Motions to Suppress and the Problem of “Taking with the Case” in Criminal Case
What do you want to suppress?
· Evidence
- physical, identifications
· Verbal Statements
- of defendant, including written/taped
· Illegally Obtained and Legally Inadmissible Standards
- violates Constitution/statute/rule
When do you move to suppress?
· Rule 24.05: “Requests that evidence be suppressed shall be raised by motion before trial; however, the court may in its discretion entertain a motion to suppress evidence at any time during trial.”
· Section 542.296.3, RSMo 2016 (search/seizure):
The motion shall be made before the commencement of the trial of the moving party on the charge arising out of the seizure unless he [or she] was unaware of the grounds or had no opportunity to do so before the trial. In that event the motion may be made during the trial. However, the trial judge may in his [or her] discretion entertain a motion any time during trial.
· Section 542.296.2 (search/seizure): The motion shall be in writing.
· Section 542.296.5:
The motion to suppress [physical evidence] may be based upon any one or more of the following grounds:
(1) That the search and seizure were made without warrant and without lawful authority;
(2) That the warrant was improper upon its face or was illegally issued, including the issuance of a warrant without proper showing of probable cause;
(3) That the property seized was not that described in the warrant and that the officer was not otherwise lawfully privileged to seize the same;
(4) That the warrant was illegally executed by the officer;
(5) That in any other manner the search and seizure violated the rights of the movant under Section 15 of Article I of the Constitution of Missouri, or the fourth and fourteenth amendments of the Constitution of the United States.
· Electronic data creates unique challenges for traditional analysis of a search warrant. Haley Amster and Brett Diehl, Against Geofences, 74 Stan. L. Rev. 385 (April 16, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835508 (the framework for geofence warrants); In re Search Warrant Application for Geofence, 497 F.Supp.3d 345 (N.D. Ill. E.D. 2020) (Fourth Amendment analysis applies).
- In re Search of Records, Information, and Data Associated with 14 Email Addresses Controlled by Google, LLC, 438 F. Supp. 3d 771 (E.D. Mich. 2020) (search of all emails); In re Search Warrant No. 5165 470 F. Supp. 3d 715 (E.D. Ky. 2020) (search warrant request for biometric information was overbroad); State v. Bales, 630 S.W.3d 754 (Mo. banc 2021) (seizure of cell phone at a different location was not saved by “good faith” exception); People v. McCavitt, 185 N.E.3d 1192 (Ill. 2021) (scope and time limit of search of computer).
- In general, electronic data and telephone conversations are protected. In addition, a person has a “reasonable expectation of privacy in the whole of their physical movements.” Carpenter v. U.S., 138 S. Ct. 2206, 2210 (2018). Also, since 2014, § 15 of Article I of the Missouri Constitution provides as follows: “That the people shall be secure in their persons, papers, homes, effects, and electronic communications and data, from unreasonable searches and seizures.”
- Federal statutes (e.g., Stored Communications Act) discuss the ability of a state court to issue a warrant for records in another state. Hubbard v. MySpace, Inc., 788 F. Supp. 2d 319 (N.Y.S.D. 2011). The Hubbard court determined that the procedural limitations under Federal Rule of Criminal Procedure 41(b) did not deprive the state judge of authority to issue a warrant for records in another state. Id. See also § 351.609, RSMo 2016, adopting SCA.
- Section 542.286, RSMo 2016, limits the territorial reach of search warrants. This section provides as follows:
...1. A warrant to search a person or any movable thing may be executed in any part of the state where the person or thing is found if, subsequent to
