An Appellate Perspective On 4th Amendment Issues

As part of clinic class time yesterday we got to hear from an experienced criminal appeals attorney who had the following thoughts on how criminal defense trial lawyers should think about 4th Amendment issues (illegal searches and seizures):

1. Preserve issues for appeal. If it's not preserved at trial, it's waived. So your goal at trial is to make sure you raise issues, even if you know you'll lose, in order to preserve them for appeal. Suppression hearings are almost always a good idea. In most jurisdictions, you have to raise the precise issue that will be appealed, so raise lots of issues, don't just say “hey, I think there's a 4th Amendment violation here.” You don't want to raise frivolous issues and or waste the court's time or annoy the judge, but if in doubt, err on side of raising 4th Amend. issues.

2. If there's no warrant, you've got a 4th Amendment issue. Most of our cases won't have warrants b/c of all the exceptions to the warrant requirement. Remember: The rule is that a warrant is required; anything less is either an exception or unconstitutional. If there's no warrant, the burden is on the Gov't to explain why the search was constitutional. Be aggressive; they didn't have what they were supposed to have, so make them prove what they did was legal.

3. Check the paperwork. If there is a warrant, check it. Check the affadavits. Look for mistakes. The Leon good faith exception is bad for defense attorneys, but the officer still has to rely in objective good faith and if the warrant is facially deficient, objective good faith is not possible—it's the officer's mistake. See Groh v. Ramirez (U.S. 2004).

4. Always go back to the very beginning of the story—the police encounter that got you here. A lot of police encounters that lead to evidence you want to suppress are the result of a chain of actions, any one of which may have been illegal. Too often young lawyers just look at last step when really the first step may be more helpful (invalid). You only need one weak link; gov't has to win every single one but you only have to show one part of its case invalid to win.

Good stuff. Mostly review, but still all good to keep in mind. I love this clinic.

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