I’m currently working on a federal criminal case in a court near Atlanta, and am plowing through the manner by which various law enforcement agents seized evidence that the Assistant United States Attorney (also called the “AUSA”) wants to use against my client. This process has me thinking about the many ways that law enforcement can obtain evidence, and the questions of whether the lawyer representing the Defendant should, or should not, file a “Motion to Suppress.” Lots of people know that our wonderful Constitution contains the Fourth Amendment, which says the government cannot search for or seize evidence unless they have “probable cause”, and usually a warrant issued by a judge. When they do not have sufficient grounds for a search or seizure, sometimes the Court will “suppress” the evidence, meaning it cannot be used during the trial.
My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions. This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.” Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.” A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).
Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information. It usually works like this: a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations. The agency sends an order, directing the company to turn over a boatload of information. If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company. Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.