Attacking the Seizure-over-coming Good Faith
| Publication year | 1982 |
| Pages | 2395 |
1982, September, Pg. 2395. Attacking the Seizure-Over-coming Good Faith
Gone are the days of the "liberal" Warren Court, inferior-skilled police officers, fragmented relationships between the district attorney's office and police department and a paucity of law enforcement tools. Today, we have the more "conservative" Burger court, better trained police officers, deputy district attorneys who maintain offices within the police department to peruse search warrants for technical and substantive compliance and a much wider assortment of law enforcement tools, such as the Organized Crime Strike Force, wiretapping and the most sophisticated scientific equipment available to the police forensic laboratory.
A competent criminal defense lawyer can no longer rely solely on either his knowledge of current law or police blunders to prevent crucial and necessary evidence from being introduced against a client during trial which was obtained through a warrant or warrantless search. It has become increasingly obvious that in litigating a pre-trial suppression motion, the criminal practitioner must combine book learning with the skills of arduous investigation, adroit cross-examination and creativity of presentation.
The following developments further require the emergence of a more ingenious practitioner: (1) the judicial creation of the "good faith" exception to the exclusionary rule by the Fifth Circuit Court of Appeals;(fn1) (2) the promulgation by our state legislature of the "good faith mistake" and technical violation exceptions to evidence which would be admissible in a criminal proceeding;(fn2) (3) the announcement by two justices of the United States Supreme Court that they are awaiting the right opportunity to drive a stake into the exclusionary rule;(fn3) (4) the dilution of the exclusionary rule by the requirements of standing;(fn4) and (5) a recent decision by the Colorado Supreme Court that though police officers violated a certain statute concerning their authority to arrest, the evidence obtained as a result of that illegal arrest would not be suppressed "since the arrest in the case did not offend against constitutional restraints on unreasonable seizures...."(fn5)
This article suggests a combination of approaches that the criminal defense practitioner may want to consider in litigating his or her next suppression motion when all else has failed. Whether or not one chooses to utilize all, none or some of these suggestions will obviously depend upon the facts and circumstances of the particular case.
Generally, when confronted with a case in which crucial evidence against a client has been obtained from a search and a motion to suppress is likely to be filed, counsel should not waive the preliminary hearing. Since in the suppression hearing counsel will be testing the credibility of the officer and the nature and source of the information upon which he relied in support of his search, it is important to obtain as many statements as possible from him on record before the actual suppression hearing. A motion for discovery should be filed before the preliminary hearing in order to obtain the names and statements of witnesses which may have been given prior to the preliminary hearing.(fn6)
Before the preliminary hearing, if a district attorney's file does not contain a copy of the search warrant and affidavit in support thereof, counsel should go to the district court clerk's office and obtain copies there.(fn7) Although the scope of the preliminary hearing is limited,(fn8) counsel should probe as deeply as permitted into the information given by the informant to the officer, any corroboration of it by the officer and the particulars of the seizure of each item of probative evidence. Even if prevented from cross-examining the officer as to the specifics of the information he received before beginning his search, counsel will have laid the foundation for objecting to the use of his testimony at some future hearing or trial in the event the officer is not available.(fn9)
In a discovery motion at the trial court level, counsel should ask for personnel and performance records, including Staff Inspection Bureau files, of the particular officers who were either the affiants on the search warrant involved or the officer to whom information was supplied in the conduct of a warrantless seizure.(fn10) If counsel's request is denied, he should subpoena the appropriate chief of police to bring those records to the suppression hearing.
The U.S. Supreme Court has permitted
inspections of personnel files of a government entity if the file is first reviewed by the court in camera, the Colorado Supreme Court has approved of in camera reviews of police personnel files and reports in civil cases, and the Tenth Circuit Court of Appeals has permitted in...
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