Presented by: Detective James Trainum (ret.), Washington, DC, Metropolitan Police Department; and Deja Vishny, Homicide Practice Group Coordinator and Deputy Training Director, Wisconsin State Public Defender

Presented by: Colin Fieman Assistant Federal Public Defender, Tacoma, WA; and Paul Ohm, Professor of Law, Georgetown University Law Center

This webinar was supported in part by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance.

Modern technology used by the police (including drones and mobile device forensic tools) and ever-changing drug laws make suppression hearings more challenging for the defense team. Advocates must invoke the Fourth Amendment in a world much different from the one in which the amendment was drafted. The defense attorney must create a well-developed record in support of a client’s claims. One method of developing the record is the use of experts to explain changing science and technology.

The police regularly target people of color by using pretextual vehicle and traffic violations – including illegal window tint and disobeying a crosswalk signal – to justify the initial interaction. The goal of police officers is to escalate the encounter with false allegations of the smell of marijuana or furtive movements to enable them to conduct a full-blown search. How can defense counsel make a motion to suppress evidence based upon an allegation of racial targeting?

In the latest editions of its interrogation manual, Reid and Associates adopted several positions that align with the views of its critics. In a nutshell, Reid and Associates directly or indirectly endorsed many measures that could help prevent false confessions. Defense attorneys seeking to suppress confessions can strengthen their arguments by noting when law enforcement officers ignore any of the recommendations in the Reid manual.

Scientifically Sound Approaches to Suppression in Eyewitness Identification Cases

The Manson v. Brathwaite test for the admissibility of challenged eyewitness identification evidence is flawed. As a result, courts routinely allow the admission of tainted identification evidence. Decided in 1977, Manson is not in accord with subsequent scientific research into eyewitness fallibility. Defense attorneys must adopt creative strategies to seek suppression and force courts to consider both the science and Manson’s flaws.

Brief of Amicus Curiae for the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers in Support of the Appellee.

Argument: The circuit court correctly concluded that the video recordings should have been suppressed because the State failed to follow minimization requirements. The Fourth Amendment prohibits the government from unreasonably intruding in citizens’ privacy. Here, the government recorded citizens over the course of several days in a day spa, where they had a reasonable expectation of privacy. The circuit court correctly found that the evidence should be suppressed here. Amici write to emphasize the unprecedented scope of the surveillance, as well as the importance of suppression here to protect the rights of both defendants and uncharged third parties. Traditionally, the remedy for an unconstitutional search would be suppression in a criminal trial. However, because some of the conduct surreptitiously recorded was perfectly legal, not everybody who was recorded has been charged with a crime. Furthermore, those third parties’ only recourse would be the possibility of a civil suit, which is costly. Indeed, suppression here is essentially the only way to deter the State from engaging in mass surveillance, knowing that many citizens would have little to no recourse. Any other result would encourage an “ends justify the means” approach that this Court has cautioned against.

Motion to Suppress Traffic Stop for Following Too Closely.

Motion to suppress memorandum on lack of necessity regarding wiretap evidence.

In The General Court of Justice Superior Court Division: State of North Carolina v. Farrar;

Memorandum of law in support of defendants motion to suppres evidence (wiretap)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA: USA v. Elfman et al. 

Argument: DEFENDANT STEPHANIE MARIE ELFMAN’S MOTION TO SUPPRESS TRAFFIC STOP FOR “FOLLOWING TOO CLOSELY”

En Banc Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union of Washington, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: Suppression of evidence is a proper remedy for Posse Comitatus Act (PCA) violations. The PCA protects constitutional rights. Suppression is a proper remedy for statutory violations ties to constitutional rights. Even if the PCA does not implicate constitutional concerns, suppression is an authorized remedy for PCA violations under this court’s supervisory powers. The extensive military surveillance of civilians in this case, combined with the threat of future PCA violations enabled by emerging technologies, supports suppression here. The PCA violations here go beyond Dreyer’s specific case. The documented widespread and repeated PCA violations of the past will only continue in the future because of emerging technologies. Suppression is the only effective remedy for affected civilians. 

Brief of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent.

Argument: The evidence was correctly excluded for reasons that are distinct from, but related to, deterrence. The exclusionary rule serves purposes other than deterrence alone. Judicial integrity is an important factor in the balance of benefits and burdens. Restoration of the status quo ante is likewise an important consideration. The rule's alternative rationales help explain why suppression would deter violations like the one in this case. The social costs of suppression do not outweigh the considerations favoring it.

Brief for Amici Curiae the National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers in Support of Defendants-Appellees. 

Argument: The GPS monitoring required a warrant. New York parolees have privacy rights. New York parolees' privacy rights are violated when they are subject to warrantless searches for general law enforcement and not parole purposes. The warrantless GPS tracking here violated Lambus' privacy rights. A reversal would have disastrous policy implications. The district court properly suppressed the wiretap evidence. Franks requires suppression of the wiretap evidence. Franks should be read to be consistent with Title III. Franks  requires suppression of the knowing violation found here. A district court has the inherent authority to suppress unlawfully gathered evidence in order to maintain the integrity of its own proceedings.

Brief of Amici Curiae Electronic Frontier Foundation and National Association of Criminal Defense Lawyers in Support of Petitioners.

Argument: Title III, including its territorial limitation, was expressly designed to limit intrusion and protect privacy. Title III's territorial limitation is an important component of the statute's restrictive framework. Congress imposed the "automatic" remedy of suppression to enforce the statute as a whole.