Illegal Stop? Challenge it!
No matter what state you live in, Federal Law controls whether or not a stop of a vehicle by police is legal. If the police stop a vehicle illegally, the evidence directly obtained from that illegal action cannot be used in court as admissible evidence.
Moreover, no matter what state a criminal or traffic ticket case is in, all criminal and traffic court defendants can challenge the legality of a vehicle stop separately from any other defense they may have. They should not fell bad about doing it either, because it is their Constitutional Right.
Here is how it works, and we have even made a Motion to Suppress Self Help Form for you to use in your own case.
|4th Amendment Background |
All Warrantless Searches and Seizures are “per se” Unreasonable under the 4th Amendment to the US Constitution, and therefore presumed unlawful. The government has the burden to prove a seizure or search was legal.(4)
Of course there are exceptions to this constitutional warrant requirement. Police are allowed to stop a vehicle without a warrant if they witness the car involved in a crime.
But the police are not allowed to pull people over for no reason. They are not allowed to pull vehicles over solely because they have a “suspicion” something is wrong. They cannot pull over a vehicle just to see if the unknown driver has a valid drivers license.
Why? Because there is no way for the Officer to Reasonably suspect a crime has taken place, or that the driver did it. The driver is presumed innocent in America, and per the Fourth Amendment, all warrant-less searches and seizures are presumed illegal.
Of course there are exceptions to that blanket rule.
But the police cannot just pull someone over, “detain” them, because they “think” that the person is a gang member. American Police are not allowed to stop a vehicle just because they think the driver is a criminal, or illegal immigrant.
Naturally, sometimes, the police arrest or pull people over illegally anyway. And sometimes, after an illegal arrest or detention, the police discover evidence of a crime they were previously unaware of. Surprise! “I found evidence!”. If that post stop “discovered” evidence becomes the basis for a criminal prosecution, the defendant should challenge the stop with a Motion to Suppress.
One of the foundational pillars of criminal defense work is this “Motion to Suppress” or “Suppression Motion”. Defense Attorneys use them to not only to get evidence excluded, but also to get evidence out in the open prior to trial.
If a Motion to Suppress is won by a defendant, the ruling usually leads to the exclusion of some or all of the prosecution’s evidence. It can mean the exclusion of Blood Alcohol Test Results, or the status of a person’s drivers license, or of the gun in the back seat. Thus, a successful Motion to Suppress can cause the death of a criminal prosecution.
When is a Vehicle Stop Illegal?
A vehicle stop is a “Detention” within the meaning of the 4th Amendment to the US Constitution. All warrantless Detentions are per se illegal under the 4th Amendment.
A Detention starts: “whenever a police officer accosts an individual and restrains his freedom to walk away,” or when an officer stops an individual because he suspects that person “may be personally involved in some criminal activity.”(1)
Generally, this means a detention of a driver occurs at the moment the driver realizes the police officer has their lights flashing and that they are no longer free to drive where they want.
In order to justify a warrantless detention “the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (a) some activity relating to crime has taken place or is occurring or about to occur, and (b) the person he intends to stop or detain is involved in that activity. (2)
Not only must the officer subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience, to suspect the same criminal activity and same involvement by the person in question.”(3)
The prosecution in a case – whether it be the police officer in traffic court or an Assistant District Attorney in a DUI case – has the legal burden to prove the Detention and Arrest were legal. The Defendant does not need to do anything but raise the issues and ask for a ruling from the judge.
If the judge denies the motion, a Defendant may appeal the denial in State Court, and if really ambitious, in Federal Court as well.
What Happens If a Stop is Ruled Illegal in Court?
The Defendant should argue that all evidence resulting from an illegal stop should be suppressed, which means excluded – thrown out – ignored. This includes officer’s observations about your drivers license, your own statements, your expired insurance card, should not be admitted as evidence.
How Does a Defendant Challenge an Illegal Stop?
The Detention or arrest can be challenged in any criminal or traffic court case. The challenge in made in open court, by making a “Motion” – or request to the Judge for a ruling on the subject. It can be made orally or in writing prior to trial.
The process will vary slightly from court to court. In California, Penal Code section 1538.5 controls the process.
In a misdemeanor case, such as a DUI, a CA “PC 1538.5 Motion”, as it is called by Criminal Defense Attorneys, is made by asking the judge at the Arraignment for a “1538.5″ hearing date. The judge normally will give a date and deadline for filing papers with the court clerk and prosecutor.
In some courts, the Motion must be filed with the court clerk first, and the court clerk chooses the date for the hearing.
Some judges, in some cases, will require a suppression motion hearing to take place the day before trial, or the morning before trial in a typical criminal case.
Can You Make the Motion to Suppress Yourself in a Traffic Ticket Case? Yes!
In a traffic court infraction case, it is unlikely that the court will give you a separate hearing date. So you will have to make the motion at the very start of a court trial.
When your case is called, simply tell the judge: “Your honor, I would like to make a pretrial motion to suppress under penal code section 1538.5. The stop was illegal. It is the government’s burden to prove it was legal. I ask for hearing and ruling on that issue prior to trial.”
A defendant can testify at a hearing on a Motion to Suppress if they choose, but it is almost never a good idea.
It is best to make it in writing, and to get a ruling on the record in court. Usually this means drafting the Motion (including a notice of motion) and filing it with the court clerk at least 10 court dates in advance of the date you want the judge to consider it.
In most courts, you can file a motion to suppress in court by telling the judge you have a motion to file, and by handing it to the courtroom clerk.
Extra copies should be made and have to be delivered to the prosecutor, or in traffic court the police officer who is testifying. Everyone involved must have notice of your motion and a copy.
Check your court’s local rules on criminal or traffic court filings to be sure the clerk does not give you a hard time.
PRACTICE TIPS FOR MOTION TO SUPPRESS
For purposes of a Motion to Suppress Evidence Following Illegal Stop, you want the Detention to begin as soon as possible, because the sooner the detention starts, the less information the officer will have available to justify the stop.
A Motion to Suppress is a very good defense option to a traffic citation where the citation only lists a “proof of insurance” violation and does not list a reason for the stop. Or use it in cases where the citation on list a drivers license violation, like driving without a valid drivers license under Vehicle Code 12500(a). In such cases, it should be argued that whatever the reason given for the stop in court, it was made up, invented.
A detention can begin as soon as the officer turns on his/her patrol lights on behind a vehicle, or as soon as the driver believes he/she is not longer free to drive wherever they want.
At the moment the detention begins, the officer must have the required elements for a legal detention. What happens after the detention is irrelevant to the question of whether or not the detention is legal to start with.
Finally, when making a final argument on a Motion to Suppress, it is usually best to start out with: “Your honor, the government did not meet its burden to prove that the stop was legal . . . ”
If you lose a Motion to Suppress, you can file an Appeal after the hearing or after the case is over. There is no harm in doing the Motion and losing, and because it preserves issues for appeal, many attorney will “run the Motion” as a matter of course on nearly all cases.
Questions? Leave a Comment. We try to answer them all.
RECOMMENDED LEGAL SELF HELP FORM:
1. In re Tony C., 21 Cal. 3d 888 at p. 895; Terry v. Ohio, 392 U.S. 1, at p. 16;
2. People v. Superior Court (Kiefer), 3 Cal. 3d at p. 827, In re Tony C. 21 Cal. 3d 888 at p. 893; People v. Loewen (1983) 35 Cal. 3d 117, 123;
4. People v. Martino, (1985) 166 Cal.App.3d 777; People v. Williams (1988) 45 Cal.3d 1268.