7. MOTION TO SUPPRESS
This was discussed above in the section on preliminary hearings. The rules are the same as this level, the degree of importance is greater. Burn it in your mind, warrantless searches are, per se, unreasonable. Say it over and over every morning. From the perspective of suppression, remember that the events are in a chain, each link dependent on the one before it for its strength. If it breaks, it fails. To analyze the viability for admissibility of evidence start with the stop, then to the detention, the arrest, and then the search. I cannot begin to tell you all of the law concerned with the fourth and fifth amendments.
There are some perspectives that have been forgotten and need be reargued.
1. Not every stop justifies a search or pat down, regardless of the safety of the officer. Many judges and officers feel that if there is an articulable reason to approach a citizen, the fear of the officer justifies a pat down. That is not the law. A pat down can only occur if the officer has articulate reasons to believe that the subject is armed. See Wilda Lett v. Commonwealth. An officer sees something suspicious and approaches the citizen to ask for ID. For his own protection, he pats down the citizen and recovers something. Bad search.
2. Officer responds to "peeping Tom" complaint, finds defendant who matches description and takes him back to be identified by now clothed citizen. Defendant then admits he was the one. Bad arrest. Misdemeanor warrantless arrest can only be made by officer who witnessed the offense. There are three exceptions--traffic, shoplifting and domestic violence.
3. Officers, armed with valid search warrant, approach the home of defendant. They go to the door, knock and then kick it in or use the sledgehammer. Bad search. An officer executing a search warrant in the United States must knock first, then announce himself as a police officer, then indicate the reason for his presence and then give the occupants a reasonable period of time to get to the door. Unless each of the four conditions are complied with, there is a bad search.
4. Officer, seeing a stranger on his beat, pulls up jumps from his car, shines his flashlight on the defendant and asks for ID. He sees something in the defendant's hand which is dropped behind the defendant. Later it is found to be cocaine. Bad stop, evidence suppressible. As an aside, the evidence is not abandoned either. If the "abandonment" was caused by the unlawful actions of the officer in connection with his illegal stop, it is not voluntary. It is not abandonment. See Moss v. Commonwealth, Va. App. Record No. 0129-87-3.
5. "The defendant told me to 'kiss his ass'. I placed him under arrest for curse and abuse and while conducting a custodial search I found the gun/drugs/ or whatever." Bad arrest. Curse and abuse must be words which by their use are calculated to cause acts of violence by the individual to whom addressed. No probable cause for the misdemeanor arrest, fruit of the poisonous tree prevents admission of seized evidence. (It would be interesting if the officer, upon being told to "kiss ass", charged for solicitation.)
6. "While executing a search warrant for the stolen truck I recovered from the medicine cabinet a vial containing a white powdery substance." Bad search. Warrant is limited to areas and places wherein could be found the contraband or evidence sought. This was an actual case.
7. "While executing a search warrant for drugs and paraphernalia I found several guns. I only moved them enough to get the serial numbers which were later found to be stolen". Bad seizure. Plain view exception only allows seizure of items if there is probable cause to believe they are evidence or contraband. You cannot seize them for one moment to see if they are stolen. These are just a few examples to show you how the tool of suppression fits into trial preparation. Prosecutors should always remember "standing". Without standing there is no valid motion to suppress. Remember that with a bad search, only the defendant with an expectation of privacy can suppress the evidence.