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What If Police Searched you Illegally?

April 1, 2020

Experience Getting Evidence Thrown Out in Court

     I have been defending clients accused of committing criminal offenses for over a decade. Many of these involved drug possession and gun charges. These can be characterized as possessory offenses. They almost always occur following some kind of search. This could be the police searching your car, home, or person.  The issue of “possession” is a subject of its own. But before the state can prove the illegal item was yours, they have to get it into evidence. You can challenge whether police searched you illegally

     That is where an experienced defense attorney usually does much of the heavy lifting in such a case. Indeed, the entire case usually rises or falls on this very issue. There are special rules involved in make such challenges. Those rules are governed by court rule, statute, and case law. 

Motions to Suppress Evidence 

     What can you do if police searched you illegally? The first steps in a case like this are to usually handle any procedural preliminary issues. This includes entering not-guilty pleas and filing any appropriate notices. Contact will also be made with the prosecuting attorney’s office. This is done in order to obtain all case discovery and open a dialogue about the case.     

     You can challenge the evidence in a case involving a police search of your home, car, or person. This is done by first filing a motion to suppress evidence. The motion is a legal document that your attorney prepares. Its purpose is to put the state on notice as to what exactly you are challenging. It is critical to file such a motion well before any trial. It is too late to arguing these issues at trial. You would be surprised to see how often this unfortunately happens though. 

After the Motion is Filed

     Along with the motion, a proposed court order should usually be submitted. If the case is in Superior Court, a certification is also required pursuant to rule. Depending on the legal or factual issues, a brief may also be filed. A brief is basically your legal argument laid out on paper. 

     After the state responds, a hearing date will be set. The hearing not conducted in front of jury. Rather, a judge presides over the hearing as the finder of fact and law. At the hearing, the judge will hear any proposed testimony. The judge can also view exhibits. The defense attorney and prosecutor each present their witnesses and cross-examine the other’s. 

Legal Standards

     The rules of evidence are relaxed during a suppression hearing. This means typical objections such as hearsay will usually be overruled. This comes up a lot when a police officer is asked to testify about what someone else told them. For example, in a case where the officer was dispatched to a house, what was told to the officer by the dispatcher. Or, what was told to the dispatcher from an eyewitness or victim. 

     The burden of proof in a suppression hearing depends on whether a warrant exists. Defendants have the burden of proof if the search was conducted without a warrant. The burden is on the state if the search was conducted without a warrant. In Superior Court, the defense’s adversary will be the Assistant Prosecutor handling the case. In Municipal Court, the defendant’s adversary will be the Municipal Prosecutor.

Who Opposes the Motion? 

     Assistant Prosecutors work full-time for the County Prosecutor. The County Prosecutor is appointed directly by the Governor. Municipal Court Prosecutors work for the municipality. They are appointed directly by the town committee or mayor. This depends on how the town is politically organized and structured. 

     It should be noted that the County Prosecutor’s Office must be noticed on all suppression motions filed in the state. This is required even if the case is being heard in Municipal Court. 

The Warrant Requirement And Probable Cause 

     The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution govern this issue. The both say: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Generally, a search must therefore be conducted with either a warrant or with probable cause. In some cases, additional requirements are required before police can conduct a search. 

Probable cause exists when an officer has a well-founded suspicion of guilt. This may constitute something less than proof needed to convict and something more than a vague suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998)(citing State v. Davis, 50 N.J.16, 23 (1967), cert.denied. 389 U.S.1054 (1968). Probable cause is not a rigid concept. It is a “flexible, nontechnical concept.” State v. Novembrino, 105 N.J.95, 120 (1987)(citation omitted).

What Makes a Search Illegal?

     This depends on a variety of factors beyond the scope of this article. Different standards apply to different types of searches. For example, searches of cars are subject to different rules than home searches. Searches of individual’s persons also depend on a variety of factors. Was the person already under arrest? Were they a passenger in a car? Were they simply walking down the street while “looking suspicious?” The law regarding each type of these situations is different and needs to be thoroughly understood by a defense attorney. 

     Courts determines the existence of probable cause by applying a common-sense, practical standard. Courts look to the facts of the case. The chief inquiry is whether a reasonable person would believe that an offense was being committed.

What Happens After the Motion Hearing? 

     If the judge agrees with the state, the case proceeds like before. The state may now use the evidence that was taken after the search. If the judge agrees with the defense that police searched you illegally, that can be a game changer. In some many cases, without that evidence the state will not be able to prove the case. Proof in a criminal case must be beyond a reasonable doubt. 

     The state has two choices if they cannot proceed against you without the evidence. One choice is to simply dismiss the case. Another is to appeal the judge’s decision. It should be noted that the state cannot appeal a not-guilty finding after trial. That would trigger double jeopardy. However, the state can appeal a motion to suppress evidence. 

Suppression Hearing Appeals

     The Superior Court Law Division hears appeals from municipal court suppression motions. The Superior Court Appellate Division hears appeals from Law Division suppression motions. Appeals courts have certain standards of review. The higher court gives credit to the lower court’s factual findings. This is unless they are supported by sufficient credible evidence in the record. 

     The higher appellate court usually only reviews legal issues. I have argued suppression motions in Municipal Court and on appeal. If the police searched you illegally, call my office for help. 

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