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Dear students.

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It's a pleasure to be with you again.

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Today's class will cover pretrial
motions and suppression of evidence.

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Next week, you'll be with my colleague
and cover trial.

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So basically, once a defendant
has been charged with a crime and

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the case proceeds to trial,
so no plea bargaining,

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the prosecution and defense are
allowed to enter pretrial motions.

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A motion is a document filed by
parties asking the judge to issue

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a specific ruling in order to throw
out a specific piece of evidence,

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for instance.

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We will focus on the pretrial motions
which may be filed by a defense

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attorney.

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Such motions are used to protect
the constitutional rights of defendants

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as listed in the fourth,
fifth, sixth and 14th Amendments.

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For instance, in a motion to dismiss,
the attorney asks the judge to

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throw out the case because the
court lacks jurisdiction.

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For instance, if the defendant's
Sixth Amendment right to a speedy

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trial has been violated or if there
is a double jeopardy.

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You remember this is in French,
the non bis in idem principle. In a motion

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for a change of venue.

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The attorney asks for the trial
to be moved.

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The Sixth Amendment (repeated) guarantees the right

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to trial by an impartial jury if
due to pretrial publicity or other

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factors,

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local prejudice, for instance,
against the defendant,

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is so great that he or she cannot
obtain a fair and impartial trial.

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And that was stated in Groppi v Wisconsin
in 1971.

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The case can be transferred to
a court in another district.

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In France, we have a similar,
similar procedure called "dépaysement".

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A motion for discovery is filed
to obtain the release of evidence

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from the prosecution to the defense.

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The Brady Rule, established in
Brady v Maryland in 1963,

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requires prosecutors,
when requested, to disclose,

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to reveal evidence, which is material
either to guilt or to punishment.

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This means that the evidence will
help the defendant establish their

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innocence or lead to a reduction
in their sentence.

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Failure to do this is a violation
of the due process of law guaranteed

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by the Fifth and 14th Amendments.
In legal English? material always

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means "of core importance".

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So every time you see something
about a clause of a contract being

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material, it means it's of core
importance,

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it's central to the contract.

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You may have noticed that I say
they when there is only one defendant.

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This is to avoid saying he or she
as unlike in French, English is

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gender neutral.

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So the defendant can be either
a he or she.

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And since I don't know,
it's easier to say "they". I'm doing

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this and it's extremely common.

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You'll see it again.

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A motion to suppress evidence asks
for certain evidence to be excluded

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at trial.

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If a defendant's confession is
obtained in violation of their

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constitutional rights,
for instance, with an unMirandized

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suspect, their attorney may file
a pretrial motion to suppress evidence

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to prevent the unlawfully obtained
admission of guilt from being presented

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to the trial jury.

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We will focus on the Fourth Amendment,
which places strict limits on how

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the police and other law enforcement
agencies, the FBI, for instance,

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can carry out searches and seizures
of property.

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Indeed, unreasonable searches and
seizures of property frequently

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ground pretrial motions to suppress
evidence.

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The Fourth Amendment was intended
to protect individuals against

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the searches and seizures carried
out by British colonial authorities

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during the war of independence.

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It prohibits unreasonable searches
and seizures by government agents

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and states that no warrant shall be
issued but upon probable cause supported

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by oath.

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So that's a swearing or affirmation
and particularly describing

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the place to be searched and the
persons, all the things to be seized.

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There are three main issues to
consider when analyzing a Fourth

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Amendment search or seizure.

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The first question that should
be asked is: did the government

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engage in a search or seizure as
defined by the Fourth Amendment?

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Originally, the US Supreme Court
saw the Fourth Amendment as protecting

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property rights, which meant physical
intrusions into individuals,

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houses, papers and effects.

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But in 1967, in a case involving
a listening device placed in a

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public phone, the US Supreme Court
altered its approach. In Katz v the United
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States,

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the court defined a search as an
intrusion into someone's reasonable

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expectation, hope of privacy. For
such an expectation to exist,

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an individual must show a personal,
that's a subjective expectation,

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of privacy in relation to objects
or information.

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Information is always singular
like evidence.

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For instance, if steps were taken
to prevent other people from accessing

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it.

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In addition, the court must find
that society should objectively

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recognize this expectation of privacy
as being reasonable.

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This definition maintains strong
protection for private homes and

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would obviously also protect,
for instance, items which an individual

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carries around in their pockets,
such as an opaque container,

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a bag, a box or suitcase.

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And since it goes beyond simple
property rights, it has also allowed

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the interpretation of the Fourth
Amendment to evolve in response

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to modern technological developments
such as telephone emails,

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GPS locations and stuff like this.

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For instance, cell phone location
data records covering a seven day

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period were found to be protected
under the Fourth Amendment.

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As the US Supreme Court stated
that an individual maintains a

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legitimate expectation of privacy
in the records of his physical

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movement.

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This was ruled in Carpenter v the
United States in 2018.

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So you understand in a case like this,
it means in order to to use the

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evidence obtained with a with the
records data for a phone,

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you need to have a warrant to to
allow you to to to search or to

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seize information about someone.

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However, if someone knowingly exposes,
reveals objects or information

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to the public, there is no Fourth
Amendment protection.

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This is called the plain view
exception, and we have discussed

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it earlier during the first lesson
with me, if you remember.

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The Plain View exception covers
items which can be seen from public

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areas, including from the air or
those in open fields,

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which is private land distant from
the home.

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An officer may seize objects that
are in plain view, provided that

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the officer is lawfully present.

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So did not trespass,
did not illegally enter a piece of land,

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and has probable cause to believe
that the objects are contraband

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so forbidden since such areas,
public land, abandoned property,

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open fields are not covered by
the Fourth Amendment protection.

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There is no specific requirement
for the police officers to comply

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with, to make a search or seizure legal.

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And in particular, there is no
need for a warrant.

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The US Supreme Court still applies
the older definition of a search

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as a physical trespass on personal
property, even in modern situations.

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In US V Jones in 2012,
the court held that the physical

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installation of GPS device on
the defendant's car in order to

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track his movements constituted
a search

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since placing the device on the
car constituted a trespass on Jones'

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personal effects.

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The second question you should
ask yourself in relation to the

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Fourth Amendment is: is there a
search or seizure?

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If there is a search,
a seizure (pardon me)

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Was it reasonable?

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And this means was it conducted
lawfully. Here,

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Reasonable means: conducted
in a lawful way. The most secure

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way for law enforcement authorities
to carry out a search is to do it

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 with a warrant
duly obtained from a judge or

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magistrate.

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This is the best guarantee that
your search will be bullet proof

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or I should say motion proof! In
order to be granted a search warrant.

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Ah, sorry, wrong, wrong rhythm
to my sentence.

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In order to be granted a search
warrant,

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the magistrate or judge must find
that there is probable cause based

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on a police officer's sworn affidavit.

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Okay?

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Probable cause is defined as a
fair probability that contraband

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or evidence of a crime will be
found in a specified place.

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This is the United States v Grubbs
in 2006.

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The warrant must clearly describe
the object of the search and the

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address where there is probable
cause to believe that the object

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is located.

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An affidavit is something you'll
hear about again, if you work with

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the Anglo-Saxon world;
an affidavit is a sworn, okay for

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which you swear that it corresponds
to the truth,

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formal statement.

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Okay.

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So a sworn formal statement is
an affidavit.

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As we have seen two weeks ago,
the US Supreme Court has recognized

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the reasonableness,

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so again, the lawfulness of many
searches which fall outside the

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scope of the Fourth Amendment.

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Remember, searches "incident" to
a lawful arrest.

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So when an individual is arrested,
the police may search the individual's

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person and the area under his immediate
control for weapons or contraband.

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This protects the police officer
and prevents the destruction of

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evidence.

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Consent negates the need for a warrant,
provided that it is voluntary and

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not the result of duress or coercion,
which means they were not forced

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to to give their consent to agree
to the police officer searching

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the house.

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For instance, a third party who
is a co-occupant of the house or

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has joint use of the property such
as a car, may give consent to a

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search if he or she has common
authority over the property.

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For instance, a flatmate,
someone with whom you share your

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house, or partner, boyfriend,
girlfriend, husband can lawfully

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give consent for a search of all
communal areas of the home.

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But this does not cover your private
bedroom, for instance.

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Furthermore, if the suspect is
present and refuses their consent,

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then he wins or she wins.

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And the co-occupant

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cannot authorize the search.

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You'd be surprised at the number
of people, although they have

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contraband or illegal stuff in
their house or car end up giving

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their consent to the police.

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The automobile exception allows police
to conduct warrantless searches

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of motor vehicles where there is
probable cause to believe that

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the vehicle contains contraband
or evidence related to criminal

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activity.

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And also due to the risk of the
vehicle being driven away,

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they must act quickly to prevent
the potential evidence from being lost.

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Another exception is the exigent
circumstances: they're held to apply

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when a police officer has probable
cause but insufficient time to secure

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a warrant from a magistrate.

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So you have probable cause in regular
times, you'd be able to run to

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a magistrate and secure a warrant.

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But here, because of the particular
circumstances, you have to act

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without delay.

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Okay, Then the police may enter
the premises, the house, dwelling

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of someone without a warrant to
prevent the destruction of evidence

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or in hot pursuit of a fleeing
suspect or in response to a threat

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to public safety.

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Okay.

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Evidence may also be seized from
an individual's person or immediate

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possession when there is an imminent
threat that it might be destroyed.

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And that was in Cupp v Murphy 1973.
Frisks, carried out as part of a

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stop and frisk,

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you remember this?

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The Terry stop do not require a
warrant or probable cause.

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Okay.

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A police officer may stop a suspect
and pat down his outer garment

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provided that he or she has reasonable
suspicion,

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so this is not as high as probable
cause that the suspect is armed

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and dangerous.

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Third question you need to ask
yourself: If the search or seizure

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was unreasonable, 

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must the objects seized be excluded
from evidence?

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This is the core issue in a motion
to suppress.

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If the motion to suppress evidence
is successful, the evidence cannot

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be presented to the jury.

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In many cases, this will lead the
prosecutor to simply drop charges

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entirely,

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for instance, in drug possession
cases where drugs are excluded,

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or offer a very favorable plea bargain.

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Two weeks ago, we studied the notion
of exclusionary evidence and the

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fruit of the poisonous tree doctrine.

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So this is a quick recap of these
two connected doctrines.

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Remember, according to the exclusionary
rule, evidence obtained in violation

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of a suspect's constitutional rights
is usually inadmissible in a criminal

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prosecution.

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This was established for federal
cases in which the United States (was a party)

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as early as 1914 and extended to
states and local courts, so incorporated,

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in Mapp v Ohio in 1961.

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This rule is extremely important, okay,

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the exclusionary rule,
because it provides a powerful

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deterrent

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dissuasion against police violation
of constitutional rights.

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Obviously when you're a police officer,
you want to respect,

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okay, the Fourth Amendment and
all the other constitutional rights

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of the suspects, because if you don't,
the evidence recovered might be

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thrown out.

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Okay.

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Thanks to a motion to suppress
the derivative evidence or evidence

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that is discovered as the result
of the unlawfully seized items

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is considered fruit of the poisonous
tree and is also excluded from

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evidence.

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For instance, records of illegal
drugs transactions that are seized

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in the course of an unlawful search
will be inadmissible.

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However, any confession resulting
from the interrogation of individuals

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whose names are listed in the records
will also be excluded from evidence

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as fruit of the poisonous tree.

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So this is a true catastrophe for
your procedure.

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Despite the apparent strictness
of the exclusionary rule,

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the Supreme Court has created a
number of exceptions,

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and I'll give you a few of them,
the major ones.

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The good faith exemption means
that evidence may be admissible

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if the police acted in good faith,
meaning that officers acted in

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an objectively reasonable fashion
in seizing the evidence for instance.

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This occurred in Herring v the United
States in 2009, when a failure

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to update computer systems meant
that a police officer relied on

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a warrant which was out of date
to arrest and search a suspect.

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But actually the police officer
did find contraband on the suspect

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and wanted to bring him or her to trial.

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The contraband found during the
search was used as evidence in

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court and was found to be admissible
under the doctrine of good faith.

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Okay.

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Evidence may also be admissible
under the doctrine of inevitable

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discovery, where, if the unlawful
search had not occurred,

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the evidence would eventually have
been discovered lawfully.

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All in all, when a pretrial motion
is filed, the judge is required

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to decide on specific,
factual and legal issues related

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to the case.

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This decision may have a significant
impact on the final outcome.

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If a defendant's pretrial motion
is rejected and that he or she

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is found guilty at trial,
the issue raised in the pretrial

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motion may constitute grounds for
appeal.

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This is it for me.

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I am wishing you all the best in
your exams and I'm available to

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discuss all of this with you.

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If so, you wish.

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Have a lovely week and take care.