How police gather evidence can affect a plea negotiation

The key to the successful prosecution of a criminal charge is usually the evidence gathered by the police to prove the allegations against the accused individual at the criminal trial. The strength of the evidence also plays a role in any plea negotiation as the criminal defense attorney tries to win a reduction from prosecutors of the charges against his or her client.

The right of a person to be safe from illegal searches by police and other law enforcement agencies is a principle that has existed in this country for almost 225 years. The United States Constitution includes it in the Fourth Amendment, and the state of Kentucky used almost identical language when it adopted its constitution in 1891.

If law enforcement agencies in cities such as Bowling Green violate the rules pertaining to how searches are to be conducted, a judge might order that the seized evidence may not be used to determine the guilt of the person facing a criminal charge. Both the federal and state constitutions require that searches must be reasonable. One method to determine reasonableness has to do with a person’s expectation of privacy.

Expectation of privacy hinges on the answers to two questions that the U.S. Supreme Court requires courts to consider in search and seizure situations:

• Did the individual from whom evidence was seized have a legitimate expectation of privacy?
• Was that expectation one that society considers to be reasonable?

For example, a man walking along a busy street carrying a clear plastic bag containing a handgun might say he has an expectation of privacy. However, it is unlikely that his expectation of privacy is one that the rest of society would view as being reasonable if our bag-toting traveler was stopped by a police officer who seized the weapon.

One aspect of a criminal defense to allegations of criminal wrongdoing is to review how police conducted a search for evidence. Challenging evidence collection methods used by law enforcement might not result in a dismissal of the charges, but it could cast doubt on the strength of the prosecution’s case that might lead to a plea negotiation favorable to the defense, such as reducing a felony to a misdemeanor with less severe penalties.