One of the most powerful tools that Birmingham criminal defense attorneys have to work with is the motion to suppress.
It's one of the primary reasons why you will hear legal ads admonishing you, “Don't Simply Plead Guilty!” even though many assume this is the only option in the face of a mountain of evidence against them.
A defense's motion to suppress, if granted by the judge, strips prosecutors of the right to use certain evidence against you in court, no matter how strong it may be. Police are bound by very strict laws regarding how they can collect evidence. When they don't follow the rules, it can be grounds to have the evidence barred from court.
In a lot of cases, this will prompt prosecutors to dismiss the charges. In other cases, particularly felonies, they may press on, but their proof is substantially weakened.
A recent example of how improper investigatory procedures can bolster a defense position is the case of State v. McKnight, reviewed recently by the Hawaii State Supreme Court. (Although this is an out-of-state case, the same general legal principles apply.)
Here, the defendant was arrested in 2006 on two felony counts: electronic enticement of a child in the first-degree and promoting child abuse in the third-degree. He was caught up in an undercover police sting, wherein a detective posed as a 15-year-old girl online. The defendant reportedly communicated with the “teen” on instant messenger, through e-mail, via cell phone and on his home phone. These communications reportedly involved numerous discussions of sexual activity, and the defendant also reportedly e-mailed sexual suggestive photographs of himself to the “girl.”
Eventually, the defendant reportedly conspired to meet the girl, going so far as to allegedly purchase her an electronic plane ticket. He was arrested at the airport.
The investigating officer reportedly advised the defendant of his Miranda rights and asked him to fill out a constitutional rights form. The defendant reportedly verbalized to the officer that he wanted to speak to an attorney, and on the rights form, answered “yes” to the question, “Do you want an attorney now?”
The investigator initially stopped the interview cold. He then requested a warrant to search his home. While the request was being processed, the investigator re-entered the interrogation room and proceeded to question the defendant, absent his lawyer. The defendant said he had changed his mind about giving a statement because he hadn't realized the severity of the crime. (This of course is all the more reason NOT to speak to investigators without a lawyer.)
Still, the defendant said several times he wanted to talk to his mother. The investigator said he couldn't promise anything.
Meanwhile, other officers conducted a search of the defendant's home and vehicle. They reportedly found plenty of evidence, but there was a problem: Due to a clerical error, the search warrant was improperly dated.
When the case went to trial, the circuit court granted the defense's motion to suppress any and all statements made by the defendant to investigators after he invoked his right to counsel. The court also suppressed all evidence connected to the wrongly-dated search warrant.
He was ultimately convicted of just one of those charges, for which he was sentenced to probation.
Both sides appealed, with the defendant arguing that the court erred in failing to inform the jury that the state had to prove that he used an electronic device to accomplish each element of the crime. The prosecution, meanwhile, argued that the court erred in suppressing the defendant's earlier statements because he had voluntarily waived his Miranda rights and that the agent's failure or refusal to contact an attorney for the defendant did not represent a constitutional violation. Prosecutors also challenged the suppression of search warrant evidence, on the grounds that the error was committed by the judge, not the agents, and that the public interest in obtaining evidence against those accused of crimes against children outweighed the “marginal benefit” of suppressing such evidence.
The appellate court affirmed the defendant's conviction and vacated the circuit court's suppression orders, finding the statement should not have been suppressed and that a clerical error was not strong enough basis upon which to suppress the evidence.
However, the state supreme court found that the defendant's statement to the investigator was obtained in violation of his constitutional rights because he did not “voluntarily, knowingly and intelligently” waive his right to an attorney. But the suppression of evidence based on the clerical error, it found, should not stand.
As such, the case was remanded back to the lower court for further consideration.
If you have questions about whether evidence in your case may be eligible for suppression, contact an experienced attorney.
Birmingham Criminal Defense Lawyer Steven Eversole can be reached at (866) 831-5292.
State v. Mcknight, Dec. 30, 2013, Hawaii Supreme Court