STOPS, DETENTIONS, ARRESTS AND SEARCHES RESULTING FROM THEM
A. The police may stop a person or a vehicle whenever they have a reasonable suspicion that criminal activity is afoot. Reid v. Georgia, 448 U.S. 438 (1980). This standard is a level of cause greater than mere suspicion or hunch, but less than probable cause to arrest. U.S. v. Hensley, 469 U.S. 221 (1985). In other words, if you have a case where it is clear the police did not have enough to arrest your client but stopped him nonetheless, the stop must be based on something more than a general suspicion or hunch that the person may be involved in criminal activity. If it is not you should pursue suppression of all evidence acquired as a result of the illegal stop.
B. Assuming the stop is based on reasonable suspicion, the police may detain your client long enough to investigate that reasonable suspicion. The detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491 (1983). Therefore, assuming the police have stopped your client to investigate potential criminal behavior, have thereafter satisfied themselves that their suspicions were not warranted but continue to detain your client, you should file a motion seeking suppression of all evidence acquired or developed as a result of the detention.
C. During an investigative detention the police may do a "search for weapons" when they have a reasonable belief that your client may have weapons which may be used to assault the officer. This authority allows for a pat-down of your client's person, State v. Williamson, 113 Wis. 2d 389 (1983), and a search of your client's vehicle. However, many police officers routinely do pat-downs and vehicle searches in the absence of particularized facts suggesting that they are in danger. When you encounter such a situation you should pursue a motion to suppress all evidence developed as a result of such a search.
D. One of the most common issues you will encounter is whether the police had enough evidence to arrest your client. Often it is the arrest that triggers the interrogation of your client and the search for and seizure of items from his person and/or vehicle. "Probable cause to arrest exists if the facts and circumstances known to the police officer and of which he has reasonably trustworthy information warrant a prudent man into believing an offense has been committed and that the defendant probably committed it." Probable cause for arrest is the same as the level of probable cause required to issue a criminal complaint. Therefore, one practical way of answering this question is to ask whether the information known to the officer at the time of the arrest would be enough to charge your client with a crime. When you believe an arrest has been made without probable cause, and evidence acquired as a result, a suppression motion should be filed.
E. Often there is an argument as to exactly when an arrest occurred. The words "you are under arrest" are not required before a person is considered to be legally under arrest. Handcuffs, being placed in a locked vehicle and other such activities do not always answer the question either. The test is whether a reasonable person would consider him or herself to be in custody given the degree of restraint, the circumstances of the situation and verbal or nonverbal communications by the police. The subjective belief of the arrestee and of the police is not relevant. Therefore, where there is a convergence of lack of freedom with an objectively reasonable belief that such lack of freedom is associated with an accusation that your client has committed a crime, you should argue that your client is under arrest. The question then becomes whether there was enough evidence to support that arrest. When you think there is not you should file a motion seeking to suppress all evidence acquired as a result of the arrest.
F. The police are allowed to search your client and/or his vehicle whenever they have made a legal arrest. The justification for such a search is officer safety. However, if the search precedes the arrest it is illegal because the justification did not attached at the time of the search. See United States v. Robinson, 414 U.S. 218 (1973); Knowles v. Iowa, 119 S. Ct. 484 (1998) and State v. Swanson, supra.
II. CAR SEARCHES
A. When the police have probable cause to belief that contraband is inside a vehicle they can search it absent a warrant. Such a search is justified by the mobility of the vehicle. See United States v. Ross, 456 U.S. 798 (1982); Chambers v. Maroney, 399 U.S. 42 (1970). However, the search for contraband is limited by the nature of the article for which probable cause exists. For example, if the police are looking for a person the search of a vehicle cannot legitimately extend to small containers in the vehicle. On the other hand, if the police are looking for small quantities of drugs, any portion of the vehicle, including closed containers, are legitimate targets of the search. Moreover, the police can open such a closed container. California v. Acevedo, 111 S. Ct. 1982 (1991).
Therefore, the key inquiry is almost always whether the police have probable cause as to a specific item that they are looking for. When you believe they do not you should file a motion to suppress the fruits of the search for such an item and anything else found during the search.
III. CONSENT SEARCHES
A. The police may search your client, his vehicle, his home, his suitcase, etc., any time there is valid consent to search. You will often encounter this issue. The State has the burden to show that the person who gives consent was authorized to do so and that the consent was freely and voluntarily given. The consent must be more than nonresistance to police orders - especially where a person is under arrest. In Laasch v. State, 84 Wis. 2d 587 (1978), the court held that "consent to entry is not to be lightly inferred, it must be shown by clear and convincing evidence". The burden is on the State to show a "free, intelligent, unequivocal, unspecific waiver." Id. And don't forget, your client can limit the scope of his consent. Florida v. Jimeno, 114 L.Ed.2d 297 (1991).
B. In most routine on-the-scene stops and arrests, the police will want to search your client and/or his vehicle. They will try to obtain consent to search when they know they don't have any other way to do it. Carefully evaluate whether the police have followed the rules on consent searches and if you believe that they have not, or you even suspect that they have not, pursue a suppression motion.
IV. HOME ENTRIES
In the absence of a warrant or exigent circumstances the police can not enter a home, or its curtilage, to conduct a search or an arrest - even when they have probable cause. Payton v. New York, 445 U.S. 573 (1980); Welsh v. Wisconsin, 466 U.S. 740 (1984); New York v. Harris, 110 S. Ct 1640 (1990). The most common "exigent circumstances" are hot pursuit, safety threat, evidence destruction and suspect flight. The police will almost always claim some sort of exigent circumstance when they lack a warrant. You should give such claims a great deal of scrutiny.
V. SEARCH WARRANTS
Many challenges to search warrants will not involve an evidentiary hearing. Instead, you will be arguing whether the warrant and/ or affidavit is facially sufficient. However, there are a couple of very important exceptions, which are discussed below.
A. You can bring a motion to suppress because the warrant is based upon illegally obtained evidence. Such a motion may require you to litigate the legality of the evidence that is referred to in the search warrant affidavit. For example, assume your client is illegally detained and searched. During the search the police discover evidence that suggests that your client's home contains contraband. A search warrant affidavit is prepared referring to the fruits of that illegal search and the probable cause for the search warrant is based upon those fruits. Under such circumstances all the evidence acquired pursuant to the search warrant should be suppressed.
B. Where probable cause for a warrant is based on false statements or omissions of the affiant and it can be shown that the statements/ omissions were made intentionally or with reckless disregard for the truth the warrant may be invalid. You are entitled to an evidentiary hearing on this question. However, if there is other information in the affidavit supporting probable cause your motion will fail. See Franks v. Delaware 98 S. Ct. 2674 (1978)
C. A search warrant must particularly describe the items that the police are authorized to search for and seize. The smaller the item the police are looking for the broader is the area the police can look for it inside your client's home. Sometimes the police will find what they are looking for right away but continue to search your client's home. Where the police search for and/or seize items not authorize by the warrant you can bring a motion to suppress such evidence.
D. Before the police can enter a home with a search warrant they must announce their presence, purpose and identity and allow the occupants of the home to voluntarily let them in. This rule is known as the "knock and announce rule." However, where the police have specific information indicating that evidence will be destroyed or that suspects are armed or likely to flee they can enter unannounced. State v. Meyer, 216 Wis. 2d 729 (1998). You should always ask your client whether he heard an announcement and how long there was between the announcement and the police crashing through the door. While there is no specific time frame for how long the police must wait, anything less than ten seconds is likely to be considered unreasonable. These sorts of hearings are highly fact specific and it is recommended that you subpoena every officer who was present during the entry. Often you will find that the officers will give different versions as to what was said prior to entry and how long they waited before forcibly entering. See, generally, Wilson v. Arkansas, 115 S. Ct. 1914 (1995); Richards v. Wisconsin, 117 S. Ct. 1416 (1997).
E. All of the above search warrant issues - except, ironically, knock and announce - are potentially subject to Wisconsin's relatively new good faith exception. See State v. Eason, 245 Wis. 2d 206 (2001) which holds that even if the warrant is defective evidence will not be suppressed if (1) the police acted in objectively reasonable reliance on the warrant; (2) there was a "significant" investigation that preceded the issuance of the warrant and (3) the warrant was reviewed by another experienced officer trained in the requirements of probable cause or a government attorney. Therefore, to avoid a good faith claim you may need to litigate theses issues along with any others at your hearing.
VI. IDENTIFICATION
This topic has become one of increasing interest to many in the criminal justice system. Convictions based on mistaken identifications have been exposed and it looks like judges are more willing to consider granting motions challenging identifications than at any time in the recent past. What follows is a brief overview of the law in this area.
A. Police are allowed to conduct a "show up" (showing only one suspect) if it occurs during an investigative detention and is designed to confirm or dispel suspicion that a suspect is indeed the wanted perpetrator. However, the police often have more than enough probable cause to arrest someone and yet produce the client, alone, before the victim, in a highly suggestive manner.
B. The police most often will conduct a line up using photos. You will need to show that the lineup itself, or the way it was conducted was unnecessarily suggestive. Common factors are:
Statements by the police or others.
Dissimilarity in appearance.
Dissimilarity in presentation of suspects.
How easy it was to avoid suggestiveness.
Whether multiple witnesses affected each other's ID.
C. Unlike most suppression motions, the defense bears the initial burden of proof. The defendant must show a reasonable possibility that a hearing will establish a factual basis or legal theory for the defense to prevail before the court is required to hear the motion. Once the initial threshold has been met, the defense, at the actual hearing, has the burden to show the identification was unnecessarily suggestive. If the defense is successful in showing that the identification procedure was unnecessarily suggestive, the State can still prevail if it establishes by clear and convincing evidence that the identification is nonetheless reliable. This is a totality of the circumstances test. The court will look to whether the victim had a good chance to see the suspect, the degree of attention, the accuracy of a prior description, the level of certainty, the lapse of time between identification and the crime, and any prior identification of a person other than the defendant.
D. Even if the State fails to show that the identification was reliable, the State can still prevail by establishing, through clear and convincing evidence, that the in-court identification is based on an independent source. In other words, the source must be independent of the unduly suggestive lineup / show-up procedure that the court has ruled improper.
E. New guidelines for conducting line-ups have been recently promulgated by the Wisconsin Department of Justice and can be found at the following website: http://webmail.frontiernet.net/horde/services/go.php?url=http%3A%2F%2Fwww.doj.state.wi.us%2Fdles%2Ftns%2FEyewitnessPu. Lineups that have been conducted since the promulgation of these guidelines, but not pursuant to them, should be especially subject to a suppression motion in Wisconsin anyway......
F. As you can tell from the information above, winning identification suppression motion is very difficult. However, pursuing such a motion - even where you expect to lose - may be more important than anything else you can do in an identification case. Your only opportunity to determine the strengths and weaknesses of the alleged victims claim that your client was the guy may be lost if you fail to pursue such a motion.
VII. CONFESSIONS
The police will try to get your client to confess in almost every case and often your client's confession is the most damaging piece of evidence. The police are trained to get your client to confess even when he or she does not want to. There are several requirements that must be met, by the State, before your client's statement is considered admissible as evidence. These requirements will be discussed, in general terms, below. As a procedural matter, you should know that motions to suppress statements do not require a written motion unless the defense wishes a hearing prior to trial. §971.31(3), Stats. Nonetheless, most judges expect the issue to be raised pretrial.
A. Voluntariness of Statements
1. Before a statement can be considered admissible it must be obtained under such circumstances that it represents the uncoerced free will of the defendant.
Police misconduct - coercion of some type is necessary before a finding of involuntariness can be had.
3. You can also move to suppress a witness' statement based on police misconduct - but the standard is higher. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically "egregious" police misconduct that offends due process."
4. The totality of the circumstances determines voluntariness. It is a balance between the defendant's personal characteristics and police pressure.
Common factors which affect voluntariness are:
a) Age of the accused;
b) Whether the accused is appraised of constitutional rights;
c) Whether there is a request for counsel;
d) The police response to a request for counsel;
e) Physical condition of the accused;
f) Mental condition of the accused;
g) Delay before first court appearance;
h) Showing defendant crime victims;
i) Sleep deprivation;
j) Intoxication;
Previous defendant experience with the police;
Police Threats;
Relays of interrogators;
Physical abuse; and
Promises of leniency.
5. The police are allowed to lie (usually about the strength of the case against your client) in order to get a confession. However, deceit is a factor in the totality of the circumstances analysis.
An involuntary confession cannot be used for any purpose at trial.
B. Miranda Issues
1. A suspect, who is in custody, and who the police want to question, must be advised of: (1) his right to remain silent, (2) that anything he says can and will be used against him in court, (3) that before and during questioning he is entitled to the presence and aid of an attorney, and (4) if the suspect cannot afford an attorney one will be furnished at public expense. The court in Miranda v Arizona, 384 U.S. 436 (1966) said: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way." Direct interrogation is not required to invoke Miranda. Anything that is designed to elicit an incriminating response is the functional equivalent of questioning. Rhode Island v. Innis, 446 U.S. 291 (1980)
2. Providing Miranda warnings is only the first step. The police must also establish that the suspect understood the rights and voluntarily, knowingly and intelligently waived them. See Miranda v. Arizona, supra, at 475
3. The assertion of the right to counsel requires that the police stop all questioning until a lawyer has been provided or the suspect initiates further conversation. Edwards v. Arizona, 451 U.S. 477 (1981). State v. Wegner, 118 Wis. 419 (Ct. App. 1984).
4. Equivocal requests for an attorney are not sufficient to invoke the right to counsel. United States v. Davis, 114 S. Ct. 2350 (1994).
5. If your client asserts the right to remain silent, the police must "scrupulously" honor such an assertion. Michigan v. Mosely, 423 U.S. 96 (1975). But your client can reinitiate conversation, as can the police if they re-administer Miranda.
6. If the police obtain a confession without Miranda warnings, and subsequently obtain a second confession, which is preceded by Miranda warnings, the second confession is admissible; the first is not. Oregon v. Elstad, 470 U.S. 298 (1985).
7. A voluntary statement obtained in violation of Miranda may not be used during the state's case-in-chief but may be used in rebuttal if your client testifies at trial. Harris v. New York, 91 S. Ct.643 (1971).
