Should officers report suppressed evidence?

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An officer and his partner pull up behind a suspicious looking vehicle parked outside of a home at around 1 a.m. The contact officer approaches the driver and asks why he’s parked there. The driver points to the house and says, “I live here.” The man’s slowed, slurred speech makes the officer believe he may be under the influence of alcohol and/or drugs. The man denies any use and gives the officer permission to look inside his car. When he does, he finds a meth pipe with residue inside, which the officer confiscates. He then places the driver, who is alone, under arrest.

As this is happening, the secondary officer notices a paper bag poorly hidden behind one of the front porch pillars. The officer decides to walk onto the porch and grab the bag. When he opens it, he finds several clear plastic baggies containing a crystal substance, which he confiscates.

When the baggies, found to contain methamphetamine, are presented in court the judge orders that evidence suppressed, meaning the judge is declaring that the evidence was obtained unlawfully and is therefore inadmissible in the criminal trial. The court held that the arrest and the seizure of the meth pipe were legal, but the seizure of the paper bag containing the drugs was not — a decision the officers did not share with their supervisors.

Questions

• Should an agency have a policy that requires the officers involved to notify their supervisors when evidence they present is suppressed in court?
• Should the involved officers tell their supervisors their evidence was suppressed, meaning the judge ruled the evidence was gained unlawfully?

Here’s what the law says

Municipalities can be civilly liable, under 42 U.S.C. § 1983 for example, for the unconstitutional actions of their officers. For municipal liability to attach under § 1983, a plaintiff must show that an act, or a failure to act, on the part of the agency caused the officer’s constitutional violation. A failure on the part of the agency to adequately train or discipline its officers can give rise to § 1983 liability. When an officer violates a person’s constitutional rights, agencies have an affirmative duty to address those violations in a meaningful way.

Establishing a duty for officers to self-report occurrences of evidence suppression allows agencies to become aware of potentially serious issues that, left unaddressed, can lead to massive civil liability exposure for the agency and the officer. One of the ways an agency can address constitutional violations by officers can be through taking disciplinary measures. But that need not, and probably should not, be the typical course of action.

Most constitutional rights violations are caused by lack of knowledge on the part of the officer. These knowledge deficiencies should be addressed with counseling and proper training. The issue that gave rise to the suppression must be closely reviewed and, if necessary, submitted to a competent legal expert for guidance. Once the review is complete, the officer should be remediated. Upon remediation, he is now better equipped to effectively and lawfully perform his law enforcement duties. And the agency has fulfilled its legal obligation to provide meaningful training and guidance.

There is another benefit to a self-reporting obligation. What if the judge’s ruling was incorrect? Trial court judges are not infallible. They make mistakes. That’s one reason appellate courts exist to correct mistakes of the courts below. What if the trial court judge’s grant of the motion to suppress was in error? The involved officer leaves the courtroom believing he has violated someone’s constitutional rights when in fact, there was no violation and the officer acted lawfully.

By self-reporting the evidence suppression, the agency has the opportunity to review the situation and consult with a competent legal expert. The agency review may determine the officer acted lawfully. The officer should be informed of this finding so that he is reassured that he is in fact doing his job within the bounds of the law. It is also advisable to inform the prosecutor’s office in these situations so the prosecutor can be prepared to address in court future issues of this kind.

With that in mind

Adopting a policy that requires the reporting of occurrences of evidence suppression protects the officer, the agency and the public from future constitutional violations. Officers can become better educated on critical points of law, making them more confident in the exercise of their authority and less likely to generate founded complaints or losable lawsuits.

Here’s an example of such a policy:

“Officers will promptly report to their immediate supervisor any occurrences of:

1. The suppression in court of any evidence due to the violation of a criminal defendant’s constitutional or statutory rights; or
2. A prosecutor’s decision, communicated to the officer, to nolle prosequi a case or reduce a charge where one of the reasons given for the nolle prosequi* or reduction in charge is the prosecutor’s determination that the defendant’s constitutional or statutory rights had been violated and the evidence discovered as a result thereof is subject to suppression.”

*A formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.

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