Motion to Suppress Evidence
(725 ILCS 5/114-12) (from Ch. 38, par. 114-12)
Sec. 114-12. Motion to Suppress Evidence Illegally Seized.
(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:
(1) The search and seizure without a warrant was
(2) The search and seizure with a warrant was illegal
because the warrant is insufficient on its face; the evidence seized is not that described in the warrant; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed.
(b) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.
(1) If a defendant seeks to suppress evidence because
of the conduct of a peace officer in obtaining the evidence, the State may urge that the peace officer’s conduct was taken in a reasonable and objective good faith belief that the conduct was proper and that the evidence discovered should not be suppressed if otherwise admissible. The court shall not suppress evidence which is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer who acted in good faith.
(2) “Good faith” means whenever a peace officer
(i) pursuant to a search or an arrest warrant
obtained from a neutral and detached judge, which warrant is free from obvious defects other than non-deliberate errors in preparation and contains no material misrepresentation by any agent of the State, and the officer reasonably believed the warrant to be valid; or
(ii) pursuant to a warrantless search incident to
an arrest for violation of a statute or local ordinance which is later declared unconstitutional or otherwise invalidated.
(3) This amendatory Act of 1987 shall not be
construed to limit the enforcement of any appropriate civil remedy or criminal sanction in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure.
(4) This amendatory Act of 1987 does not apply to
unlawful electronic eavesdropping or wiretapping.
(c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the evidence, the court shall terminate the trial with respect to every defendant who was a party to the hearing and who was within the scope of the order of suppression, without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. In the event of such termination, the court shall proceed with the trial of other defendants not thus affected. Such termination of trial shall be proper and shall not bar subsequent prosecution of the identical charges and defendants; however, if after such termination the State fails to prosecute the interlocutory appeal until a determination of the merits of the appeal by the reviewing court, the termination shall be improper within the meaning of subparagraph (a)(3) of Section 3-4 of the Criminal Code of 2012 and subsequent prosecution of such defendants upon such charges shall be barred.
(d) The motion shall be made only before a court with jurisdiction to try the offense.
(e) The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.
(Source: P.A. 97-1150, eff. 1-25-13.)
A Motion to Suppress Evidence is a criminal defense attorney’s best friend. The motion essentially asks the judge a judge not to allow a piece of evidence at trial and to return the evidence if allowed by law. For example, if a case is about the possession of a weapon and the judge rules that the State’s Attorney cannot use the weapon, the State will have no evidence and the case will be dismissed. The United States Constitution and the Illinois Constitution allow for a person to be free from improper search and seizure. This protection was meant to protect citizens from a corrupt government. The result of this protection is that the State’s Attorney’s office is not allowed to use evidence against a person where that evidence was obtained using improper search or seizure.
I use the rights provided by the Constitution as often as possible. When I get a case I go through all the evidence with a fine-tooth comb. I determine exactly what happened, the order all the events took place and what the officers knew at what time. I try to determine if at the time my client was arrested the arresting officer had “reasonable articulable suspicion” that he/she had committed a crime. By law, a police officer cannot arrest a person until they have suspicion that they committed crime. This Suspicion has to be reasonable. This means that the police officer must have observed the crime or was informed with reliable information that the person committed a crime.
I represented a guy who was observed by a police officer sell drugs to two unknown men. After the police observed my client have two short interactions with two men they pulled up and arrested him. After arresting him they found four bags of heroin in his pocket. As a result of the arrest this client was facing 6 to 30 years in jail. It was my opinion that this was not enough for an arrest. How is it possible that a police officer can see someone slip a twenty into a guy’s hand while the guy gives back a bag that is no bigger than a thumb. I decided that the police officer could not have had a reasonable suspicion that my client was committing a crime and I filed a Motion to Suppress Evidence.
On direct examination, I got the officer to admit that he was about fifty feet from my client, that he did not personally know my client or the men he was interacting with. He also admitted, that he could not hear their conversations and could not know what they were talking about. He further admitted, that he could not determine how much money the men passed my client or what my client passed back to them. I proved that there were no warrants issued to arrest my client and the sole reason for the arrest was the observations of the two exchanges.
When I gave my closing argument, I explained to the Court that the case law states that an officer’s observation of a single suspect drug interaction is not enough for a stop but that 6 observed suspect drug interaction was enough. I argued that in this case, since the officer was so far from my client, since he did not know what my client was saying to the two men and since he could not see for certain what was being handed back and forth that two suspect drug interactions was not enough. The Judge ruled in my favor. He held that the two interaction alone were not enough for a police officer to stop and arrest my client. As a result, the drugs were not allowed at trial and the State’s Attorney’s Office had no choice but to dismiss the charge.