Introduction. Even if the evidence in a case is overwhelming, the gathering of the evidence can often be challenged under constitutional grounds with motions to suppress. If successful, the State’s case can be eviscerated. Knowing what to look for in the factual basis of a criminal charge is the key to a successful pretrial defense. Initial analysis of governmental conduct in the context of criminal charges involves three basic issues:
• Has there been a seizure?
• Has there been a search?
• Has there been a statement?
If the answer to any of these issues is yes, the inquiry becomes whether inculpatory evidence, either testimonial or physical, has been gathered as a result. Pretrial motion practice addresses the issue as to whether that evidence has been obtained illegally and can be barred from trial. Please note these issues are just the tip of the iceberg in motion practice but set out the most basic and potentially successful attacks.
The Constitutional Intrusion. In order to suppress evidence, there has to be a governmental violation of a constitutional right. To address this, a motion must be generated alleging some type of action which articulates a claim of a depravation of a specific right, either of the person or of property. The motion will typically find its basis in the Fourth or Fifth Amendment of the United States Constitution.
Person. There are two types of seizures of the person which evoke constitutional protections: an investigatory stop and an arrest. A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that they were not free to leave.1 In an analysis of a person’s encounter with police or other government agents, the nature of the interaction must be first be identified as either a nonconsensual or consensual encounter.2
Police-civilian encounters have been categorized into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, also known as Terry stops, which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) encounters involving no coercion or detention and thus do not implicate Fourth Amendment interests.3
The first tier involves an arrest, which must be supported by probable cause.4 Probable cause exists when the facts and circumstances known by the arresting officer are sufficient to warrant a reasonable person’s belief that the arrested individual has committed an offense.5 The next tier of encounter involves a temporary investigative seizure, also known as a Terry stop. An officer may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion of criminal activity, and such suspicion amounts to more than a mere hunch.6 The final tier involves those encounters which are consensual. These encounters involve no coercion or detention and therefore do not involve a seizure.7
Consensual encounters do not implicate the Fourth of Fifth Amendments. If the encounter is not consensual, a determination must be made as to whether the person was detained or in custody and to what extent the detention or custody extended. This distinction is especially important where a statement is in issue. While all arrests entail taking a person into custody, one can be in custody even while not having been arrested. Simply being lawfully detained, such as an investigative stop, can be sufficient to meet the custody requirement to challenge a statement.
Automobile. Traffic stops are seizures under the Fourth Amendment. Since they are less like formal arrests and more like investigative detentions, the reasonableness of a traffic stop is gauged by the standard of Terry. An investigative traffic stop must be temporary and last no longer than necessary to effectuate the purpose of the stop. The reasonableness of the stop’s duration is linked to the reason for the stop.8
Warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions.9 The Carroll Doctrine holds that warrantless searches are per se unreasonable in the absence of exigent circumstances.10 The “automobile exception” looks to the exigency which confronts police in connection with searching vehicles where the opportunity to search is fleeting since a car is readily movable.11 However, there are limitations upon this exception - the word automobile is not a talisman in whose presence the Fourth Amendment fades away and disappears.12
Building, House Trailer, Watercraft, Aircraft, Motor Vehicle, Railroad Car. Searches and seizures inside a habitable or storage enclosure without a warrant are presumptively unreasonable. This presumption may be overcome in certain circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness. Accordingly, the warrant requirement is subject to certain reasonable exceptions.13 Similar to the automobile exception, where the exigencies of the situation make the needs of law enforcement compelling a warrantless search is objectively reasonable under the Fourth Amendment.14
Involuntary Police Contact. Once police contact has been determined to be involuntary, the circumstances of the contact will drive the analysis of Constitutionality. Illinois has statutorily defined involuntary police contact in two ways - detention (stop and frisk)15 and arrest (custody).16 The Illinois and United States Constitutions have set out the limits of legal (constitutional) police contact with individuals.17 The following is analysis of the significant areas of inquiry.
Articulable Suspicion and Scope of Frisk. Police have a right to investigate possible criminal involvement of a person, but there are strict limitations on the investigation. A pat-down search and seizure is not constitutionally permissible where there is no reasonable belief that person involved is involved in any criminal activity or is armed or dangerous.18 Before a police officer may place a hand on the person of a person in search of anything, the officer must have constitutionally adequate reasonable grounds for doing so and, in case of self-protective search for weapons, the officer must be able to point to particular facts from which he reasonably inferred that person searched was armed and dangerous.19
Probable Cause. Seizures must be based on probable cause. Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest. The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the reasonableness requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule.20
Warrant. Warrantless searches and seizures are presumed to be unreasonable and in violation of the Fourth Amendment. This presumption may be overcome where the exigencies of the situation make a warrantless search objectively reasonable. Among the exigent circumstances which justify a warrantless search is the need to prevent the imminent destruction of evidence. However, police may not rely on the exigent circumstances doctrine where they created or manufactured the exigency in the first place. Thus, a warrantless search is permitted to prevent the destruction of evidence only if the police are responding to an unanticipated exigency and not to an exigency which they created.21 Probable cause is required for issuance of a search warrant. Probable cause exists if the totality of the facts and circumstances known to the affiant are sufficient to warrant a person of reasonable caution to believe that an offense occurred and the evidence of the offense is at the location to be searched. There must be an established nexus between the criminal offense, the items to be seized, and the place to be searched. Reasonable inferences may be drawn to establish the nexus. Direct information is not necessary.22
Plain View. The plain-view exception to the Fourth Amendment’s warrant requirement allows a police officer to seize an object without a warrant if the officer is lawfully located in the place where he observed the object, the object is in plain view, and the object’s incriminating nature is immediately apparent. The requirement that an item’s criminal nature be immediately apparent is the equivalent of probable cause.23
Inventory. The threshold issue in considering whether the police have conducted a valid inventory search incident to a tow of a vehicle is whether impoundment of the vehicle was proper. Impoundments may be in furtherance of public safety or community caretaking functions, such as the removal of damaged or disabled vehicles.24 A valid inventory search requires that: (1) the vehicle is lawfully impounded; (2) the purpose of the search is to protect the owner’s property, protect the police from claims of lost, stolen, and vandalized property, or guard the police from danger; and (3) the search is conducted in good faith pursuant to reasonable standardized police procedures, not as a pretext for an investigatory search.25
Search Incident to Arrest. The search incident to arrest doctrine creates an exception to the warrant requirement for items discovered on an arrestee’s person or in the area within his immediate control. The search may not extend beyond defendant’s person and area from which he might have obtained either weapon or something that could have been used as evidence against him.26 A search of items found on the person of an arrestee is reasonable even where there is no concern that the particular arrestee is armed or may attempt to destroy evidence.27 An arrestee’s vehicle may be searched incident to the arrest only if the suspect has not been secured and is close enough to the vehicle to reach the passenger compartment.28 An independent exception permits the search of an arrestee’s vehicle where it is reasonable to believe that the vehicle contains evidence that is relevant to the crime of arrest.29
Legitimate Expectation of Privacy. Just because someone is involved in a search or seizure arising out of some type of incident does not mean they have legal authority to contest the legality of the government action as a result. Rights attach to the person, not the incident. As a result, to assert a violation of a right, it must be shown the right attaches to the person asserting it. Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of their Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.30
Courts no longer use the rubric of standing when analyzing Fourth Amendment claims. Instead, the relevant inquiry is whether the person claiming the protections of the Fourth Amendment had a legitimate expectation of privacy in the area searched. Factors relevant in determining whether a legitimate expectation of privacy exists include the individual’s ownership or possessory interest in the property; prior use of the property; ability to control or exclude others’ use of the property; and subjective expectation of privacy. The defendant challenging a search has the burden of establishing that they had a legitimate expectation of privacy in the searched property.31
The Impingement upon Rights. So, when exactly does the Fourth Amendment kick in? As previously indicated, an officer stepping up to a person and having a chat is not a governmental impingement on one’s rights. Some type of detention or seizure is necessary.
Seizure. A person is seized or detained only when, by means of physical force or a show of authority, their freedom of movement is restrained. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.32 As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.33
A person has been seized or detained within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure or detention, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.34
Stop and Frisk. A police officer may in appropriate circumstances and in appropriate manner approach person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. In justifying a particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. These facts must be judged against objective standard of whether facts available to officer at moment of seizure or search would warrant a man of reasonable caution to believe that action taken was appropriate. Intrusions upon constitutionally guaranteed rights must be based on more than inarticulate hunches, and simple good faith on part of an officer is not enough. A dual inquiry is necessary for deciding whether an officer’s investigative detention is reasonable: (1) whether the officer’s action was justified at its inception and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.35
If there is a reasonable basis to believe that the citizen is armed and dangerous, the officer may conduct a pat-down search to determine if the citizen possesses a weapon. Terry is violated by a search which goes beyond the scope necessary to determine if the suspect is armed.36
A Terry stop must be justified at its inception. In addition, a police officer’s actions thereafter must be reasonably related in scope and duration to the circumstances that warranted the stop in the first place. A Terry stop should last no longer than is necessary to effectuate the purpose of the stop. The State bears the burden of showing that the Terry stop was limited in scope and duration.37
Arrest. An arrest involves three elements: authority to arrest, intention of the officer and the understanding of arrestee, and restraint of the person. The test of arrestee’s understanding is not what the arrestee subjectively thought, but what a reasonable person, innocent of any crime, would have thought had he been in arrestee’s shoes.38 An arrest is made by an actual restraint of the person or by such person’s submission to police custody.39 The essence of an arrest is a restriction of the right of locomotion or a restraint of the person.40
A person is lawfully arrested when police officers (1) have a warrant commanding that such person be arrested, or (2) have reasonable grounds to believe that a warrant for the person’s arrest has been issued in the state or in another jurisdiction, or (3) have reasonable grounds to believe that the person is committing or has committed an offense.41
Factors to be considered in determining whether an arrest has occurred include: (1) time, place, length, mood and mode of encounter between defendant and police; (2) number of police officers present; (3) any indicia of formal arrest or restraint, such as use of handcuffs or drawing of guns; (4) intention of officers; (5) subjective belief or understanding of the defendant; (6) whether defendant was told he could refuse to accompany police; (7) whether defendant was transported in a police car; (8) whether defendant was told he was free to leave; (9) whether defendant was told he was under arrest; and (10) the language used by officers.42
Custody. For a number of reasons, not the least of which is interrogation, the question of whether a person is in custody must be carefully analyzed. Arrest and custody are not synonymous. Custody is more far reaching. Statements obtained from an individual while in government custody, without full warning of constitutional rights, are inadmissible as having been obtained in violation of the Fifth Amendment privilege against self-incrimination.43 To determine whether police have taken a person into custody, the trial court must decide whether a reasonable person in the defendant’s circumstances would have felt he or she was not at liberty to terminate the interrogation and leave.44 The court should consider “(1) the location, time, length, mood, and mode of the questioning; (2) the number of police officers present during the interrogation; (3) the presence or absence of family and friends of the individual; (4) any indicia of a formal arrest procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting; (5) the manner by which the individual arrived at the place of questioning; and (6) the age, intelligence, and mental makeup of the accused.45
The determination of whether an interrogation is custodial should focus on all of the circumstances surrounding the questioning, such as location, time, length, mood and mode of interrogation, the number of police present, the presence or absence of family and friends of the accused, any indicia of formal arrest or evidence of restraint, the intentions of the officers, the extent of knowledge of the officers and focus of their investigation, and the age, intelligence, and mental makeup of the accused. After reviewing these factors, the court must make an objective determination as to what a reasonable man, innocent of any crime, would have thought had he been in defendant’s shoes.46
Miranda. The determination of whether a person is in custody for Miranda purpose involves two inquiries: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.47 When examining the circumstances surrounding the interrogation, courts should consider the following factors: the location, time, length, mood, and mode of the interrogation; the number of police officers present; the presence or absence of the family and friends of the accused; any indicia of formal arrest; and the age, intelligence and mental makeup of the accused. With respect to the latter inquiry, the accepted test is what a reasonable person, innocent of any crime, would have thought had he or she been in the defendant’s shoes.48 Additionally, the mere fact that an accused is not free to leave during a traffic stop or an investigation does not mean that a defendant is in custody for Miranda purposes.49 The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. The interrogating officer’s subjective views on whether the individual is a suspect are relevant only if conveyed by word or deed to the individual.50
Conclusion. Once a constitutional violation of rights is identified, the next step is challenging the violation in court with the appropriate motion. Motions to quash arrest and suppress evidence, searches and statements are not only effective tools for positioning a case for trial, but are extraordinarily effective negotiating tools. The ultimate disposition of a criminal case is significantly influenced by pretrial motion practice. It is a litigation opportunity that should not be allowed to pass.
1. United States v. Mendenhall, 446 U.S. 544 (1980).
2. People v. Murray, 137 Ill.2d 382 (1990).
3. People v. Luedemann, 222 Ill. 2d 530 (2006).
4. People v. Murray, 137 Ill.2d 382 (1990).
5. People v. Tisler, 103 Ill.2d 226 (1984).
6. Terry v. Ohio, 392 U.S. 1 (1968).
7. People v. Murray, 137 Ill.2d 382 (1990).
8. Rodriguez v. United States --U.S--, 135 S.Ct. 1609 (2015).
9. People v. McGee, 268 Ill.App.3d 32 (2nd Dist. 1994).
10. Carroll v. United States, 267 U.S. 132 (1925).
11. Chambers v. Maroney 399 U.S. 42 (1970).
12. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
13. Brigham City v. Stuart, 547 U.S. 398 (2006).
14. Mincey v. Arizona, 437 U.S. 385 (1978).
15. 725 ILCS 5/107-14 (temporary questioning without arrest).
16. 725 ILCS 5/108-1.01 (search during temporary questioning).
17. IL Const. Art. 1, §6; United States Constitution Amendment IV.
18. Ybarra v. Illinois, 444 U.S. 85 (1980).
19. Sibron v. New York, 392 U.S. 40 (1968).
20. Dunaway v. New York, 442 U.S. 200 (1979).
21. Kentucky v. King, 563 U.S. 452 (2011).
22. People v. Rojas, 2013 IL App (1st) 113780.
23. People v. Garcia, 2012 IL App (1st) 102940.
24. People v. Nash, 409 Ill.App.3d 342 (2nd Dist. 2011).
25. People v. Spencer, 408 Ill.App.3d 1 (1st Dist. 2011).
26. Arizona v. Gant, 556 U.S. 332 (2009).
27. United States v. Robinson, 414 U.S. 218 (1973).
28. Arizona v. Gant, 556 U.S. 332 (2009).
29. Riley v. California; U.S. v. Wurie , --U.S.--, 134 S.Ct. 2473 (2014).
30. Rakas v. Illinois, 439 U.S. 128 (1978).
31. People v. Johnson, 237 Ill.2d 81 (2010).
32. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
33. United States v. Mendenhall, 446 U.S. 544 (1980).
34. Dunaway v. New York, 442 U.S. 200 (1979).
35. Terry v. Ohio, 392 U.S. 1 (1968).
36. People v. Kowalski, 2011 IL App (2d) 100237.
37. People v. Brown, 343 Ill.App.3d 617 (2003).
38. People v. Fulton, 68 Ill.App.3d 915 (1st Dist. 1979).
39. People v. Scarpelli, 82 Ill.App.3d 689 (2nd Dist, 1980).
40. People v. Jacobs, 67 Ill.App.3d 447 (3rd Dist. 1979).
41. People v. Wead, 363 Ill.App.3d 121 (1st Dist.2005).
42. People v. Jackson, 348 Ill.App.3d 719 (1st Dist.2004).
43. Miranda v. Arizona, 384 U.S. 436 (1966).
44. People v. Braggs, 209 Ill.2d 492 (2003).
45. People v. Slater, 228 Ill.2d 137 (2008).
46. People v. Brown, 136 Ill.2d 116 (1991).
47. People v. Jeffers, 365 Ill.App.3d 422 (2nd Dist. 2006).
48. People v. Braggs, 209 Ill.2d 492 (2003).
49. Berkemer v. McCarty, 468 U.S. 420 (1984).
50. Stansbury v. California, 511 U.S. 318 (1994).
Wayne Brucar is currently a Supervising Assistant at the DuPage County Public Defender’s Office. He previously engaged in the private practice of criminal defense, administrative law and insurance defense. Wayne has taught legal writing at John Marshall Law School and has given continuing legal education seminars throughout his career in both civil and criminal law practice.