What Is A Motion To Suppress Evidence?
Motions to suppress evidence deal with preliminary questions concerning the reasonableness of seizures by police, whether those seizures are a motor vehicle stop, arrest of a person, or obtaining evidence related to that person. There are usually two areas where we deal with these preliminary questions. One is in determining whether or not there was a reasonable suspicion to pull over a car, such as a traffic deviation or equipment violation. The second is in determining whether or not there was probable cause to arrest a person, where probable cause means, based on evidence available to the officer at the time, whether there was a reasonable justification for continuing the investigation by arresting that person. The burden of proof for probable cause is a preponderance of the evidence. That burden rests on the State.
A defense attorney may challenge the reasonableness of a stop and probable cause to arrest in every case because, almost always, stops and arrests in DWI cases are made without a warrant issued by a court. However, the State will generally win because of the preliminary nature of the questions and the relatively low burden of proof with which they have to answer those questions. The question of probable cause to arrest depends on all of the information available to the officer at the time. Explanations for what the cop saw may come out at trial and raise reasonable doubt.
In the context of DWI, police officers will generally ask questions concerning whether a person had anything to drink, where they were coming from, where they were going to, and other investigative questions. The officer may also ask the person to perform field sobriety tests. With the exception of an eye test called the horizontal gaze nystagmus test, field sobriety tests usually call upon a person to stand in abnormal, unusual ways, such as in heel-to-toe fashion and on one leg. These tests are designed to provoke signs of impairment, but that impairment may be caused by things such as being nervous, tired, distracted, or having a prior physical problem, whether from a recent injury, chronic condition, or just clumsiness.
At the motion to suppress, signs of impairment will generally give the officer the probable cause he needs to continue his investigation and arrest the person for breath, blood, or urine testing.
At What Stage of a Case Is a Motion to Suppress Evidence Actually?
Motions to suppress can be filed at any time before a trial is set, with notice not only to the court and municipal prosecutor but also to the county prosecutor. When I represent people in DWI cases, I will generally file the motion to suppress right up front, because almost all DWI cases involve seizures (motor vehicle stops and arrests) of a person without a warrant. When there is no warrant, there is a presumption against reasonableness. That presumption is pretty easy for the State to overcome given the nature of the preliminary questions. The State will usually rely upon an exception to the warrant requirement known as emergent circumstances, which arises as the investigation progresses. They can also do a search as incident to arrest.
Courts have found that, as police gather information in a DWI context, it’s simply too inconvenient and unreasonable to require them to get a warrant. They can proceed without a warrant provided that they can justify it later. Some attorneys will file these motions after they receive discovery, such as police reports and video footage. That way, they have the facts available to them to amplify their motion to suppress. Of course, they may assess that same discovery and decide that filing a motion to suppress would be a futile exercise. Frankly, that’s what it is in most cases.
But filing the motion in every case gives the defendant more control over calendar management of the case and the timing of the ultimate disposition. It also provides me, as the attorney, an opportunity to see the cop in action on the stand and to assess what kind of a witness he or she is. Sometimes defendants insist on testifying, but I usually recommend that they don’t. This is because (a) the state has the entire burden of proving their guilt, (b) the defendant has an absolute right to remain silent, and (c) I can usually get what I need to develop a defense without the need for information from the defendant. However, if a defendant really wants to testify, then I will also use the motion to suppress as an opportunity for that defendant to see what it’s like to testify and be cross-examined in a relatively safe proceeding. The proceeding is “safe” because testimony at a motion to suppress does not become part of the trial unless the parties and the court agree to incorporate it. If there is no such agreement, then the testimony and evidence from the motion to suppress will not become part of the trial.
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