Motions to Suppress Tangible Evidence

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 453-560

453

CHAPTER 23

MOTIONS TO SUPPRESS

TANGIBLE EVIDENCE

PART A. INTRODUCTION: TOOLS

AND TECHNIQUES FOR LITIGATING SEARCH

AND SEIZURE CLAIMS

§ 23.01 Overview of the Chapter

and Bibliographical Note

The Fourth Amendment to the Constitution of the United States, forbidding “unreason-

abl e sea rch es a nd se izu res ,” is t he s ubje ct o f an ext ensi ve j uri spr uden ce. I ssu es r ais ed by the

numerous Fourth Amendment doctr ines are multiple and complex; the law is often uncer-

tain and in f lux. The best general treatment of the subject is Wa R. LF, S

 S (4th ed. 2004 & Supp. 2011–12). See also J G. C, C

R   A—P R 175–461 (1972); J W H, J.,

S  S (3d ed. 2000); A M, T L  A  S

 S (1974); W E. R, S & S, A  C-

 (2d ed. 2003 & Supp.); J A. V, S, S  I (2d

ed. 1974). There are voluminous law review articles of good qual ity on specific subtopics.

Rather than attempt still another doctrinal discourse here, this chapter approaches

the law of search and seizure from a d ifferent angle. After a brief description of the major

constitutional guarantees that defense counsel may invoke to challenge the legality of

police searches and seizures and thereby the admissibility of prosecution evidence pro-

duced by those activities (§ 23.02 infra), the text sets out a checklist of quest ions that coun-

sel can ask and answer (with minimal investigation) about the facts of any particular case

s/he is h andling (§ 23.03infra). The references following each que stion will direct coun sel

to subsequent sections containing functional analyses of the law applicable to the basic

factual situation targeted by the question. These analyses should assist counsel in identi-

fying particular aspects of law enforcement activity that may be assailable in each situa-

tion, together with the theoretical grounds and supporting authorities for assailing them.

Throughout the sections on search and seizure law, an emphasis will be placed on

issues likely to arise in a ty pical juvenile delinquency practice. Issues such as searches of

students in school will receive g reater attention than, for example, electronic surveil lance

454 | Trial M anual for Defense Attorne ys in Juvenile Delinquency Ca ses

(which tends to be used primarily in police investigations of adult perpetrators) or

administrative searches (which tend to be searches of the workplace, thereby involving

primarily adults). When issues like electronic surveillance or administrative searches

do crop up in a delinquency case, counsel should consult the treatises cited in the first

paragraph of this section.

Most of the caselaw discussed in t his chapter is adult court caselaw, since most of the

developments in search-and-seizure law have taken place in adult court prosecutions.

However, the Supreme Court has made clear that the Fourth Amendment applies to

adults and juveniles alike, and that adult court precedents regarding search and seizure

are equally applicable to juvenile prosecutions. See New Jersey v. T.L.O., 469 U.S. 325,

337–38 (1985) (equating t he privacy rights of chi ldren and adults and demonstrating that

prior adult court precedents also define t he limits of police intrusiveness in searchi ng or

seizing children).

§ 23.02 Constitutional and Statutory

Restraints on Searches and Seizures

§ 23.02(a) General Principles of Fourth Amendment Law

The Fourth Amendment’s proscription of unreasonable searches and seizures governs

federal prosecutions by its express terms and state prosecutions by incorporation into

the Due Process Clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643

(1961). It regulates the actions of the police, other law enforcement agents, other gov-

ernment officials (see § 23.34 infra) and, in limited circumstances, private citizens (see

§ 23.36 infra).

Perhaps the simplest way of viewing the vast array of Fourth Amendment caselaw is

by breaking it down into six categories of cases:

(i) Caselaw defining t he powers of police officers to conduct a search of a person, place,

or thing, and to seize items discovered in t hat search, without the benefit of a search

warrant. The Supreme Court has repeatedly declared that “searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” Katz v. United States, 389 U.S . 347, 357

(1967). See, e.g., Georgia v. Randolph, 547 U.S. 103, 109 (2006); Kyllo v. United States,

533 U.S. 27, 31 (2001); Minnesota v. Dickerson, 508 U.S. 366, 372–73 (1993); Thompson

v. Louisiana, 469 U.S. 17, 19–20 (1984); United States v. Karo,468 U.S. 705, 714–15,

717 (1984). The “jealously and carefully drawn” exceptions to the warrant require-

ment (Jones v. United States, 357 U.S. 493, 499 (1958)) include searches and seizures

made with the valid consent of an authoriz ed person (see § 23.18 infra), incide nt to a

valid arrest (see § 23.08 infra), under “exigent circumstances” (see § 23.20 infra), in

an operable motor vehicle that there is probable cause to believe contains criminal

objects (see § 23. 24 infra), and after an officer’s observation of contraband or crime-

related objects in “plain view” (see § 23.22( b) infra). In addition to these specific

Motions to Suppress Tangible E vidence

| 455

exceptions to the warrant requirement, the courts also will excuse the absence of a

warrant and will test a search or seizure under the standard of “general reasonable-

ness” in situations in which the “intrusion on the individual’s Fourth Amendment

interests” is minimal (United States v. Place, 462 U.S. 696, 703 (1983); see, e.g., Samson

v. California, 547 U.S. 843 (2005); United States v. Sczubelek, 402 F.3d 175, 184–87

(3d Cir. 2005)), or the police conduct at issue is of a type that “historically has not

been, and as a practical matter could not be, subjected to the warrant procedure,”

Terry v. Ohio, 392 U. S. 1, 20 (1968); see, e.g., Illinois v. McArthur, 531 U.S. 326, 330–37

(2001); Delaware v. Prouse, 440 U.S. 648, 653–55 (1979); Michigan v. Summers, 452

U.S. 692, 699–701 (1981), or “‘in those exceptional circumstances in which special

needs, beyond the normal need for law enforcement, make the warrant . . . require-

ment impractic al,’” O’Connor v. O rtega, 480 U.S. 709, 720 (1987) (plurality opinion);

see, e.g., Board of Education of Independent School Dis trict No. 92 of Pottawatomie County

v. Ear ls, 536 U.S. 822 (2002); Griffin v. Wisconsin,483 U.S. 868 (1987); New Jerse y v.

T.L .O ., 469 U.S. 325 (1985).

(ii) Caselaw concerning warrantless seizures of the person, either in the form of an

“arrest” or in the form of t he less extensive restraint first recog nized in Ter r y v. Oh io,

392 U.S. 1 (1968), and commonly called a “Terry stop.” See §§ 23.04 –23.14 infra.

(iii) Ca selaw dealing wit h searches and seizures made pursuant to a search warrant. See

§ 23.17 infra.

(iv) Caselaw pertinent to the procedural issue of when a respondent has a sufficient

interest in the area searched or the item seized to mount a challenge to the search

or seizure. See §§ 23.15, 23.23 infra.

(v)Caselaw addressing the procedural question of whether, if a search or seizure was

unconstitutiona l, the prosecution may nevertheless use part icular items of evidence at

trial because they are not viewed as “tainted” by the unlawful search or seizure. See

§§ 23.37–23.4 0 infra.

(vi) Caselaw defining the extent of Fourth Amendment regulation of searches and sei-

zures by government officials who are not in the field of law enforcement, such as

public school teachers (seeBoard of Education of Independent School District No. 92 of

Pottawatomie County v. Earls, 536 U.S. 822 (2002); Vernonia School District 47J v.

Acton, 515 U.S. 646 (1995); New Jersey v. T.L.O., 469 U.S. 325 (1985)) and probation

officers (see Griffin v. Wisconsin, supra), and searches or seizures by private citizens

acting in collaboration with the police. See § 23.33–23.36 infra.

§ 23.02(b) State Constitutional Protections Against Searches

and Seizures

As explained in § 7.0 9 supra, some state courts in recent years have begun to construe

state constitutional provisions as providing greater protections than the parallel provi-

sions of the Constitution of the United States as interpreted by the Supreme Court

of the United States. This has occurred particularly in the area of searches and sei-

zures. A number of state courts have developed an extensive body of state constitutional