Obviously, one great way to defend criminal charges is to attack the evidence; this is most often done via a motion for suppression.  A motion to suppress physical evidence seeks to prevent the prosecution from using certain physical evidence at trial.  A motion to suppress is based on the assertion that the evidence was not legally recovered and therefore cannot be used as proof to support criminal charges.

The first question to ask when considering a motion to suppress is whether or not a warrant was issued for the search; more often than not no warrant is issued for a search of a vehicle during a traffic stop.  Vehicles are effects within the meaning of the Fourth Amendment provision guaranteeing the right of people to be secure in their effects against unreasonable searches, and automobile stops constitute seizures for Fourth Amendment purposes.  People v. Abad, 98 N.Y.2d 12, 16 (N.Y. 2002).   Further, not only a driver, but a passenger as well has the right to challenge the stop and search of the automobile as well as to challenge any evidence recovered there from.  People v. Fore, 131 A.D.2d 329, 330 (1st Dep’t 1987).

If no warrant was issued for the search, the next inquiry to consider is whether the facts traffic stop and search and seizure permitted an exception to the requirement for a warrant.  Common exceptions to the warrant requirement include the following:

• Consent – an individual can consent (give permission) for a warrantless search, if consent was given no warrant is required
• Plain view – if the evidence recovered was in plain view then no warrant is required.  However, for the plain view exception to prevail, the officer must have viewed the property from a location the officer was legally permitted to be (ie: outside the window of the vehicle) and the property seized must be contraband on its face (meaning clearly illegal to possess the item seized).
• Inventory search – if a driver of a vehicle is arrested and the car is to be towed, police officers are permitted to search the vehicle in order to inventory the property inside to prevent loss of the property while the vehicle is impounded.  People v. Taylor, 92 A.D.3d 961 (2d Dep’t 2012); People v. Gonzalez, 62 N.Y.2d 386 (N.Y. 1984).
• Search incident to arrest – if an individual is arrested, a limited search, incident to the arrest, may be conducted to search for weapons and or preserve evidence of the crimes for which the individual was arrested.

Ultimately, a warrantless search and seizure is evaluated for reasonableness – the inquiry for evaluating the reasonableness of the search and seizure is whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstance which justified the interference in the first place.  United States v. Sharpe, 470 U.S. 675, 682 (U.S. 1985).

For example, if an officer stops a vehicle for an illegal u-turn, the illegal u-turn is what justified and created the predicate for the stop in the first place and any additional search or seizure must be reasonably related in scope to the illegal u-turn which justified the interference (traffic stop) in the first place.  A subsequent search of the center console, for example, is not reasonably related in scope to an illegal u-turn as no further evidence of the illegal u-turn could possible be found in the center console – thus in this circumstance the warrantless search was not reasonable since the search of the center console is not reasonably related in scope to the illegal u-turn, the subsequent warrantless search of the vehicle and seizure of the property inside was therefore not reasonable.

Suppression motions are fact specific and the motion papers must clearly aver that the defendant was searched by a police officer without probable cause or other legal justification in order to adequately plead a legal basis for suppression.  People v. Burton, 6 N.Y.3d 584, 588 (N.Y. 2006). When successful, suppression motions often result in dismissal of the criminal charges, since commonly the physical evidence is the only proof of the alleged crimes.