“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. It may be cliché, but good things come to clients whose lawyers are aggressive litigators. Deja Vishny’s Suppressing Criminal Evidence (James Publishing 2016) 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 12 chapters, this single-volume book covers the ground rules for suppression motions; Fourth Amendment searches and seizures; and suppression of confessions and other statements. In addition to a detailed analysis of the bedrock constitutional principles giving rise to suppression, you receive:
- Thorough coverage of a broad range of potential suppression issues, including those arising out of searches in the home; motor vehicle searches; searches of electronic devices; arrests, stops and seizures; violation of Miranda rights; and alleged confessions.
- True-to-life examples of suppression litigation: Common fact scenarios; pattern cross-examinations; and sample language to use in your argument to the court.
- Practice-tested forms and Practice Points gleaned from the Author’s experience.
40 Sample Forms
The forms collection consists of 33 motions to suppress and a dozen other forms for use during discovery and your preliminary investigation of the case. The forms are made available to you via an emailed zip file, so you can quickly and easily modify them to fit the facts of your case. A partial list of the forms includes:
- Motion to Compel Production of Grand Jury Transcript
- Discovery Demands [State Court] [Federal Court]
- Motion to Suppress Seized Evidence – Unlawful Entry onto Protected Curtilage
- 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 Search of Car Incident to Arrest (Gant)
- Motion to Suppress: Unlawful Inventory Search of Car
- Motion to Suppress: Raw Marijuana, Dog Sniff, Extended Detention
- Motion to Suppress: School Search of Juvenile
- Motion to Suppress: Staleness, Particularity; Franks Motion
- Motion to Suppress Evidence From Facebook
- Motion to Compel Discovery of Use of Cell Phone Tracking Device (Stingray)
- Motion to Suppress Juvenile’s Statement – No Miranda
- Motion to Suppress: Unlawful Arrest; Voluntariness; Miranda; Reid Method
- Motion to Suppress Confession Due to Delay in Presentment (McNabb-Mallory)
80 Pattern Cross-Examinations
Rely on these pattern cross-examinations to prepare for motion hearings. The pattern questions will help you challenge the admission of unlawfully obtained evidence in the context of dozens of different fact scenarios, including, for example:
- A warrant search of a home based on an untruthful probable cause statement
- A warrantless search of a home based on: alleged consent; search incident to arrest; the plain view doctrine; community caretaker doctrine; or imminent destruction of evidence
- Inventory searches
- Border searches
- Blood draws in DUI cases
- Search of a cell phone incident to arrest
- A Terry search in a “high crime” neighborhood
- A vehicle stop based on race
- A vehicle stop based on an anonymous tip
- Search of a vehicle based on the odor of marijuana
- The arresting officer’s alleged reliance on the public safety exception to Miranda
- Questioning of a juvenile at school
- Lengthy and multiple interrogations when your client is held incommunicado and officers create an atmosphere of intimidation
- Coercion of a vulnerable defendant resulting in an alleged confession
100 Practice Pointers
Author Deja Vishny has devoted her career to defending the rights of the accused. She shares the knowledge, tips, warnings and wisdom she has acquired over 35 years in the trenches in the Practice Points found in every chapter. Here is a small sample:
Practice Point: Demonstrations in Dickerson hearings
When the police officer testifies that he could immediately tell the object he recovered was contraband, you have nothing to lose by trying a demonstration to challenge the officer’s credibility. Examine the evidence before the motion hearing and try covering it with an item that was of a similar texture to your client’s clothing. Assuming that it’s impossible to tell what the object was without manipulating it, ask the judge to feel the object inside clothing to show that it’s not possible to tell what the items was. Another tactic might be to take one or more similar, but lawful, items that feel the same as the seized object and ask the officer to conduct a pat down to see if he can identify the object as contraband before he removes it from the clothing and looks it over. If he fails, you may be on your way to winning the hearing.
Practice Point: Race and Fourth Amendment litigation
When you believe race is the true reason for a stop, point out in your cross-examination that race was one of the factors in the officer’s decision to stop your client. The officer will readily admit this, since he usually has a description of a suspect who matches your client’s race or ethnicity. Then, point out to the judge that the other factors leading to the stop (e.g., walking through an alley or having one’s hands inside coat pockets) were all innocuous behaviors that should not have given police any cause for suspecting your client of criminal involvement.
Practice Point: Listen to the dispatch tape
When you have a case where an anonymous informant called the police to report a possible intoxicated driver, be sure to listen to the dispatch tape to hear exactly what information the anonymous caller gave. Most departments preserve these tapes for a limited period of time; if you don’t get the tape automatically as part of the discovery, get an order from the court early in the case requiring the department to preserve the tape and the prosecutor to provide it to you. Giving specific information about the car may not enough to justify the stop. If the caller did not specify that he was witnessing intoxicated driving as it occurred, and failed to give details about why he thought the driver was under the influence, you have a good issue to argue. Listen for language like the caller “believes” the driver is drunk, without specifics to substantiate that belief.
Practice Point: Challenging familial DNA
A new law enforcement technique involves the use of familial DNA, which is not an exact match, but is a “near miss,” to develop a suspect in cases in which the police have no leads. Sometimes law enforcement will locate the “near miss” suspect and collect his DNA from an item, such as discarded food, and see if it matches DNA from a crime scene. For an excellent discussion of this technique, and arguments against its use, see Erin Murphy, “Relative Doubt: Familial Searches of DNA Databases,” 109 Mich. L. Rev. 291 (Dec. 2010). The King decision specifically approved of the constitutionality of Maryland’s DNA statute because the DNA use was restricted to identifying the arrested individual in future DNA matches. The Maryland law bars the use of familial DNA. Not all states do, however. If familial DNA is used to charge your client, read King closely and use its rationale as a basis for a motion to suppress.
Practice Point: Object to admission of expert testimony as unreliable
Evidence based on historical cell tower data is not wholly reliable and much less can be gleaned from historical cell tower data than law enforcement claims. If the prosecution tries to call a so-called expert to testify that your client was located in a particular place when a crime was committed, oppose the admissibility of this evidence under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). You will probably need to hire an expert to consult with you and testify about the problems with and limitations of such data. A good article to read for starters is Aaron Blank, “The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone,” XVIII RICH. J.L. & TECH. 3.
Practice Point: Ask about stingrays and other secret tracking devices
It is entirely possible that law enforcement tracked your client’s location using technology known as a “stingray,” and you have not been given evidence of its use in discovery. A stingray is a device police can use to mimic the actions of a cell tower to precisely locate a cell phone. Be sure to ask the prosecutor if a stingray was used in your case, and file a motion to disclose its use so you can move to suppress the evidence. The FBI refuses to allow local law enforcement to disclose the use of a stingray, and prosecutors might choose to dismiss a case rather than reveal the use of this technology. Before litigating this issue, research the latest developments in stingray and secrecy litigation because these cases are popping up all over the country.
Practice Point: Shaping the record
During your argument to the court, ask the judge to make specific findings of fact about what your client did and did not understand about his Miranda rights before he waived them and talked to the police. Appellate courts generally do not disturb the findings of fact made by trial courts. If a favorable ruling is appealed by the prosecution, you will have a much better chance of prevailing if a good factual record is made by the court.