By Collin County 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.
Isn’t it a Bit Much to Say the Police Acted Illegally?
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.
Motion to Suppress
A motion to suppress the evidence is a request for the judge to trigger the exclusionary rule and render the illegally attained evidence unusable. The most common legal grounds are the 4th Amendment to the US Constitution prohibiting illegal search and seizure and Texas Code of Criminal Procedure Article 38.23.
Illegal Searches Can’t be Very Common, Right?
They’re more common than you think. You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law. The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling. Though today’s police might also include teenagers or people who have an alternative appearance in addition to racial minorities – there isn’t much of a difference under the law. Profiling is profiling.
Articulable Facts vs. Subjective Opinion
You also have to remember police in targeting certain groups are often aggressive in their approach. Police need to be able to articulate the facts which justify traffic stops and continued roadside detentions. As an example a police officer saying he stopped a car because “he just knew they were up to no good” isn’t going to fly. It’s a hunch and courts don’t like that.
Closer examples might include 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. Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.
Articulable facts, on the other hand, might include “the driver was going 58 in a 45.” Or the driver smelled like alcohol, said he was on his way to Dallas but was driving the opposite way.
So where an officer can plainly, quickly, and obviously explain the probable cause – the better chance they have of keeping a detention legal. The more they rely on opinion and conjecture – the more problems they might have explaining it later.
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 F. Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.