HOW DOES A LAWYER KEEP EVIDENCE THAT IS BAD FOR YOU OUT OF COURT?
Criminal prosecutions can often come down to one key piece of evidence: the results of a breath-test, a fingerprint on an object, a weapon used to commit a crime. To successfully get this evidence submitted at trial, the law requires many factors to be met. First and foremost, the evidence must be the product of legitimate police activity. Thus, evidence that is tainted from it’s discovery will generally be kept out of trial, never being placed before a jury when it determines if a defendant is guilty of the alleged crime. This is known as “suppression.” Because many cases may come down to these specific pieces of evidence, it is important to understand when suppression of evidence is required.
Rights granted by the Constitution of the United States (and the constitution of the particular state involved) are the sources of justifications for suppression. Among other rights, the Constitution grants rights that control how individuals may and may not be searched, detained, or questioned. When the State, acting through its police force, violates these rights in order to obtain evidence, suppression is required. This is necessary to ensure the rights granted to the People have meaning. Below are some examples of conduct by police that violates the rights of the accused, and are likely to result in suppression of evidence gathered form such illegitimate conduct.
Evidence Found After Prolonged Detention An officer is permitted to temporarily detain an individual when the officer believes a crime has been or is about to be committed. Most commonly this occurs as a traffic stop for a minor traffic violation, such as speeding. But this ability to detain is limited: the stop must be conducted and concluded within a reasonable time. This means even an initially lawful stop may become impermissible if the officer exceeds the time needed to address what justified the stop.
The seminal case that articulated this point is Rodriguez v. United States. In Rodriguez, the officer pulled over the defendant for a traffic violation. After issuing a written warning, the officer decided to prolong the stop by conducting a dog sniff investigation of Rodriguez’s vehicle. The Supreme Court determined that this extension of time was impermissible, as the reason for the stop was satisfied upon the issuing of the citation. That is when the stop should have ended, and all evidence found after that point was inadmissible in Rodriguez’s case. The Kansas Supreme Court has made a number of similar decisions, such as State v. Coleman and State v. Mitchell.
It is important to note that the officer may extend the stop if reasonable suspicion of another crime arises prior to the completion of the initial stop. Thus, if an officer, in the course of issuing a citation for speeding, sees an open container of alcohol in the vehicle’s cup holder, the nature of the stop may change to allow investigation into that violation. This highlights how important it is to avoid providing unnecessary information during a traffic stop. An individual should always know of the right to remain silent, and exercise that right freely when dealing with police.
Coerced Admissions Individuals in the United States cannot be compelled to produce evidence against themselves. However, if an individual chooses to give up this right, such information can be used in a criminal prosecution. The key issue generally turns on why the individual choose to forego the right. Particularly, was he or she forced into making the statement?
The Kansas Supreme Court dealt with this issue in the context of breathalyzer tests. In State v. Compton, the court noted the middle ground an officer must stay within: An officer is not obligated to explain options and consequences to an individual, but the officer may not mislead an individual about such test. Misleading statements by an authority figure, such as an officer, are coercive. They rob an individual of his or her free will to decide to forego the rights guaranteed by the Fifth Amendment. This logic applies with equal force to all self-incriminating evidence, including testimony of the accused.
Courts recognize the commanding presence an officer has, particularly over an individual that is detained via traffic stop or arrest. The Constitution does not allow an officer to abuse this authority, and thus any decision of an individual to provide evidence against his or herself must be a decision made free from coercion by law enforcement.
At the heart of these matters is the importance of exercising Fifth Amendment rights. Officers are tasked with a single mission: to catch criminals. The Constitution recognizes that this single mission blinds officers, tempting them to overstep boundaries in an effort to collect evidence. This means it is the responsibility of the individual to safeguard his or her own liberties, and individuals are free to do so without being coerced by law enforcement.
Destruction of Evidence Favorable to the Accused The State has a great amount of power in criminal prosecutions. This power includes the ability to investigate criminal activity, which includes having virtually exclusive control over potential evidence. Courts recognize the danger of this fact—that the prosecution may well find evidence that suggests the accused is innocent (known as “exculpatory evidence”), but neglect to disclose this evidence to the accused. When the State deliberately fails to preserve this favorable evidence, the remedy may be to exclude all evidence the State choose to keep instead.
In Brady v. Maryland, the United States Supreme Court determined the State’s obligation to preserve and share exculpatory is key to a fair trial. Thus, when the such evidence is still available and of use to the accused, a new trial should be ordered, with the accused having access to the evidence. But what happens when the evidence is destroyed or rendered useless? Evidentiary rules require specific actions be taken in handling and storing evidence. This ensures the evidence isn’t tampered with or altered. If police don’t treat exculpatory evidence as they should, a new trial might not be enough; it might be too late to save the mishandled evidence. The court determined that for this requirement to have any meaning—any “teeth”—the remedy for destroying or mishandling exculpatory evidence must be quid pro quo treatment: suppressing evidence the State chose to preserve in place of the exculpatory evidence.
The key in determining if this remedy is required is why the State decided not to protect the exculpatory evidence and how valuable it was to the accused. Thus, if the State knew that the evidence was helpful to the accused, but choose to deny adequate protection to the evidence anyway, the remedy is most appropriate. An example of this is the results of a breath-test that indicates the accused was not over the legal limit. Some items may be useful to the accused, but that fact is not obvious from the nature of the evidence. Suppression is only appropriate here if the State acted in bad faith: the State knew the evidence was likely useful, but failed to preserve it anyway. The State may spoil the evidentiary value of such items, but suppression of other evidence is not warranted because the value of the evidence was not obvious.
Police departments act quickly in investigating crimes and determining which evidence is entitled to proper handling and which shouldn’t be kept under the State’s exclusive control. Because of this compressed timeline, it is always important that anyone accused of a crime contact qualified counsel as soon as possible to ensure all exculpatory evidence is properly preserved.
Interrogation after Request for Counsel An individual accused of a crime is entitled to have counsel present during questioning. Once the accused asserts his or her right to counsel, the police must honor this right. The request can come in many forms, and the court will ultimately decide if the statement suggests to a normal, reasonable person that the accused wanted legal counsel. But what happens if police continue to talk with a suspect after a request for an attorney?
In Edwards v. Arizona, a bright-line was drawn by the Supreme Court: once the accused requests counsel, interrogation ends immediately. This ensures that the right to counsel is meaningful, and that police cannot simply wear down an individual by constantly challenging the decision to invoke the constitutional right. To protect this right, the court went a step further and determined that once the right to counsel has been invoked it cannot be waived by the accused at the request of the police. Thus, if an individual asks for a lawyer but is instead offered a waiver of counsel, that waiver is invalid even if signed by the accused. Further, any evidence obtained after signing that waiver, including consent to search the accused residence, belongings, or vehicle, should be suppressed.
The rule developed in Edwards attempts to protect individuals from coercive police actions. However, another important takeaway from the Edwards rule is how important it is for an individual to use the rights granted by the Constitution. It is very important that anyone accused of a crime invoke his or her rights, including the right to remain silent and the right to have a lawyer present during questioning. The Constitution grants individuals these rights, but the individual must be the one to invoke the rights and it should be done as soon as the investigation begins.
Exceeding the Scope of a Private Search The Constitutional provisions controlling searches only apply to government actions or actions done at the direction of the government. If the search is being performed by a private individual, such as a family member, significant other, or common-carrier employee, the Constitution cannot offer protection to the property owner. But what happens when the private party offers what they find to the police?
Police are allowed to examine evidence found in a private search that was not encouraged by the government. However, police are not allowed to further search such evidence—they are required to look only at what the private party saw. Thus, when the private party finds evidence in a container or on an electronic device, police can easily go impermissibly further in examining the item. This additional search violates the Fourth Amendment, and thus any information found from the excess search activity should be suppressed. This occurs primarily in two situations: where a roommate or other individual locates evidence inside the accused’s home, or when a common-carrier employee discovers evidence located inside a package being shipped.
In Runyan v. United States, the defendant’s girlfriend found several compact discs containing incriminating evidence. She only looked at a handful of the discs, but produced several others to the police. The court held that the police were allowed to view exactly what the girlfriend had seen, but could not open and view the discs that the girlfriend had taken but not viewed. Such evidence should have been suppressed, because it went beyond what the private party searched.
In United States v. Jacobsen, a package being shipped via UPS tore open in transit. The contents of the package could be seen to be white powder. The court held that the police were able to test this powder to determine it was cocaine, and the test results and contraband should not be suppressed. This was because the police stayed within the scope of the UPS worker’s search, and only further examined the substance that had already been uncovered.
Obviously, the line between when the police exceed the scope of a private party’s search is difficult to discern. It is important to remember that just because a private party brought evidence to the police does not mean it was legitimately produced. It is important to ask the right questions, and these questions are best decided by discussing the actions with an attorney.
Exceeding Scope of Search Warrant When an officer has enough reason to think evidence of a crime will be located at a specific place, the officer can obtain a search warrant from the court. The court should seek to limit the scope of this warrant—the limits of what may be searched—as much as possible to preserve the individual’s right to privacy. Thus, a warrant has three “dimensions” of limitation: what officers are searching for, who is being accused of criminal activity, and where officers may search for evidence of this criminal activity. These limitations are the furthest reaches a judge is willing to allow the search to reach. If an officer exceeds these boundaries, any evidence found should be suppressed (unless the officer has independent justification for expanding the search).
Officers may search anywhere on the identified premises that is capable of storing the object of the search. Thus, the court in United States v. McLevain held a search for two men permitted the officers to look underneath beds and in closets: places where two men might hide. However, when the object of the search was a stolen rifle, the search of folders was beyond the permissible limits because the rifles could not physical be within the folders.
The party named on the warrant is suspected of criminal activity, and thus his or her property is also deemed suspect. Belongings of others, however, don’t necessarily receive the same suspicion. In State v. Lambert, the Kansas Supreme Court found such a violation. Lambert’s purse, which she had with her when police executed the warrant on her friend’s residence, was not included within the scope of the search warrant. This was because it was not “associated with” the subject of the warrant; it belonged to Lambert, and just happened to be in the residence when the warrant was executed. Thus, the evidence found within the purse was suppressed.
Finally, the location must be specified by the warrant. An address identified includes the residence and “appurtenant” objects and locations. For example, a search warrant for an apartment includes the ability to search the closets within the apartment, as decided in United States v. Fagan. However, a separate garage that had been converted into a rental unit was outside the scope of a named address in United States v. Cannon. The courts look to what a “common sense” answer to questions would be, meaning if the area is likely to be considered part of the address in everyday life (like a closet) it is likely to be considered within the scope of the warrant.
The exact scope of a warrant is difficult to determine. However, unlike most police activity, the scope is measured by an unchanging instrument. This makes correcting overreaching via suppression easier than other contexts. This is only true so long as the officers do not gain reasons for suspecting other areas or individuals of criminal activity while executing the warrant. Thus, it is important remember an individual’s rights to remain silent and have an attorney present during interrogations, so that an officer does not have access to surplus information that may justify otherwise impermissible actions.
Exceeding Scope of Search Incident to Lawful Arrest (SILA) When an officer completes a lawful arrest, the officer is permitted to complete a very limited search of the person and the immediate area. This search is known as a search incident to lawful arrest, or a SILA. In Chimel v. California, the United States Supreme Court stated a SILA is appropriate because the arresting officer must be allowed to ensure the suspect does not have access to a weapon or the ability to destroy nearby evidence. This limited purpose means the scope of the search is likewise very limited, including only the person and the surrounding area in which the suspect could reach for an item. Any search that exceeds these boundaries is impermissible without independent justification, and will result in suppression of the evidence found.
The purpose behind a SILA controls its limited scope. For example, in Riley v. California the United States Supreme Court did not find a SILA to include searching the data located on a cell phone. An arresting officer is allowed to search the arrestee for the cell phone itself, to ensure the device is not destroyed by the party. Additionally, physical aspects of the phone may be examined, because these aspects support the safety justification of a SILA. The data contained on the cell phone, however, does not support either justification: the officer is not in danger from such electronic data and the phone will be kept outside of the arrestee’s possession until he or she is released from custody.
Additionally, if the suspect is removed from the area, the justifications that would have supported a SILA are defeated. In Arizona v. Gant, the officers placed the arrestee in the back of their patrol car before completing a SILA search of his vehicle. The court held that this action was impermissible, because the restrained arrestee couldn’t access any weapon or potential evidence in the car at the time of the search. Without the protection of the SILA, the evidence discovered in the vehicle was suppressed.
The exact sequence of events and location of a search is crucial in determining if evidence exceeds the scope of a SILA. Thus, it is important these details are remembered and conveyed accurately to legal counsel. A slight variation in when an arrestee is removed from the area of arrest or how far away from the arrestee evidence is discovered may mean the difference between suppression and admission.
Coerced Consent Individuals are granted the right to be free from unreasonable, warrantless searches. Because this rights belongs to the individual, the individual may waive the right and consent to a search that would be otherwise impermissible. However, this consent must be given “freely and voluntarily” to be valid. Thus, if law enforcement coerces an individual to consent to a search, the evidence found via that search should be suppressed.
Courts are sensitive to the fact that law enforcement officers have “command presence.” This aura of authority can lead individuals to agree to actions they normally would not, out of fear or intimidation. In Kansas, courts look to several factors to determine if consent was coerced, including if a weapon was displayed, if physical contact occurred between the officer and individual, positioning of the officer or officers around individual, and commanding language used. The key is whether a normal, reasonable person would have felt free to refuse the officer’s request. In State v. Spagnola, the Kansas Supreme Court found the defendant’s consent to be searched coerced. There, Spagnola was placed in a prone position with his hands behind his head, his back to multiple officers. He then consented to be searched; clearly this was not a free and fair atmosphere where a normal, reasonable person would feel capable of refusing the search. Thus, the evidence found on via this search was suppressed.
It is important to remember that individuals have rights when dealing with police. Police may employ intimidation against citizens in multiple ways. However, it is important to remember that if an officer is asking to search, that officer does not have to ability to search yet. Why would the officer need permission to do so? A search is embarrassing, timely, and intrusive for all individuals, regardless of if any incriminating evidence is found. This is why the Fourth Amendment disallows such searches.