These are often called motions to “Quash Arrest,” which is a bit of a misnomer. You can’t quash the arrest – it’s already happened. What you are really seeking to do is suppress evidence that was discovered as the result of what you are alleging was an unlawful arrest. Still, I keep using the title “Motion to Quash Arrest and Suppress Evidence” because it instantly tells the judge what you’re challenging. “Motion to Suppress Evidence” also works, but it’s a little less clear, since there are many bases to move to suppress evidence.
Now, in order to prevail on a motion to quash arrest, you must establish that the arrest or stop was in fact unlawful.
How do you do that? One of two ways. You either argue that the client was stopped without reasonable suspicion, or argue that he was arrested without probable cause.
Let’s take reasonable suspicion first.
The first task is to establish that your client was stopped. If he wasn’t, it doesn’t matter whether the police had any evidence at all, and the motion dies. [The test for this, by the way, was set forth by the Supreme Court in United States v. Mendenhall, 446 U.S. 544 (1980), when it stated that a person is seized when “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”]
So, look for cases in your jurisdiction that are factually similar to your situation and that have favorable holdings. Then, argue that the police simply didn’t have enough information before they stopped your client. Point out all of the innocent reasons why your client might have been behaving in what the police believed to be suspicious behavior.
The same type of process applies to the arrest cases. First, establish that your client was under arrest. I always look for the handcuffs. Once those go on, it’s difficult for the State to argue that your client was not under arrest. As with a Terry motion, you then have to argue that, at that moment, the police lacked probable cause.
My secret to arguing both of these types of motions is to argue that the seizure or the arrest happened as late in the police interaction as possible – just before the police find, or your client says whatever it is that has damned him. The longer that you wait in the interaction before alleging the seizure, the more police questions, pat-downs, and whatever else will have occurred, bolstering your argument that your client felt like he was in custody.
Wait too long though (for example, if you argue that the arrest didn’t happen until your client said “okay, I admit it. Those are my drugs.”) and you give the prosecution enough evidence to claim probable cause.
So, the trick is to find the sweet spot in the interaction where the police conduct establishes a maximum of custodial-type actions with a minimum of evidence.
You’re the big winner. Now what?
Congratulations, but don’t get carried away. Typically, motions that are granted only apply to evidence that is directly derived from the unlawful stop or arrest. If the prosecution can show that it would have discovered the evidence anyway, or that it was attenuated from the illegal conduct, the evidence may still come in. Depending on the circumstances, the prosecution may also be able to use the suppressed evidence in their rebuttal case.
But, make no mistake: winning a motion is a good thing for your client. See if you can use the win to get a better offer.
You’re the big loser. Now what?
Don’t feel bad. Motions are hard to win – especially on cases with serious charges. It shouldn’t be that way, but it is.
Happy hearings!