When the police search property and find incriminating evidence, the criminal defense lawyer would file a motion to suppress that evidence if there is an argument that the search was not legal. If the criminal defense attorney is successful with the motion to suppress, the evidence that was obtained by the police cannot be used against the defendant in court. There are, however, some rules which may not afford a defendant the right to even challenge an illegal search. For instance, a defendant has to establish that he/she has standing to challenge a search. Standing basically means that the defendant has a privacy interest in the property searched. For example, if the police come into my house and seize evidence, I have standing because I own the house where the property was seized. On the other hand, if the police go into a neighbor’s house and find evidence that incriminates me, I may not have standing to challenge that search since I do not own or live in my neighbor’s house.
In a recent lewd or lascivious exhibition and child abuse case near Jacksonville, Florida, the police responded to a domestic dispute. Once inside, a police officer saw an electronic tablet and started looking at some pictures. The police officer saw child pornography pictures on the tablet. The suspect denied that the tablet was his. He also denied that he owned some cell phones that were in the house. The police officers seized the cell phones, later obtained a search warrant for them and found more child pornography pictures on the cell phones.
The criminal defense lawyer filed a motion to suppress the evidence of the child pornography pictures found on the tablet and cell phones alleging that the police did not have consent to seize or search those items and did not have a warrant to seize them. This may have been a strong argument, but the court found that the defendant did not have standing to contest those searches and seizures. When a person voluntarily abandons or disclaims ownership of property, he/she cannot challenge an illegal search of that property, i.e. he/she has no standing. That can present a tricky situation. A person does not want to claim ownership of something that contains incriminating evidence. On the other hand, if the person disclaims ownership of the item, he/she may not be able to challenge an illegal search in court. Often, the best course of action is to exercise one’s right to remain silent in such situations.