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Call Us NowMotion to Suppress Evidence – Top 5 ways to get it thrown out
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The top 5 legal grounds for the suppression of evidence are that
- the evidence was obtained in an unreasonable search done without a warrant,
- the police obtained evidence in violation of the suspect’s right to a lawyer,
- the suspect was not properly Mirandized,
- the police had a search warrant, but it was defective or deficient, and
- police failed to preserve the chain of custody of the evidence.
There are other ways to suppress evidence, as well. However, these are some of the most common and important.
In this article, our criminal defense lawyers will discuss each of these legal arguments in more depth.
1. Unreasonable search without a warrant
Perhaps the most common way for evidence to get suppressed is if it was obtained by law enforcement during an unreasonable search that was done without a warrant. The Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures. Many state constitutions also forbid them. If law enforcement violates a suspect’s Fourth Amendment rights, any evidence they find as a result of the violation will be kept out of court.
Police conduct a search when they invade a suspect’s reasonable expectation of privacy in order to find evidence of a crime.1
Police can conduct 2 types of searches:
- pursuant to a search warrant, or
- warrantless searches.
When done without a warrant, it is up to law enforcement to show that it was a reasonable search.2 They can do this by showing that the search fell within a recognized exception to the warrant requirement. The most common of these warrant exceptions are:
- consent searches,
- searches incident to an arrest,
- vehicle searches,
- plain view searches,
- exigent circumstances,
- searches of open fields, and
- administrative searches.
So long as the search falls into one of these categories, police do not need a warrant to do it. However, if the search does not fall into a valid warrant exception, it is an unreasonable and illegal search. It violates the suspect’s civil rights. The suspect can file a motion to suppress whatever evidence was obtained as a result of that violation. If successful, the evidence will be excluded from the trial against the defendant.
2. Violation of the right to a lawyer
Under the Sixth Amendment to the U.S. Constitution, criminal defendants have a right to an attorney.3 The right to a lawyer gets triggered when the defendant is formally charged, or when law enforcement shifts from investigation to an accusation.4
If a defendant has a right to a lawyer, and the defendant invokes it while being interrogated, police must provide access to an attorney.5 The invocation of the defendant’s right to a lawyer has to be unambiguous.6 Until an attorney is present, police cannot interrogate the defendant.7 If they do, it is a violation of the defendant’s rights. If law enforcement obtains incriminating evidence from the violation, it can be suppressed.
Defendants also have a right to a lawyer at other stages of the criminal justice system, like during a police lineup or suspect identification.8
However, it is important to note that defendants can waive their right to a lawyer.9 It is up to the prosecutor to prove that this waiver was done intentionally by the defendant.10 The defendant’s waiver is only effective if he or she knows that they are talking to a member of law enforcement.11
3. Violation of Miranda rights
All criminal suspects have a Miranda right to be informed of their civil rights that come from the Fifth and Sixth Amendments of the United States Constitution. Under case law, police are required to inform suspects of these rights before a custodial interrogation. This is known as “Mirandizing” a suspect. If a suspect has not been Mirandized and is then subjected to custodial interrogation, incriminating information obtained during that interrogation may be suppressed.
The U.S. Constitution provides:
- the privilege against self-incrimination, also known as the right to remain silent, and
- the right to a lawyer.
In Miranda v. Arizona, the Supreme Court of the United States ruled that police must inform a suspect of these rights. If they do not, it violates the Fifth Amendment and Sixth Amendment and any incriminating statements can be suppressed.12
Police inform suspects of these rights through a Miranda warning. The warning informs a suspect that:
- he or she has the right to remain silent,
- anything the suspect says can be used against them in court,
- the suspect has a right to talk to a lawyer, and
- a lawyer will be appointed for the suspect, if he or she cannot afford one.
Many TV shows include Miranda warnings when law enforcement officers arrest someone on the show.
Suspects only have to be given their Miranda warning before a custodial interrogation.
Broadly speaking, suspects are in custody if they are:
- in police custody, or
- have been significantly deprived of their freedom of action.13
An interrogation is when police:
- subject the suspect to an express line of questioning, or
- use words or actions known to be reasonably likely to get an incriminating response.14
4. Deficient or defective search warrant
Just because police have a search warrant does not mean that they cannot violate a suspect’s civil rights. If police execute a search warrant that is defective or deficient, evidence obtained may be suppressed.
The Fourth Amendment to the U.S. Constitution states that search warrants are only to be issued for probable cause. They can also only be issued by judges or magistrates who are neutral and detached.15
It is up to the police to persuade a judge or magistrate that they have probable cause to believe that criminal activity is going on. Law enforcement has to show this by affidavits and sworn testimony. A search warrant will only be issued if the judge or magistrate agrees that there is probable cause.
Defendants can challenge search warrants in 2 ways. They can argue that it is:
- defective, or
- deficient.
To show that the warrant was defective, defendants can challenge the probable cause underlying a search warrant. They can do this by filing a Franks motion.16 The court will hold a Franks hearing. At the hearing, the defendant can challenge the issuance of the search warrant by showing that it:
- contains statements that were knowingly or intentionally false, or
- includes statements that show a reckless disregard for the truth.17
In order for a search warrant to be deficient, defendants have to show that it failed to adequately instruct officers executing it. This can happen when:
- the warrant does not specify what evidence is to be seized, and instead amounts to a “general warrant,” or
- fails to give an adequate description of the place to be searched.
Defendants can also suppress evidence that was obtained under a search warrant if police:
- exceeded the scope of the warrant, or
- seized evidence that was not listed in the warrant.
5. Chain of custody problems
Occasionally, evidence can be suppressed if police are not able to prove a chain of custody.
When police seize tangible evidence of a crime, they have to keep it secure. Tangible evidence can take the form of:
- a weapon,
- drugs,
- money,
- a photograph, or
- a car.
In order to present this type of evidence at trial, law enforcement has to show that they had possession of the evidence at all times. If there is a gap in the chain of custody, it undermines the reliability of that evidence. The defendant may be able to get the evidence suppressed.
What happens if evidence gets suppressed?
Evidence that gets suppressed will be excluded from the defendant’s trial. Prosecutors will not be able to present it against the defendant.
This is known as the exclusionary rule.
In some cases, the suppressed evidence was crucial to the prosecutor’s case. Having it kept out of trial can doom the prosecutor’s case against the defendant. When this happens, law enforcement might offer a better plea deal or may drop the criminal charges, altogether.
What is the fruit of the poisonous tree?
The fruit of the poisonous tree is a legal metaphor. It refers to evidence that was gathered after a suspect’s civil rights were violated, but independently of the violation.
Under the metaphor, the unlawful search or seizure is the poisonous tree. Because the tree is poisoned by the violation of the suspect’s rights, all subsequent evidence obtained – the fruit of the tree – is also tainted. Evidence tainted by the civil rights violation can be suppressed and excluded from the criminal trial.
For example: Police officers violate Tim’s constitutional rights by unlawfully entering his house. Tim tells them that Jonny is selling drugs. The police then lawfully enter Jonny’s house and find a controlled substance. Both Tim’s statements and the drugs found in Jonny’s house are fruit of the poisonous tree because they stemmed from the unlawful entry into Tim’s house.18
When is a motion to suppress evidence filed in a criminal case?
A motion to suppress evidence, also known as a suppression motion, can be made during the pretrial stages of the criminal proceedings. They are often made at the preliminary hearing, though they can be filed as early as the arraignment. Otherwise, they can trigger a pretrial hearing.
Whether defendants are facing misdemeanor or felony charges, it is crucial for them to have the legal representation of a criminal defense attorney from a reputable law office who understands this key piece of criminal procedure.
Legal References:
- Katz v. United States, 88 S.Ct. 507 (1967).
- United States v. Jeffers, 342 U.S. 48 (1951).
- Brewer v. Williams, 430 U.S. 387 (1977).
- Moran v. Burbine, 475 U.S. 412 (1986).
- Messiah v. United States, 377 U.S. 201 (1964).
- Berghuis v. Thompkins, 560 U.S. 370 (2010).
- Maine v. Moulton, 106 S.Ct. 477 (1977).
- United States v. Wade, 87 S.Ct. 1926 (1967).
- Patterson v. Illinois, 108 S.Ct. 2389 (1988).
- Johnson v. Zerbst, 58 S.Ct. 1019 (1938).
- United States v. Henry, 100 S.Ct. 2183 (1980).
- Miranda v. Arizona, 86 S.Ct. 1602 (1966).
- Same.
- Rhode Island v. Innis, 100 S.Ct. 1682 (1980).
- Coolidge v. New Hampshire, 91 S.Ct. 2022 (1971).
- Franks v. Delaware, 438 U.S. 154 (1978). See also United States v. Veloz, 948 F.3d 418 (2020).
- Franks v. Delaware, 438 U.S. 154 (1978).
- Facts from Wong Sun v. United States, 83 S.Ct. 407 (1963).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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