In this guide you will learn everything there is to know about a motion to suppress evidence.
And how it may be able to help you win a criminal case.
- Illegal Search And Seizure
- Warrant Requirements
- Illegal Detention Leading To Invalid Arrest
- 5th Amendment Violation -Involuntary Confession
- Miranda Violation
But before I go over the motion or the hearing itself…
When evidence is seized by police pursuant to a search warrant or an arrest or other detention, a criminal defense attorney will look at the factual scenario to determine if the evidence was illegally obtained and in violation of the defendant’s constitutional rights.
If there is some basis for this argument, then your attorney may file a motion to suppress evidence under Penal Code 1538.5.
Evidence obtained in violation of the defendant’s rights cannot be used at a trial to determine the defendant’s guilt.
It can be used for other purposes in these situations:
- Against any other person whose rights were not violated by the illegal search.
- If the government can show that the evidence would have been discovered inevitably and legally anyway.
- If the officers who conducted the search did so in good faith reasonable reliance on the validity of the warrant or statute even if is later declared unconstitutional.
- If the evidence was obtained at a later time and is now so attenuated or removed from the time of the initial illegal search so that suppression would no longer have a deterrent effect.
- To impeach the credibility of the defendant if he/she testifies at trial.
- In a collateral proceeding that does not judge the defendant’s guilt such as a preliminary hearing, sentencing hearing or parole revocation hearing.
Who Has the Burden of Proof in a Motion to Suppress Hearing?
A warrantless search is presumed illegal so that the prosecution has the burden of proving its legality.
If the search was done pursuant to a warrant, then the defense has the burden of proving evidence obtained was seized illegally.
Evidence that is subject to exclusion from being presented and heard at trial is varied. These include:
- Statements from an illegal wiretap
- Blood alcohol level results
- Results of blood tests revealing presence of controlled substances
- Results of other scientific tests
- Financial records
- Witness testimony
- Audio recordings
- Written statements
- Weapon used to allegedly commit a crime
There are various grounds for a defense attorney to request that certain evidence is excluded from a trial. The first two I want to talk about is the following:
- Illegal search and seizure
- Lack of a warrant, or insufficiency of the warrant
All persons have a right to be free from unreasonable searches and seizures under the 4th Amendment to the US Constitution and Article I, Section 13 of the California Constitution, which states:
A search of your person, car, home or private papers may not be performed by law enforcement unless the officer obtains a search warrant.
To obtain a search warrant, police must satisfy 4 requirements:
- File the warrant in good faith
- Base the warrant on reliable information showing probable cause to search
- Have the warrant issued by a neutral and detached magistrate
- Be sure the warrant states with specificity the place to be searched and the items to be seized
If not followed, your defense attorney can challenge the sufficiency of the warrant and have any evidence seized as a result suppressed or excluded.
Defense Attorneys Will Attack Warrants Based On:
- Sufficiency of the warrant
- The officer’s affidavit to support probable cause for issuing the warrant is based on fabrications or misrepresented the facts
- Lack of probable cause to issue the warrant
- The evidence seized was not the type described in the warrant
- The search exceeded the scope of the warrant.
Are There Exceptions To The Requirement That Police Get A Warrant?
Yes, there are exceptions to the warrant requirement.
For example, you have no expectation of privacy under the following examples:
- If the car you were driving was stolen3 or
- You had abandoned your home, cell phone, computer or tent4.
- If you left your motel room without paying, any evidence found therein may be used against you as it has also been abandoned.
- If contraband was found to be in “plain sight:” if so, then it may be seized5.
The items must be plainly visible and obviously incriminating.
However, if you consented to a search of your home, car, computer, room, tent or phone, any incriminating evidence secured will be admissible.
Are There Warrant Exceptions For Your Car?
If the police have the following they can search your car without a warrant:
- Probable cause to believe it contains contraband.
- Probable cause to believe you have weapons in the car
- If your car is impounded, police can do an inventory search and use any incriminating evidence found within it at your trial.
If you are arrested, police have the right to search you incident to the arrest if it was lawful, which includes a search in the immediate area of your arrest for a possible weapon or contraband.
If your arrest was not lawful, any evidence seized incident to your arrest may be suppressed6.
The other grounds for a defense attorney to request that certain evidence is excluded include the following:
- Illegal detention leading to an invalid arrest
- Violation of 5th Amendment
- Miranda Violation
If you were arrested or detained illegally and searched, any evidence seized will be excluded.
For instance, if police randomly pulled you over and then arrested you for drunk driving, then evidence of your intoxication while driving may be suppressed. This includes observations of the police officer regarding your demeanor, speech or performance on coordination tests as well as breath test results.
Evidence Illegally Obtained Is Considered Fruit Of The Poisonous Tree
There is a legal axiom called “fruit of the poisonous tree”7 that refers to a situation where evidence illegally obtained led to the seizure of other evidence.
Because the original search and seizure were tainted or “poisoned,” then any subsequent evidence that is found and seized may be excluded.
Are There Situations Where “Tainted” Evidence Is Allowed?
There are cases where “tainted” evidence is allowed. This applies to evidence that is so far attenuated or removed from the original taint8 or which would have been found inevitably by lawful means regardless of the illegal search9.
It is usually the passage of time that determines if the taint has sufficiently worn off.
For instance, a 4-month gap between an illegal search and the discovery of a witness found as a result of the original search was determined to be admissible10.
A confession or other statement can be obtained illegally if the defendant was not advised of his or her right to remain silent when law enforcement is about to begin interrogation.
Defendants are often tricked into confessing by a promise of lenient treatment or that no charges will be filed at all or that any chance of a reduced charge is waived if the defendant refuses to give a statement now.
Coerced confessions by threats of violence or a brutal beating is an obvious violation of a defendant’s right against self-incrimination.
An involuntary confession may be determined by these factors:
- Location of the interrogation
- Length of time in obtaining the confession
- If Miranda warnings were given
- If the officers granted the defendant’s request to have an attorney present or to speak to an attorney
- If the officers granted the defendant’s request to remain silent and stopped the questioning
- Which party initiated the meeting
- The defendant’s age and maturity
- The defendant’s physical and mental health
- The defendant’s experience with the criminal justice system
- You have the right to remain silent11
- Anything you say can and will be used against you in a court of law
- You have the right to an attorney
- If you cannot afford an attorney, one will be provided for you
A defendant must clearly indicate that he/she understands these rights. Silence is not acceptable and police cannot question the defendant in the absence of an unequivocal response.
Also, if the defendant agrees to talk but later changes his mind and says he wants a lawyer, all questioning must immediately cease.
Your attorney will schedule the hearing and give the prosecution sufficient notice that is within the local rules for that court.
- Statewide rules state it must be served 10 days before the hearing.
- The motion will contain the facts and circumstances of the seizure and the case law and arguments supporting exclusion.
At the motion to suppress hearing, both parties have the opportunity to present evidence and arguments in support of or in opposition to the motion.
Testimony is taken from:
- The arresting officer about how the evidence was obtained by the officer–i.e., plain view, consent by the defendant
- The defendant
Are Both Sides Able To Cross Exam At The Hearing On The Motion To Suppress?
Both sides may conduct cross-examination of witnesses followed by oral arguments by both sides as to why the evidence should be suppressed or not.
Is Hearsay Evidence Admissable?
Unlike a trial, hearsay evidence is admissible at a suppression hearing.
What Is Hearsay?
Hearsay is an out-of-court statement made in court to prove the truth of the matter asserted12.
For example, a witness testifies that he heard another person say that the defendant told him he raped the victim.
What Is The Legal Standard For The Motion?
The judge decides on the motion based on proof by a preponderance of the evidence. If it is more likely than not that the evidence was obtained illegally, then the motion is granted.
If the motion to suppress is granted, the judge will order the evidence excluded from the trial.
If this occurs, the prosecution may dismiss the case but subsequently file charges based on other evidence or continue with the prosecution if there is additional incriminating evidence that is likely to lead to a successful prosecution.
Another alternative is to offer a plea agreement.
After a hearing on the motion to suppress, a judge determines if the evidence was legally obtained.
If not, then the evidence is excluded from being used at trial against this particular defendant to prove his/her guilt13.
What Happens If The Motion Is Not Granted?
If your attorney chooses to make the motion at the preliminary hearing and loses, your lawyer can re-make the motion at a subsequent hearing but is limited to what is in the preliminary hearing transcript and to any evidence that could not reasonably have been presented at that hearing.
If the motion is not made until after the preliminary hearing, then any incriminating evidence the prosecution intends to introduce may be challenged as having been illegally obtained.
Can The Ruling Be Appealed?
Either the defense or prosecution can appeal the judge’s ruling.
The government can file its appeal before trial.
If evidence is suppressed, then the subject property may be returned to the defendant unless it is to be held in lawful detention14.
A motion to suppress evidence can remove evidence that was never legally obtained by police and can be crucial in a defendants case.
I have filed motions to suppress evidence that resulted in the dismissal of criminal charges because the prosecution was unable to continue with their case.
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- People v. Hughston, (2008) 168 Cal.App.4th 1062, 1070-71. [↩]
- In re Lisa G., (2004) 125 Cal.App.4th 801, 808 [↩]
- People v. Carter, (2005) 36 Cal.4th 1114, 1141 [↩]
- People v. Parson, (2008) 44 Cal.4th 332, 345. [↩]
- Horton v. California, 496 U.S. 128 (1990). [↩]
- United States v. Leon, 468 U.S. 897 (1984). [↩]
- Wong Sun v. United States. 371 U.S. 471 (83 S.Ct. 407, 9 L.Ed.2d 441 [↩]
- United States v. Ceccolini 542 F. 2d 136 [↩]
- People v. Superior Court (Tunch), (1978) 80 Cal.App.3d 665, 680-681 [↩]
- See – United States v. Ceccolini, footnote 11 [↩]
- Miranda v. Arizona, 384 U.S. 436 (1966). [↩]
- Hearsay Rule – Evidence Rule 1200 [↩]
- California Penal Code 1538.5 [↩]
- Penal Code 1538.5 PC (a)(1) – A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.” [↩]