Mission Impossible? Challenging Police Credibility in Suppression Motions

• Author: Esther Nir,Siyu Liu
• DOI: 10.1177/08874034211057612
• Published date: 01 July 2022
• Date: 01 July 2022
• Subject Matter: Articles

https://doi.org/10.1177/08874034211057612

Criminal Justice Policy Review

2022, Vol. 33(6) 584 –607

© The Author(s) 2021

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DOI: 10.1177/08874034211057612

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Article

Mission Impossible?

Challenging Police Credibility

in Suppression Motions

Siyu Liu1 and Esther Nir2

Abstract

Suppression motions are the means by which defendants challenge the constitutionality

of stops, searches, and seizures, and move the court to exclude illegally recovered

evidence. However, defendants face insurmountable obstacles in challenging

police credibility in these motions. Using 31 motions with factual disputes from

a northeastern state, we dissect the types of defense challenges related to stops,

searches, seizures, and arrests, as well as the prevalence and types of corroborating

evidence presented by the defense. We find that most defense challenges to police

credibility are not corroborated, and evidence of prior police misconduct is not

presented. Furthermore, judges typically rule in favor of the police when adjudicating

uncorroborated factual disputes between police officers and defendants. As a result,

suppression motions generally fail to serve as an accountability structure for police

conduct and rarely provide defendants with a viable remedy to address rights

violations.

Keywords

suppression motions, police credibility, Fourth Amendment rights, search and seizure,

courts

One reason officers lie, it would seem, is that they can get away with it.

—Joseph Goldstein (2018)

1Penn State Harrisburg, Middletown, PA, USA

2New Jersey City University, Jersey City, NJ, USA

Corresponding Author:

Siyu Liu, School of Public Affairs, Penn State Harrisburg, 777 W. Harrisburg Pike, Middletown, PA 17057,

USA.

Email: sul445@psu.edu

1057612CJPXXX10.1177/08874034211057612Criminal Justice Policy ReviewLiu and Nir

research-article2021

Liu and Nir 585

Introduction

In the United States, the Exclusionary Rule is the enforcement device for Fourth

Amendment protections (Mapp v. Ohio, 1961, at 367 U.S. 655). The rationale behind

the rule is to deter constitutional violations by the police and to serve as a remedy to

aggrieved individuals by excluding evidence obtained in a manner that violates the

Constitution (United States v. Calandra, 1974, at 414 U.S. 348; United States v. Leon,

1984, at 468 U.S. 916). The vehicles by which defendants move the court to invoke the

Exclusionary Rule are suppression motions. For example, in federal court, the defen-

dant may file a motion to suppress evidence upon notice of the government’s intent to

use certain evidence at trial (Rule 12 of the Federal Rules of Criminal Procedure,

2020, hereafter FRCP, section b[4], pretrial motions; Rule 41, FRCP, section h, motion

to suppress). While state and federal criminal procedure laws vary, defendants gener-

ally bear the burden to prove that the police violated their constitutional rights by a

preponderance of the evidence. In certain situations, the burden of proof can shift to

the government. For example, the prosecution bears the burden to justify warrantless

searches (Cervantes v. United States, 263 F.2d 800, 9th Cir. 1959; United States v. De

La Fuente, 548 F.2d 528, 5th Cir. 1977; United States v. Rivera, 321 F.2d 704, 2d Cir.

1963). Unlike other phases of criminal case processing where various aspects of the

charged crime are established and interrogated, the constitutionality of police behavior

is at the center of suppression motions.

There are generally two types of disputes in a motion to suppress. The first type

involves factual disputes (i.e., between defendants and police officers), which often

become the primary center of debate and necessitate findings of credibility by the

court. Typically, the defense argues that the officer’s actions—based on the defen-

dant’s factual version of events—were unconstitutional, whereas the prosecutor gener-

ally provides a different factual account that supports the constitutionality of the police

action. Often, the prosecution and defense accounts diverge on facts critical to the

motion’s outcome. Judges may rule on the filed written motion papers or after a sup-

pression hearing (during which both parties may present witnesses). Although sup-

pression motions usually involve factual disputes, in other cases the parties agree on

the facts but disagree on the legality of the officer’s conduct; this type of suppression

motion contains only legal disputes.1 The defense may argue that the officer misap-

plied the law, particularly on less clearly defined boundaries of privacy intrusion

(Heffernan & Lovely, 1991), resulting in rights violations. The disputed application of

the law may be settled by a judicial ruling on the motion.

Scholarship on the Exclusionary Rule often focuses on its effectiveness in deterring

unconstitutional police conduct (Jacobi, 2011; Morris, 1982; Oaks, 1970; Orfield,

1992; Rosenthal, 2013; Sevilla, 1974), the costs of the rule (Davies, 1983; Uchida &

Bynum, 1991), the importance of preserving public perceptions of judicial integrity in

the process (Bilz, 2012), the value of the rule when its deterrence effect is uncertain

(Kamisar, 1982), and possible alternatives to the Exclusionary Rule (Belanger, 2016;

Dripps, 2001; Hyman, 1979; Sevilla, 1974; Spiotto, 1973). However, few empirical

studies focus on the substantive issues contained in suppression motions and their abil-

ity (or lack of ability) to enforce the Exclusionary Rule.