A
motion to suppress is written motion filed with the court by the defendant in the case. A motion to suppress is argued in front of the judge with both sides supporting their own
position. In addition, an evidentiary hearing may be requested by the defendant. During an evidentiary
hearing, witnesses, such as police officers may be required to testify. The
witnesses will be subject to both direct and cross-examination. After the
hearing, the judge will make a ruling on the motion.
Under
the United
States Constitution, Amend IV, and Article 14 of the Massachusetts Declaration of Rights, a defendant has a right to be free from illegal searches and
seizures. In addition, the search of the defendant’s person or property must
have been conducted by someone acting on behalf of the “state”, such as police
officers or their agents, in order for a defendant’s rights to be violated. If
a search and seizure is conducted by a private entity, then a defendant cannot
claim that his rights have been violated.
A
defendant must have also an expectation of privacy in the area that has been
searched. A defendant cannot claim
that the police illegally searched a stolen car that he operated, nor can a
defendant claim that he has an expectation of privacy to things that public
also has access to, such as a trash barrel placed outside.
A
defendant must also have “standing” in order to claim that his rights have been
violated. In Massachusetts, a
defendant can claim that he has standing it if he is charged with a possessory
crime or was present when the item in question was seized. “When a defendant is charged with a
crime in which possession of the seized evidence at the time of the contested
search is an essential element of guilt, the defendant shall be deemed to have
standing to contest the legality of the search and the seizure of that evidence”. Commonwealth v. Amendola,
406 Mass. 592, 610 (1990). The law in
Massachusetts is different from the Federal law, which does not provide this
type of “automatic standing” to a defendant.
If you believe that you were illegally searched or seized, please contact Attorney Gomes at 617-524-6600 for a consultation.
