CHALLENGING THE POLICE 4th AMENDMENT

Criminal Defense Attorneys are the enforcers of the 4th Amendment of the U.S. Constitution and State Constitution.  They are the advocates who bring questionable searches and seizures to the courts attention. If they bring it to the court and the court agrees with the Attorney. The remedy or the solution is that the items which were seized become suppressed. Suppressed is another way to say deleted, thrown out, unusable. When the judge “suppresses” something that means the government cannot use it-ever. So it is a very common practice to challenge the collection of evidence by police. A defense attorney challenges the evidence by:

1) Investigating the case

2) Going to the scene of the search

3) Interviewing witnesses

4) Filing a motion, affidavit and memorandum of law with the court where the defendant is charged

5) Summoning into court the officers and people involved in the search;

6) Take testimony from that person with direct and cross examination at a hearing

7) Make the final arguments to the judge

Sometimes the judge may ask for more time to review the law and review the filings of the parties. So, often there will be another court date to hear the court decision. But if the court agrees with the Defense Attorney, that item, that piece of evidence can never be used and depending on the case—the case is often dismissed.

Recently,  Massachusetts Appeals Court gave a decision regarding a Massachusetts State Trooper who pulled over someone and arrested for them having 159 Pounds of Marijuana in the car. In that case, the police saw a car making an incorrect lane change and speeding. They pulled him over. They didn’t notice anything—yet had the driver get out of the car. The police bought in k-9 sniffing dogs as they smelt unburnt marijuana. The problem for the police is they had no legal justification for requiring the driver to exit the motor vehicle. A command to exit a motor vehicle is called an exit order. The court went on to say in much greater detail that I am on this brief but to summarize stated:

To support an order to exit a vehicle, the officer need not point to specific facts that the occupants are armed and dangerous; rather, the officer need only point to some fact or facts in the totality of the circumstances that would create a “reasonable suspicion of danger” that would warrant an objectively reasonable officer to secure the scene in a more effective manner by ordering the occupants out of the vehicle.  Commonwealth v. Foreword, 445 Mass. 72, 75–76 (2005), cert. denied, 546 U.S. 1187 (2006).  

 

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