Search and Seizure

Many cases are won or lost during the litigation of suppression motions on search and seizure issues. Did the police have a legitimate reason to stop the car or was the stop pre-textual? Was the warrant valid? Does the affidavit of probable cause stand up? Was the information received by the police reliable? If there was no warrant what was there legitimate exigent circumstances for the police to have acted without one?

If the actions of the government that led to your arrest violated your constitutional protection from unreasonable searches and seizures, some or all the evidence at the heart of the government’s case against you may be suppressed. The result of such an occurrence is often that the charges are reduced, withdrawn or dismissed altogether.

What is a motion to suppress? Your criminal defense attorneys may decide to file a “motion to suppress” on your behalf. This is a document submitted to the court requesting that it keep out — exclude — certain evidence that might incriminate you. What sorts of evidence might an attorney want to keep out of your trial?

• A statement you made to police;
• Evidence found in your car or home or in your pockets, such as illegal drugs or a weapon;
• Text messages, emails, or pictures found on your phone;
• Results of a blood or urine test showing that you had ingested alcohol or drugs.

How will an attorney try to keep out these categories of evidence? By making arguments such as:

• The police questioned you without giving you your Miranda warnings;
• The police illegally stopped your car or illegally searched it;
• The police did not have a search warrant to enter your home;
• The warrant they did have was based on false or misleading statements;
• The police coerced you into giving a blood or urine sample;
• A breathalyzer machine provided inaccurate results or was not maintained properly;
• There is a problem with the chain of custody (for instance, when investigators collect evidence and send it to a lab, they must show each person who handled the evidence to make sure that it is not contaminated or mixed up with other evidence).

Once your attorney files a motion to suppress, the court may hold a hearing so that both your attorney and the prosecutor can present evidence and arguments as to why the challenged evidence should or should not be admitted at trial. This hearing is before just the judge — not a jury — because the court needs to determine what evidence will and will not be allowed during the trial itself. If the court rules in your favor and determines that a significant piece of evidence must be suppressed – that is, excluded — at trial, the prosecutor may drop all charges, realizing that without this piece of evidence, it can’t win the case.

Even if the court rules that the evidence will not be suppressed, a hearing on a suppression motion allows the defense the opportunity to hear what police officers or other witnesses have to say about the case, thus “locking” in their testimony if they are also called during the trial. Also, if the court rules in favor of the prosecution, the issue can be brought up again on any appeal after the trial ends.

A motion to suppress is one of a number of pretrial motions that is made before trial, so that the court and the parties have a clear understanding of what evidence is admissible and inadmissible before trial. Related is a “motion in limine” which your attorney may file, also pre-trial, so that the parties and court can decide whether certain evidence should be admitted. While attorneys make objections during trial, challenging the admission of evidence, it is easier to anticipate problem evidence beforehand, giving everyone the opportunity to research the applicable law and make a more reasoned argument about the evidence in question. While motions to suppress ordinarily relate to the question of constitutional limits on evidence — did the police legally search your car or house? Did police lawfully interrogate you? — a motion in limine is more likely to involve questions such as: Is this evidence hearsay? Can the defendant’s prior criminal convictions be told to the jury?

It is important that you are represented by a capable attorney who will scrutinize all evidence that the prosecution seeks to admit in a criminal case, so as to ensure that it complies with relevant constitutional, statutory, and evidentiary rules.

Someone accused of a crime has numerous opportunities to talk about the crime . . DON’T! That is why you have a capable attorney — to be your mouthpiece. Let your lawyer do your talking!.

A criminal defendant’s case ordinarily begins with . . . being arrested. Police may show up at your home or workplace with a search or arrest warrant or they be conducting a traffic stop that escalates into a full out arrest. Be polite. But keep your mouth shut! Once in custody, simply state: I want to invoke my right to an attorney. If you are transported to the police station, be respectful and cooperative, but do not talk. If you are taken to a cell and later to jail, do not speak with your bunkmates about your crime. Ever. Once released on bail, do not post your story or opinions of the incident on social media. And it goes without saying, that once a criminal prosecution is under way, do not contact prosecution witnesses, as this could result in obstruction of justice charges being tacked onto your case.

If you are driving and are stopped by the police, do you have to answer their questions? To some degree, yes. When conducting a routine traffic stop, an officer may request a driver’s license and vehicle registration, and may run a computer check. However, beyond identifying yourself and showing that your car is registered and insured, you need not engage in further discussion with a police officer.

If you are in a public space, and an officer stops you and starts asking questions, do you have to respond? The Supreme Court has made clear that a person merely approached by or in the presence of police need not answer any question put to him or her. Rather, an individual may simply walk away. However, an officer is allowed to approach an individual on the street or in another public place and ask questions seeking voluntary, uncoerced responses; this does not violate the Fourth Amendment. On the other hand, if you are in what is determined to be a “high crime area” (and this is a very amorphous term!) an individual’s unprovoked flight from police may provide the officers with reasonable suspicion to conduct a stop that individual. If you don’t wish to speak to police, you will do yourself a service if you politely decline their questions and calmly walk—not run—away.

Once you are in police custody, if police want to question you — interrogate you — they must give you your Miranda warnings. You probably know them from watching tv, but here they are:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

If you or a friend or family member is deaf or blind or speaks another language, the police ordinarily will try to provide you your Miranda warnings in a manner you can understand. Be sure to let your attorney know if you were not given Miranda warnings or if you did not understand them!

There are other points in a criminal prosecution in which your attorney may also advise you to keep quiet. For example, if you are involved in a high-profile case, the court may issue a gag order, directing that the parties involved — the prosecution staff, the defense staff, the defendant and the victim and their families — make no statements to the press that could be construed as prejudicial pre-trial publicity. Violating a gag order can lead to additional ramifications for you — like being held in contempt of court or even serving time in jail. Let your attorney make any public comments about the case. A lawyer’s job is to represent you inside and outside of court, and he or she is best equipped to deal with the press and the public.

Are police allowed to look through your cell phone? Unless you give them consent, police need a search warrant to go through your cell phone (or your computer), a principle fairly recently decided by the U.S. Supreme Court in 2014 in a  case titled Riley v. California, and followed by a 2018 Pennsylvania case (Commonwealth v. Fulton) which also emphasized that police are required to obtain a warrant to access cell phone data. If you are arrested, police may be permitted to take your phone without a warrant. However, to view the information on your phone, they first need to obtain a search warrant or court order. Additionally, to obtain a search warrant, police much show a magistrate judge that they have probable cause that evidence of a crime is likely to be on your phone. If the search warrant application is approved by the judge, then investigators will take your phone and likely copy the files on it so that they can look through those files, searching for a link to criminal activity.

You cell phone potentially has a massive amount of information on it:

• Your political party affiliation.
• Information about drug or alcohol or gambling addictions.
• Health information or documents related to sexual problems or pregnancy.
• Banking information.
• A dating website profile.
• Your Google search history.
• The number of steps you walked this week.
• A calendar.
• Your phone contacts.
• Facebook and Twitter pages.

This data creates an incredibly broad montage of one’s life. And some of this information could be incriminating. Further, if an investigator has access to a smartphone, he or she can learn an extraordinary amount about one’s more private aspects of his or her life.

Your attorney may decide to challenge this evidence by filing a “motion to suppress” the information retrieved from your phone. For example, your attorney may determine that the search warrant was overbroad and did not specify where police could search. A motion to suppress likely will be rooted in the Fourth Amendment which prevents police from engaging in a “fishing expedition.” Ordinarily, police are required to provide particular information when asking for a search warrant. That said, searching cell phones involves a fairly new area of the law, and courts are struggling to keep up with the rapidly changing technology. Courts have not always imposed strict limits on investigators’ search of cell phones. For example, are police allowed to look through every app on a cell phone? Do they have to use certain search terms? Are messages to your attorney or other confidential or privileged information on your phone protected from perusal? Can police access information kept on the cloud via the seized cell phone? Can police image your device, by creating a complete copy of all its data? Are there date restrictions on the information the police can look through? Your attorney will be able to provide you with the most recent law as to the limits placed on police when searching your cell phone.

Recently, the Supreme Court ruled that officers also need a warrant to obtain Cell-Site Location Information. This data, produced when cell towers received location data from your cell phone and which is then transmitted to your cell service provider, can provide a detailed history about where your phone has been — and presumably where you have been. In fact, advances in technology mean that this data is comparatively accurate to GPS location information. However, while a cell phone user can turn off GPS tracking apps, Cell-Site Location Information is constantly generated to ensure that your phone remains connected to the network. Previous to this Supreme Court decision, police were not required to obtain a search warrant for this Cell-Site data, but the strengthened protections to cell phone owners now require police to satisfy the probable cause standard in order to pursue utilize that investigative avenue.

If a police officer or other law enforcement agent asks to see your phone, ask if he or she has a warrant. If there is no warrant respectfully decline to turn over your phone, and do not give consent for an officer to look through your phone. Even if there is a warrant, you may not be required to give a passcode or fingerprint access to the device. Rather, ask to first speak to your attorney.

Are police allowed to search my house? Pivotal to answering this question is whether the officers have either a search or arrest warrant. If they do have a warrant, read it. Is it signed by a magistrate? Check the dates. Check the address. Is it from the jurisdiction in  which the residence is situated? Does the warrant specify that it must be executed in a certain manner or a certain time of day?

May the police search a home when they have an arrest warrant?

The police may enter a home with an arrest warrant when they have a reasonable belief that the suspect not only lives in the dwelling but is present in the dwelling. So they must have some evidence that their suspect actually lives in the searched residence: A lease agreement?  Confirmation by a landlord or neighbor? Surveillance? The address on suspect’s most recent driver’s license? The fact that the suspect has a key to the dwelling?  Evidence that the suspect sleeps at the home regularly?

Not only do police need a reasonable belief that the suspect resides in the home to be searched, but they must also have evidence that the suspect is actually in the home at the time that they plan to enter the residence to execute their arrest warrant. What time of day is it? Is it likely that the suspect is at work, or at home? Are lights, television or other electrical devices on, suggestive that someone is at home? Is there the sound of movement inside? Is the suspect’s vehicle parked near the dwelling?

Even if the police do not have an arrest or search warrant, there are a number of legal mechanisms permitting the police to enter a home:

• If the dwelling is abandoned or looks abandoned to a reasonable person.
• If an occupant of the house offers voluntary and knowing consent allowing the police to enter and search the house.
• If there is an emergency and the police reasonably believe they need to enter (for instance, they believe someone is hurt and in need of medical assistance inside).
• If police are in hot pursuit of a suspect.
• If the police have a reasonable belief that occupants of the house will or are destroying evidence of a crime.

If police have an arrest warrant for a resident of the house, they are permitted to make a “protective sweep” of the house to protect against any others who may pose a danger to those present at the arrest scene. Additionally, once police are lawfully in your home, under the plain view doctrine, a law enforcement officer can seize any contraband in plain view. Similarly, under the “plain smell” doctrine, officers’ smelling contraband — such as burning marijuana or the peculiar odors of  a meth lab — likely will permit them to snoop around further.

What happens when the suspect is arrested in another person’s home?

Police with a valid arrest warrant for a suspect are permitted to enter the suspect’s home to arrest him or her even without  a search warrant, so long as the police have a reasonable belief that he or she will be in the residence. However, the Supreme Court ruled, in Steagald v. United States, 451 U.S. 204 (1981), that when police officers have a reasonable belief that the subject of a valid arrest warrant is present in a third party’s home, they may not enter that home without a search warrant to search for the targeted suspect, and that without a search warrant, if they find contraband, they can not use that evidence in  prosecuting the third-party home-owner. Thus, if you are the subject of the arrest warrant and you are in a friend’s home, and police enter that home to arrest you, you are probably out of luck. But if you are the friend, and the police, armed only with an arrest warrant for their suspect (not you) but no search warrant for your home, you likely have a strong legal argument that any evidence they seize cannot be used to prosecute you. Nonetheless, if the police are lawfully in a residence, anything they see in plain view — or smell — most likely can be lawfully seized and used in a prosecution.

Additionally, while armed with an arrest warrant in a home other than the suspect’s home, police are likely permitted to make  a brief “protective sweep” of the residence to protect their own safety. Finally, note that when police have a warrant to search for contraband, they are authorized to detain the occupants of the premises while a proper search is being conducted.

However, without an arrest or a search warrant, police are not allowed to wander around your property. Thus, they are allowed to come up to your front door and knock, but without a search warrant, they may not enter your garage or your backyard or your property.

Police generally are allowed to come up to the threshold of your residence, knock, and, while remaining outside, talk to you. However, police cannot enter your home simply because you have opened the door. While police are standing outside your house, in your doorway, they can peek inside the open door to look for any incriminating evidence in “plain view.” They can also ask you to exit your residence and ask you for consent to search the house. Without a search warrant, they may not enter your home unless you give them consent to do so, or unless there is some type of emergency which overrides the warrant requirement. They may also frisk you if they have a reasonable belief that you may be armed; they are permitted to do this to protect their own safety while conversing with you.  Ordinarily, this type of “knock and talk” should occur only during normal waking hours. Officers, without a warrant, are not allowed to remain in your doorway for an unreasonable length of time.

If police come to your home, or a home where you are staying, with or without a warrant, it is important to say “I’m invoking my right to remain silent and I want an attorney.” The police must then stop all questioning of you. Contact your attorney. Talking to the police is more likely to help them than you. Search and seizure law is tricky. You need a skilled, passionate attorney who will try to show that the police illegally searched your home. An illegal search likely will mean that any contraband found can not be used against you.