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.
Yet one more way that federal agents often come across incriminating evidence is through cooperating witnesses, or as some people call them, “snitches.” Here is a very common scenario that was at the heart of a recent case I tried. My client and others operated a series of businesses. They had a trusted employee who basically ran the office, and most importantly, handled all the IT operations for the upper-level managers. This IT person made a backup copy of my client’s computer hard drive as part of regular maintenance, but never told my client about this. This person later got real mad and decided to leave. Before leaving, he pulls a bunch of files off the mirror image from my client’s computer and puts them on a thumb drive he takes with him. Later, he tells the feds, who then open up the thumb drive and start looking at the files, all without getting a warrant. Usually, a “private search” like this is not covered by the Fourth Amendment. However, when law enforcement then looks through privately obtained information, they take a chance if they exceed “the scope of the initial private search.” We were able to demonstrate that my client never authorized the former employee to keep the mirror image, and certainly had no idea that the former employee later made copies which he dragged on to the thumb drive. Bottom line, we were either going to get the evidence suppressed or force the prosecutors to give in. They took the latter approach and the evidence could not be used.
There are a many ways that federal agents and prosecutors can obtain evidence. Some methods make it difficult to “suppress” that evidence if there is a later criminal case. Other times, we have better luck. Either way, it requires a lot of work for the criminal defense lawyer.