For the Defense - Vol. 6, Issue 2 - 12

Commonwealth Argument No. 1: Alexander
doesn't apply to cases where the stop occurred
before Alexander was decided.
Court apply
Not so. New criminal rules recognized by the Supreme
[pending]
retroactively " to all
criminal
cases " at the time the rule is announced, including those
" pending on direct appeal " as long as the issue was
properly preserved.14
Thus, Alexander unquestionably
applies to all cases pending in the trial courts.15
Commonwealth Argument No. 2: The
search is saved under the inevitable discovery
doctrine because the police would have found
the contraband anyways through an inventory
search.
This argument was considered and rejected in most of
the trial court opinions we have reviewed to date.16
In
order to respond to this argument, you should educate
yourself on the contours of both the inevitable discovery
doctrine and the inventory search exception to the
warrant requirement. For a thoughtful discussion on
inevitable discovery, check out Commonwealth v. Perel.17
And for a good discussion of inventory searches, look at
Commonwealth v. Lagenella.18
When preparing to litigate this (or really any)
suppression issue, start early by using the preliminary
hearing to lock in the officer's testimony concerning the
reasons why she performed the search. Then, in advance
of the suppression hearing, closely review the preliminary
hearing transcript as well as the police reports and video
evidence to be prepared to challenge any attempts to
offer a new or different search justification.
As a final suggestion, be prepared to remind the court
that the focus must be on what was done in this case,
not what the police hypothetically could have done. This
is so because " the inevitable discovery doctrine is not a
substitute for the warrant requirement. [As such, the]
Police must demonstrate that the evidence would have
been discovered absent the police misconduct, not simply
that they somehow could have lawfully discovered it. " 19
Commonwealth Argument No. 3: Defendant
can't establish an expectation of privacy in the
car.
This can be a fact-specific question. But as a general
principle, it is fairly easy to establish an expectation of
privacy in a car. The legal standard is this:
a " person
who challenges a search or seizure ... must demonstrate
(1) that he or she had a subjective expectation of privacy,
and (2) that his or her subjective expectation of privacy is
one that society is prepared to recognize as reasonable
and legitimate. " 20
To further educate yourself on this
issue, you may want to read Commonwealth v. Caban21
and U.S. v. Byrd.22
12 For The Defense l Vol. 6, Issue 2
We offer a few practical suggestions when litigating
expectation of privacy. First, if the Commonwealth does
not challenge it, the burden never shifts to the defendant
to prove it.23
want to highlight the issue for the government; instead,
let the prosecution raise the issue on its own.
If the Commonwealth challenges your client's ability to
establish an expectation of privacy, keep in mind that the
closer of a connection that you can establish between your
client and the car the better. For example, be prepared
to offer evidence that your client owned the car, or was
related to the car owner, or had the owner's permission
to be in the car, or had the renter's permission to be in the
car, kept her personal belongings in the car, etc.
Finally, remember that occasionally your client may
need to testify in order to establish an expectation of
privacy. In that case, be aware that your client can testify
without waiving his Fifth Amendment rights.24
Commonwealth Argument No. 4: This was a
frisk of a car for officer safety, not a probable
cause search.
This appears to be a common argument in connection
with stops conducted after Alexander was decided.
To justify a frisk of a car's passenger compartment for
weapons, the prosecution must establish that the officer
possessed a reasonable suspicion - based on specific and
articulable facts along with reasonable inferences drawn
from those facts - that the suspect (1) posed a danger and
(2) had a weapon in the car.25
When litigating this issue, be prepared to pin down
and challenge the police on the specific facts giving rise
to their alleged suspicion. Further, be prepared to argue
that the search was unnecessary because the suspect was
under arrest and already in custody outside of the car
when the search was conducted26
was unlawful because it exceeded its permissible scope.27
Commonwealth Argument No. 5: The
existence of an exigency justified the search.
" Exigent circumstances are defined by [1] a compelling
need for official action and [2] no time to secure a
warrant. " 28
The Commonwealth can demonstrate a
compelling need through a showing that " evidence is
likely to be destroyed, or because there exists a threat
of physical harm to police officers or other innocent
individuals. " 29
Though the question of whether an
exigency existed will depend on each case's facts, the
Supreme Court made clear in Alexander that warrantless
searches are the exception rather than the rule.30
As a practical matter, in searches that pre-dated
Alexander, the Commonwealth will be hard-pressed
to credibly argue that an exigency supported the
Second, and related to the first, you may not
and/or that the search
For the Defense - Vol. 6, Issue 2

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