Form 105: Suppression Brief

• Library: Criminal Law Forms (ABA) (2013 Ed.)

Form 105: Suppression Brief

KENNETH VERCAMMEN & ASSOCIATES, PCATTORNEY AT LAW2053 Woodbridge AvenueEdison, NJ 08817(Phone) 732-572-0500(Fax) 732-572-0030

website: www.njlaws.com

Date

The Honorable __________
JUDGE'S ADDRESS

RE: State v
Indictment No.
Suppression Motion

Dear Judge:

In support of defendant's motion for suppression, please accept this letter brief in lieu of a more formal brief.

POINT 1THE WARRANTLESS SEARCH WAS IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

POINT 2NO POLICE STOP OF CAR WITHOUT PROBABLE CAUSE.

POINT 3SEARCH OF THE INSIDE OF A CAR OR POSSESSIONS IS NOT PERMITTED EVEN IF A STOP IS VALID.

POINT 4THE OFFICER'S PAT DOWN OF DEFENDANT WAS UNREASONABLE AND IN VIOLATION OF TERRY V OHIO.

POINT 5THE EVIDENCE MUST BE SUPPRESSED BECAUSE IT WAS NOT IN THE "PLAIN VIEW" OF THE POLICE OFFICERS.

POINT 6THE DEFENDANT DID NOT CONSENT TO THE ILLEGAL SEARCH

STATEMENT OF FACTS

The defendant was stopped on __________. The police did not have an arrest warrant or search warrant. There was no probable cause for the stop and search.

POINT 1THE WARRANTLESS SEARCH WAS IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights as the Federal Constitution.

When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia93 NJ 126, 133 (1983), State v. Brown, supra. State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schneklothv.Bustamonte,412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973)

Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings, Weeks v United States232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states, Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961).

State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution. As explained in Weeks, supra,

The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. Weeks v United States232 US 383,393, 34 S. Ct. 341, 58 L. Ed 652 (1914).

Independently of federally mandated rights, each state has the power to impose higher standards on searches and seizures under dictate law than is required by the federal constitution, PruneYard Shopping Center v Robins447 US 74, 81 (1980); State v Johnson68 NJ 349, 353 (1975). In fact, New Jersey has chosen to afford to the accused in the search and seizure area greater rights than those deemed mandated by the United States Constitution. State v Alston, 88 NJ 21 (1981); State v Novembrino 220 NJ Super. 229, 240-243 (App. Div. 1985), aff'd105 NJ 95 (1987)

Courts are to afford liberal, not grudging enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles' heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964).

POINT 2POLICE CANNOT STOP AND SEARCH ANY CARS WITHOUT PROBABLE CAUSE

The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches. Delawarev.Prouse,440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980). There was no indication that motor vehicle laws were violated or that any other laws were violated. Therefore, the police officers violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches.

Statev.Patino, 163 N.J.Super. 116, 125 (App. Div. 1970) aff'd 83 N.J. 1 (1980) prohibited a stop where the court found "in sum, the search was purely investigatory and the seizure a product of luck and hunch, a combination of insufficient constitutional ingredients."

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. Statev.Patino, supra. Statev.Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. Statev.Davis, 104 N.J. 490 (1986), Statev.Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. Statev.Welsh, 84 N.J. at 852. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. Statev.Patino, supra. In the case at bar, the search of the vehicle and seizure of evidence were unconstitutional. Therefore, the evidence obtained in that seizure must be...