08 17 MOTION TO SUPPRESS EVIDENCE, SEARCH WITHOUT A WARRANT (EXAMPLE: Vehicle Search)

• Jurisdiction: Arkansas
• Library: Arkansas Form Book - Complete (2023 Ed.)

08-17 MOTION TO SUPPRESS EVIDENCE, SEARCH WITHOUT A WARRANT (EXAMPLE: Vehicle Search)

[CAPTION]

MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A SEARCH WARRANT

Defendants move to suppress the search of their car under the Fourth Amendment and Ark. Const., art. 2, § 15, Ark. R. Crim. P. 3.1, and Ark. Code Ann. § 16-81-203, or all.

1. The Burden of Proof is On the State

1.1. This is a warrantless search, and warrantless searches of effects are presumptively unreasonable and invalid. See, e.g., Ex parte Jackson, 96 U.S. 727, 733 (1878); McDonald v. United States, 335 U.S. 451, 456 (1948); United States v. Van Leeuwen, 397 U.S. 249, 251 (1970); United States v. Chadwick, 433 U.S. 1, 10 (1977); United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Jacobson, 466 U.S. 109, 114 n.7 (1984).

1.2. Arkansas, of course, is in accord: see, e.g., Willet v. State, 18 Ark. App. 125, 129, 712 S.W.2d 925, 927 (1986); Mounts v. State, 48 Ark. App. 1, 7, 888 S.W.2d 321, 325 (1994); Blair v. State, 2014 Ark. App. 623 at 5, 447 S.W.3d 608, 612 (2014).

1.3. Defendants have the burden of going forward. This motion to suppress satisfies that.

1.4. The burden of showing reasonableness of the search now shifts to the State. Warrantless searches are per se unreasonable.

1.5. Thus, the State carries the burden of proof that the constitutional, statutory, and rule requirements were all met. See, e.g., State v. Kelley, 362 Ark. 636, 646-47, 210 S.W.3d 93, 99 (2005):

The cardinal principle in search-and-seizure law is that searches conducted without a warrant are per se unreasonable under the Fourth Amendment to the United States Constitution. McDonald v. State, 354 Ark. 216, 223, 119 S.W.3d 41, 45 (2003) (citing Flippo v. West Virginia, 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999)); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There are a few exceptions to this rule, but when the government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing an exception from the warrant requirement and that its conduct fell within the bounds of the exception. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

1.6. The state and federal constitutions use "effects," and a vehicle and its contents are an "effect." United States v. Jones, 565 U.S. 400, 404 (2012) ("It is beyond dispute that a vehicle is an 'effect' as that term is used in the Amendment. United States v. Chadwick, 433 U.S. 1, 12 (1977)."); Cady v. Dombrowski, 413 U.S. 433, 439 (1973); Chambers v. Maroney, 399 U.S. 42, 52 (1970).

2. Standing

2.1. Defendants were in a [rental] car on an interstate journey together. Thus, they both have standing. Enriquez v. State, 97 Ark. App. 62, 65-66, 244 S.W.3d 696, 698-99 (2006); United States v. Best, 135 F.3d 1223 (8th Cir. 1998). See State v. Bowers, 334 Ark. 447, 450, 976 S.W.2d 379, 481 (1998), on a passenger having standing to challenge a search of a car.

3. Even if the Stop was Valid, its Continuation was Not

3.1. Defendant concedes the stop was valid for [speeding] [the tags being expired, despite the fact that there were nationwide gubernatorial orders during Covid permitting vehicle licenses to be renewed after the expiration date without penalty or logically even being stopped].

[3.2]. [Here, we have a rental car with New York license plates in ___ County on I-___, and the officer decides to make a stop.]

[3.3]. [He mentions the [expired tag] [speeding] and then does nothing about it.] The officer embarks on a fishing expedition wanting to know about their travel plans and defendant's old criminal history, which is really none of his business (but it's part of the fishing expedition), and she actually tells him. It's apparent then, that the continuation of the stop was really just pretext for criminal investigation. See Pickle v. State, 2015 Ark. 286, at 6-7, 466 S.W.3d 410, 413-14 (2015).

[3.4]. The continuation of the stop when its mission was completed, however, was without reasonable suspicion or probable cause and it long exceeded the time and purposes of the stop permitted under Rodriguez v. United States, 575 U.S. 348, 354-55 (2015):

Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"—to address the traffic violation that warranted the stop, Caballes, 543 U.S., at 407, and attend to related safety concerns, infra, at 6-7. See also United States v. Sharpe, 470 U.S. 675, 685 (1985); Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) ("The scope of the detention must be carefully tailored to its underlying justification."). Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate th[at] purpose." Ibid. See also Caballes, 543 U.S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U.S., at 686 (in determining the reasonable duration of a stop, "it [is] appropriate to examine whether the police diligently pursued [the] investigation").

Here, the purpose of the stop ended almost immediately, well before the alleged consent was sought.

[3.5]. Ark. R. Crim. P. 3.1 also provides:

A law

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