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 of a person or of evidence related to that person. There are really two areas where we deal with it. 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 one is in determining whether or not there was probable cause to arrest a person, where probable cause simply means that there was reasonable suspicion that the person violated the driving laws. The burden of proof for probable cause is a preponderance of the evidence.
A defense attorney may challenge the reasonableness of a stop in every case because they tend to be warrantless seizures, but the bottom line is that the state will generally win. This is because of the preliminary nature of the question and the relatively low burden of proof with which they have to answer that question. When it comes to probable cause to arrest, the question is based on all of the information available to the officer at the time. It may turn out that there are explanations for what the cop saw that may come out at trial and raise reasonable doubt. However, since we’re only dealing with the preliminary question of whether the officer had probable cause to arrest based on information available at the time of the arrest and given the low burden of proof, the state will usually win that motion to suppress as well.
In the context of DWI, police officers will generally ask questions concerning whether a person’s had anything to drink, where they are coming from, where they’re going to, as well as other investigative types of 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 standing on one leg. These tests are designed to provoke signs of impairment, but that impairment may be caused by any number of things, such as being nervous, tired, distracted or having a prior physical problem.
At the preliminary probable cause stage, signs of impairment will generally give the officer the probable cause he needs to continue his investigation and arrest the person for breath testing, a blood test or urine testing.
At What Stage Of A Case Is A Motion To Suppress Evidence Actually Filed?
When I represent people in DWI cases, I will generally file the motion to suppress right upfront, because the vast majority of DWI cases involve seizures of a person by stopping them and arresting them 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 arise as the investigation progresses. They can also do a search as incident to arrest.
Courts have found that as the police gather information in a DWI context, it’s simply too inconvenient and unreasonable to require the state 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.
I like to file the motion in every case because it gives the defendant more control over the calendar management of his 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 person he or she is. Sometimes defendants insist on testifying, but I usually recommend that they don’t. This is because the state has the entire burden of proving their guilt, and the defendant has an absolute right to remain silent. 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 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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