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 t reatment of the subject is Wa R. LF, 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 specif ic subtopics.
Rather than attempt still another doctri nal discourse here, this chapter approaches
the law of search and seizure from a d ifferent angle. After a brief description of the major
constitutional g uarantees that defense counsel may invoke to challenge the legality of
police searches and seizures and thereby the admissibility of prosec ution 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 invest igation) about the facts of any particula r case
s/he is h andling (§ 23.03 infra). 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 ana lyses should assist counsel in identi-
fying pa rticular 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 a rise in a ty pical juvenile delinquency pract ice. Issues such as sea rches 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 perpet rators) 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 ali ke, and that adult court precedents regardi ng 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
Restra ints on Sea rches and Seizures
§ 23.02(a) General Principles of Fourth Amendmen t 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 A mendment, Mapp v. Ohio, 367 U.S. 643
(1961). It regulates the act ions of the police, other law enforcement agents, other gov-
ernment officials (see § 23.34 infra) and, in lim ited circumstances, pr ivate 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, w ithout 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 S tates,
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 war rant 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 circumsta nces” (see § 23.20 infra), in
an operable motor vehicle that there is probable cause to believe contains crim inal
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
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exceptions to the warrant requirement, the courts also w ill excuse the absence of a
warrant and will test a search or seizure under the standard of “general reasonable-
ness” in situations in which t he “intrusion on the individual’s Fourth Amendment
interests” is minimal (United States v. Place, 462 U.S. 696, 703 (1983); see, e.g., Samson
(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 wh ich 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,
(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 chal lenge 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 unlawf ul 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 (see Board 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 Griff in 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 occur red particularly in the area of searches and sei-
zures. A number of state courts have developed an extensive body of state constitutional
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