But what is interrogation?  The State will always claim that there was no interrogation, the police were kind and polite and just asked some questions.  Well, what does interrogation mean if it doesn’t mean police asking questions and expecting answers?  If the police admit that the accused was in custody and that they asked him, “What happened out there?” that is enough to cause suppression unless the police first gave Miranda warnings and received a knowing, intelligent and voluntary waiver of rights from the accused.  This requirement is of constitutional proportions and rests on the requirement of procedural Due Process.  The accused must be given notice that he has rights and that he can assert them to stop the questioning by police or he can waive those rights, if he so chooses, and voluntarily give his statement.  That statement will be recorded and used against him at trial. 

The rights are:  

  ·        you have the right to remain silent;
  ·        anything you do say can, and will, be used against you in a court of law; 
  ·        you have the right to speak to an attorney at any time before or during the questioning;
  ·        if you can’t afford an attorney, one will be appointed at no cost to represent you. 

If the defendant was taken into custody and then questioned without having first been given his Miranda warnings and had given a lawful waiver on the record, then the Court will suppress the statement and any evidence found from what was said in the statement.  That will be done by granting the Defense’s Motion to Suppress.