Suppressing Criminal Evidence

“Recalling my early days as a public defender, I had little idea how to translate my command of case law into successful pretrial motion practice. Oh, do I wish this book had been available then! While her book is geared to all levels of experience, it is indispensable to those new and newer to criminal defense. I’m now more than 30 years into this field, and found it very informative.”

— Tony Bornstein, NACDL, The Champion

“This book comes as close as one can to having a personal mentor without the physical body of another following you around whispering helpful tips in your ear. This book can guide the practitioner from the inception of a case through to cross-examination, stressing the importance of thinking ahead and always seeking as much information as is possible.”

— Tejas Bhatt, National Association of Public Defenders

“This is an excellent resource for criminal defense lawyers. Well-researched with many helpful sample motions and cross-examinations. I look forward to consulting this work in the years to come.”

— Kathleen Stilling

“A must-read for new criminal defense attorneys and a great refresher for seasoned veterans. An easy read and the sample motions are invaluable. My most prized book since law school!”

— Gillion Parham

When in Doubt, File the Motion!

Suppression litigation is an essential tool for criminal defense lawyers, but many defense lawyers are easily dissuaded from filing a motion when presented with a seemingly reasonable offer from the prosecution. This is the wrong approach. You never know what will happen once you file the motion. Maybe the police witness will be a no-show, resulting in the granting of the motion, the dismissal of the case, or a better plea offer.  Even if you lose the motion, you still will have an opportunity for discovery and cross-examining the officer, which will be of assistance at trial. Bottom line: Good things come to clients whose lawyers file the suppression motion. Deja Vishny’s Suppressing Criminal Evidence can help you litigate suppression issues more aggressively, more efficiently, and with greater success.

Law and Practice

Suppressing Criminal Evidence takes you through the suppression litigation process, step by step, from the initial client interview, to drafting the motion, to arguing at the hearing. In 13 chapters, this single-volume book covers the ground rules for suppression motions; Fourth Amendment searches and seizures; suppression of confessions and other statements; and suppression of eyewitness identifications. The text includes:

• In-depth legal analysis of the bedrock constitutional principles underlying suppression litigation.
• True-to- life examples of police encounters and other situations ripe for suppression litigation:
  Common fact scenarios; 80+pattern cross-examinations; and sample language to use in your argument to the court at the motion hearing.
• Current law, practice tools and tactics for handling developing areas of suppression litigation.
• Over 140 Practice Pointers – tips, shortcuts, cautionary advice and words of wisdom learned from the author’s decades of experience fighting to protect her clients’ rights.
• Dozens of sample forms, which you can modify to fit the facts of your case. The forms collection includes:
  • Motion to Suppress – Unlawful Entry onto Protected Curtilage
  • Motion to Suppress – Search Warrant Affidavit Lacks Probable Cause
  • Motion to Suppress – No Consent; Apparent Authority
  • Motion to Suppress – Search Incident to Arrest; Protective Sweep
  • Motion to Suppress – No Reasonable Suspicion for Stop or Pat Down
  • Motion to Suppress – Unlawful Inventory Search of Car
  • Motion to Suppress – Raw Marijuana, Dog Sniff, Extended Detention
  • Motion to Suppress – Evidence Seized From Facebook
  • Motion to Suppress – Invalid Miranda Waiver; No Interpreter
  • Motion to Suppress – Juvenile’s Statement, no Miranda
  • Motion to Suppress – Unlawful Arrest; Voluntariness; Miranda; Reid Method
  • Motion to Suppress Confession — Delay in Presentment (McNabb–Mallory)
  • Motion to Suppress – Statement by Probationer to P.O. or Therapist
  • Motion to Suppress – Show-up Identification
  • Motion to Suppress – Identification Unduly Prejudicial
  • Motion to Compel Discovery – Use of Cell Phone Tracking Device (Stingray)

REVISION 2 HIGHLIGHTS

The new edition of Suppressing Criminal Evidence contains new and expanded coverage of key suppression issues, including:

Race and Reasonable Suspicion (Chapter 5)

• Implicit bias and police perception of African-Americans
• Evidence of racism and legal arguments in support of suppression

Motor Vehicle Searches (Chapter 6)

• Challenging searches based on marijuana odor where marijuana is legal
• Inventory search: challenging right of vehicle occupants to remove personal property before impoundment and search

Special Needs Searches (Chapter 7)

• Appendix: Pandemics and the Fourth Amendment
• Blood draws in DUI cases
• Exigent circumstances, unconscious motorists, implied consent

Search and Seizure of Electronic Devices: Cell Phones (Chapter 8)

• Search incident to arrest
• Consent
• Other exceptions: plain view; inventory search; independent source/inevitable discovery
• Location tracking
• Historical cell site data
• Real-time cell phone tracking
• Other methods: cell site simulators and other secret tracking devices; cell tower dumps; Google data (geofence warrants)

8 New Forms

• Motion to Release Records from Juvenile File (Bellows)
• Motion for in camera Review of Confidential Records (Psych. Treatment)
• Amicus Brief: Reasonable Suspicion, Race, Implicit Bias
• Amicus Brief: Reasonable Suspicion, “High Crime” Area, “Reasonable Person” Standard
• Motion to Suppress Blood Test (Equal Protection Challenge to Implied Consent)
• Motion to Exclude Cell Phone Evidence (Warrantless Search – Riley)
• Motion to Suppress Evidence Obtained Pursuant to “Geofence” General Warrant
• Motion to Compel Discovery of Computer Programming Code

ABBREVIATED TABLE OF CONTENTS

Chapter 1 Early Steps in the Case
Chapter 2 Motion Practice
Fourth Amendment Searches and Seizures
Chapter 3 Fourth Amendment Primer
Chapter 4 Searches of the Home
Chapter 5 Probable Cause and Reasonable Suspicion: Arrests, Seizures, Stops and Frisks
Chapter 6 Motor Vehicle Searches
Chapter 7 “Special Needs” and Other Fourth Amendment Searches
Chapter 8 Search and Seizure of Electronic Devices
Confessions and Other Statements
Chapter 9 Police Interrogation Practices
Chapter 10 Litigating Miranda Rights
Chapter 11 Suppressing Involuntary Confessions
Chapter 12 Other Grounds for Suppressing Confessions
Other Evidence Subject to Suppression
Chapter 13 Eyewitness Identification

ABOUT THE AUTHOR

Deja Vishny is a criminal defense lawyer at the Wisconsin State Public Defender Office in Milwaukee, where she has practiced for almost 40 years. She specializes in representing clients and assisting other lawyers in the defense of homicides and false and coerced confession cases as well as organizing and providing training for criminal defense organizations and public defender agencies. She previously practiced with the Wisconsin State Public Defender where she headed the Homicide Practice Group and served as the Deputy Training Director.

Ms. Vishny has earned a reputation as an excellent trial lawyer. She is a past recipient of the Wisconsin Law Journal’s Women in the Law award; of the Wisconsin Criminal Defense Association’s David Niblick award, given to those who’ve made lifetime contributions to indigent defense in Wisconsin as well as a multiple occasion recipient of that organizations’s Hanson award given to lawyers who’ve obtained acquittals in homicide cases;

Ms. Vishny joined the faculty of the National Criminal Defense College in Macon, Georgia, in 1998, and regularly lectures at criminal defense and public defender seminars around the country. Thus far, she has given CLE presentations in 40 states, for a number of different organizations, including the National Association of Criminal Defense Lawyers; the American Academy of Psychiatry and the Law; the Naval School of Justice; and a class at Harvard Law School. Ms. Vishny also was a speaker at the joint International Bridges for Justice and Delhi Legal Services trial skills seminar in India. She joined the faculty at Marquette University Law School in 1991, where she is an adjunct professor, currently teaching trial advocacy.

Ms. Vishny has attended the Reid School on Interrogation and has published articles in The Champion and The Wisconsin Defender on trial practice and on cross-examining police interrogators and forensic pathologists. She co-chaired the false confession program at the inaugural session of the National Forensic College at Cardozo Law School in June 2014.

Ms. Vishny serves on the Board of Directors of the National Criminal Defense College and previously served on the boards of National Association of Criminal Defense Lawyers the State Bar of Wisconsin Criminal Law Section.

Ms. Vishny can be reached via her website: https://dejavishny.com/.