In many states, there are so many exceptions to the Fourth Amendment that it almost is non-existent. However, if it was truly a violaton of his rights to be free from illegal search and seizure, then the State must respond to the motion and the court must determine if the search violated his rights. If so, that evidence should not be admissible. The rest of the answer would depend on other facts. If all "incriminating" evidence is suppressed, then he would "walk."
If a MTS is filed, a hearing would likely have to be held before it could be granted or denied, but it helps if the person who files the MTS requests a hearing to ensure that it is heard. At the hearing, the State and the defendant (or their attorney) would present their reasons for why the motion should be granted or denied. If granted, then the case may have to be dismissed, or at the least, certain evidence that is alleged to have been illegally obtained may be excluded from use by the State. I advise that your bf hire a criminal defense attorney or apply for a public defender.
I assume the defendant has a defense attorney who has reviewed the evidence and filed a written motion to suppress/exclude certain evidence based on a violation of the 4th Amendment and/or under state constitution. The court may or may not set a hearing for proof to be taken and arguments of counsel. The judge will issue a ruling suppressing the evidence in whole or part or deny the motion. Speak with your criminal defense attorney about the procedure in your jurisdiction before your assigned judge.
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
Unless the motion demonstrates on its face that it is without merit, the judge will hold a hearing on the motion and, after hearing the testimony of witnesses and arguments from the attorneys, will either grant or deny the motion. If the motion is granted and the suppression of improperly seized evidence leaves the prosecution without adequate evidence to proceed, the prosecutor will dismiss the case. If the motion is granted but the state nevertheless has enough evidence from other sources, the prosecution will go ahead, but without the suppressed evidence. If the motion is denied, the prosecution of the case will go ahead as if no motion had been filed.
After the motion is filed the judges office will set a hearing date, usually 30-90 days out depending on the judges workload. At the hearing, the state must prove the legitimacy of the search. The judge may rule immediately or weeks or months later.
I've done hundreds of these things, so give me a call at the office.
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