Friday, November 25, 2005

Motion to Suppress using New Jersey Constitution

A groundbreaking area of immigration law is making motions to suppress evidence that was unlawfully obtained. An area with enormous potential is using the state constitution (such as the New Jersey Constitution) as a ground for demanding that evidence be suppressed.

Suppressing evidence is a court-created remedy for the unlawful actions of police to conduct an illegal search. The danger of widespread illegal searches is so great that courts have created a penalty in many situations that police cannot use the illegally obtained evidence in the case.

As a practical tip, make sure that you do not concede the facts that you want to dispute. This is an easy position to take in theory, but it requires skill and strength to follow through on this position in immigration court in many places. This is because in some courts, immigration lawyers virtually always concede the facts. Make sure that if you are trying to suppress evidence, you absolutely never concede the facts in question. (Note, you can refuse to concede the facts even if the fact is true -- for example, if you drove a green car on Sunday night, you can ask the court to require that the government prove that fact even if you know it is true that you drove a green car that night. I am not suggesting that you lie by saying a falsehood -- instead, you should refuse to concede the issue and ask that the government prove its case.)

This blog entry focuses on using the New Jersey Constitution. Using the Constitution of a state is a well-established legal theory that is rarely invoked in immigration court. Immigration lawyers should be considering it more often. Under the United States system of government, the United States Constitution sets the minimum level of protective rights that all people must be given. Nothing prohibits a particular state such as New Jersey to grant additional rights in the New Jersey Constitution. You need to review the state Constitution and court decisions analyzing the state Constitution, even if at first glance the wording in the US constitution and the state constitution seem similar.

There is a series of New Jersey court decisions that reach the conclusion that the New Jersey Constitution grants greater protections against unlawful searches and seizures than is granted under the US Constitution. So, raise the New Jersey Constitution when you make a motion to suppress in immigration court. This is a tactic that we have been preparing, researching, and doing.

Here is just one example of how it can be crucial: under the US Constitution, people are only allowed to raise an objection to Fourth Amendment violations such as an unlawful search if their privacy interest was violated. They can't object to a search that violated the rights of someone else's privacy rights. But this restriction does not exist under the New Jersey Constitution's article I section 7 protection against unlawful searches.

So, if a police officer conducts an unlawful search of your friend and illegally gets the friend to provide information about your immigration status, you might lose your motion to suppress under the US Constitution, but it's much easier to make the same motion to suppress under the NJ Constitution.

This is extremely complex and there are many areas I have not covered, so please consult an attorney with your particular situation before proceeding with this difficult area of law. It may be worth it if, for example, the result is that the government is forbidden from using their evidence and the immigration judge dismisses the case.


Post a Comment

<< Home