Winning a Motion to Suppress Evidence

Recently I represented a client who was arrested for selling and possessing for sale various quantities of marijuana. The only way to win the case was to file a motion to suppress evidence under 1538.5 of the California Penal Code. After a lengthy hearing on this motion, the court ruled in our favor and suppressed the evidence. The charges were then dismissed.

The police officer testified that he was driving down Century Boulevard in Los Angeles when he observed my client standing on the sidewalk and handing another man a plastic baggy which appeared to contain marijuana. He saw the other man hand my client something in return, but he could not see what it was. Supposedly my client then observed the police car and ran into his house. Believing that he had just observed a marijuana sales transaction, the officer and his partner stopped their police car by the man who received the plastic bag, which was now under his t-shirt. The officers searched the man and recovered a bag of marijuana. The officer then claimed that he went up to the apartment where my client had gone, and through the screen door he observed my client in a rear bathroom trying to flush what looked like marijuana down the toilet. Eventually the officer forced entry into the apartment, handcuffed my client, and recovered many ounces of marijuana both on the bathroom counter and in the toilet.

At the suppression hearing, both my client and the other man testified that the man had come over to the client's apartment for a social visit. The man said that he had purchased the marijuana prior to going to the apartment, and was carrying it in his pocket. He further testified that the officer's claim that a transaction occurred out on the sidewalk was false; the man never purchased marijuana from my client, not even in the apartment. Obviously, I argued that it was ridiculous to believe that the two men would have engaged in a marijuana transaction out on the sidewalk in front of whoever happened to be passing by; even assuming the client sold marijuana to the man he certainly would have done it in his apartment, not out on the sidewalk.

This kind of conflicting testimony takes place every day in the courts of this country. Police officers often lie about having probable cause to search and arrest people for criminal activity. The problem for judges is how to decide when an officer is lying and when he is telling the truth. Most of the time the judges rule in favor of the police officers. That way the judges can stay out of trouble with the prosecutors' office, and most of the time the defendants who might have been arrested and/or searched illegally were still guilty of the crime, so who cares if a little perjury was committed by the police?

In the case here under discussion, the judge was very intelligent and highly respected. Whenever possible, the defendant trying to suppress evidence should make every effort to seek out such a judge to hear his motion. When there is no arrest or search warrant, the prosecutor has the burden of proof in establishing that the search was lawful. In this case, the police officer had 12 years of experience and was highly trained and experienced as a witness. His testimony sounded totally believable. My client and his friend were not experienced witnesses, and they were quite nervous while testifying. However, while the prosecutor did undermine some of their testimony, he could not crack their statement that there was no sale of marijuana outside of the apartment. So the suppression motion boiled down to a police officer giving believable testimony that he saw a marijuana transaction countered by two individuals who were involved in possessing and maybe even trafficking in marijuana who gave believable testimony that there was no marijuana transaction.

The judge, incredibly enough, ruled that since there was no way to know who was actually telling the truth given the way they testified, he had to rule for the defense because it was the prosecutor's burden to prove the legality of the search. A wise and gutsy call by the judge. It's important to note that I did very little cross examination of the police officer. From my many years as a criminal defense lawyer I have learned that cross-examining an experienced police officer usually ends up making him look better, not worse, and gives a judge more reason to believe his testimony, not less.

So, with a righteoust judge, and properly prepared witnesses, it is still possible in this country to suppress illegally obtained evidence, despite the best efforts of police officers to give false testimony in order to convict the "bad guys". {See Minute Order}