By Criminal Defense Lawyer Jeremy Rosenthal
One of the best weapons in defending many cases is the exclusionary rule. That rule prevents illegally attained evidence from being used by the prosecution during trial. The exclusionary rule is the citizens legal protection remedy from illegal police acts. A motion to suppress evidence is typically the vehicle for the accused to try and trigger the exclusionary rule.
During an illegal search – the police have broken the rules. Yet the police officers aren’t charged criminally themselves and no one loses their job. Instead – police learn how do to it correctly the next time. This is the whole point.
“Illegal” Has a Broad Meaning
Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’ The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.
Calling a search or particular police action ‘illegal’ is really no different. As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe. But the rules are the rules and everyone has to play by them.
Illegal Searches Are More Common Than You Might Think
The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling. You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law. We can debate about exactly who and why police may be targeting – someone covered in tattoos, teenagers, or as history teaches us – racial minorities. But profiling is profiling.
The law combats profiling by requiring police to have “articulable facts” to justify traffic stops and continued roadside detentions. Articulable facts is the difference between saying someone was going 74 in a 60 and “the car was suspicious.”
It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case. Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts. Bad stops can be and frequently are thrown out.
Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets. They will often push and test the rules for reasons they think are justified.
The end result may be that often they have mis-stepped.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.