Moving to Suppress

Moving to Suppress

Each check taught so far in this chapter, from the neutral magistrate and oath through probable cause, particular description, and execution, matters to a defendant only if someone raises it before the evidence reaches the jury. The vehicle is the motion to suppress. Under Rule 41(h), a defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.¹ Filing in the trial court puts the question before the judge who will preside over the case, at a point when the ruling can still decide whether the evidence is used at all. The timing also answers a feature of how warrants issue. The magistrate hears only the officer's side, because the person whose property is to be searched has no chance to contest the application, so the suppression hearing is the first occasion on which the defendant can argue that the warrant issued without probable cause.

The relief the motion seeks is exclusion. The Supreme Court held in Weeks v. United States that the Fourth Amendment barred the use in federal prosecutions of evidence secured through an illegal search and seizure, and Mapp v. Ohio later carried the same bar into state prosecutions.² The remedy exists because a ban on unreasonable searches would mean little if the fruits could still be offered in evidence against the person searched.³ How far the exclusionary rule reaches belongs to a broader study of the rule itself. For a warrant problem, the motion can end in two ways that earlier sections already prepared, and which one results depends on where the defect sits.

The first outcome follows a defect on the face of the warrant. In Groh v. Ramirez the agent's application described the weapons and purchase records sought, but the warrant form named the family's house in the space for the things to be seized, and the application was neither attached to the warrant nor incorporated in it.⁴ The Court held that the Fourth Amendment requires the warrant itself, and not the application, to describe the things to be seized, so the search was unconstitutional.⁵ Groh arose as a civil damages action rather than a suppression motion, but its reasoning is what a suppression court applies: a search under a warrant whose only defect is a lack of particularity is treated like a warrantless search, and the presumption that a warrantless search is unreasonable applies with equal force.⁶ The mechanism is that unless the items are set out in the warrant, nothing in writing shows the magistrate found probable cause for every item the application mentioned, and any restraint the officers showed was imposed by the agents themselves instead of by a judicial officer.⁷

The second outcome follows a warrant that is complete on its face and supported by a sufficient affidavit. In Illinois v. Gates an anonymous letter predicted a trip to Florida, the car the couple would drive back, and drugs kept in their basement, and the police verified many of those details before the warrant issued. The Court held that the Illinois courts erred in suppressing the evidence, because the corroborated letter gave the magistrate a substantial basis for finding a fair probability that drugs would be found.⁸ A reviewing court gives the magistrate's finding great deference and asks only whether that substantial basis existed.⁹

What separates the two cases is the location of the alleged defect. Groh turned on the face of the warrant, where the strength of the application is beside the point because the Fourth Amendment asks the warrant itself to carry the description. Gates turned on the affidavit behind a warrant that was complete, where the court's only task was to check the magistrate's judgment for a substantial basis. The sensible order on a suppression problem is therefore to read the warrant first and the affidavit second, because a detailed affidavit does not cure a warrant that fails to describe the items to be seized, while a facially complete warrant survives so long as the affidavit supplied the substantial basis.

One procedural limit applies to warrants issued by telephone or other reliable electronic means. Rule 4.1(c) provides that, absent a finding of bad faith, evidence obtained from a warrant issued under that rule is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances.¹⁰ The limit follows from what the Fourth Amendment requires of the process. The central safeguard is a neutral magistrate's judgment made in advance, in place of an after-the-event justification by the officers, and a magistrate who evaluates an electronic request still supplies that judgment.¹¹ The rule reaches only the manner of issuance, so a warrant obtained electronically remains open to challenge for lack of probable cause or lack of particularity.

A successful motion does not always end the inquiry. Groh itself described the warrant as so obviously deficient that no reasonable officer could have believed it valid, and it distinguished United States v. Leon on that ground.¹² Whether evidence from a defective warrant can still be used when officers relied on it reasonably is the subject of the next section.