You certainly have heard
about Motions to Suppress. They are a common subject of books, movies and TV dramas. These
motions may target searches, identifications and statements made to police. Here are some essentials of
this topic that will help you better understand this part of court procedure. The author is a seasoned
criminal defense lawyer who has written this article from his vast experience to guide you during the litigation of Motions
Pre-trial motions such as Motion to Suppress, Motion to Dismiss, Motion to Continue
(the trial), Motion for Joinder or Severance and other similar issues are brought before the Court by the defense for determination
prior to trial. Motions to Suppress are directed to specific topics such as physical evidence illegally
obtained by the police through an illegal search; identifications by show-up or line-up or photo line-ups; or suppression
of statements of the accused taken by the police. This article will organize the topics and discuss them
briefly so that defendants on trial can better understand the process.
Search and Seizure of Evidence
When the defendant has his home, car, person or other property illegally searched and evidence is seized by the police
to be used in a criminal case against him, the Defense may move to suppress this evidence in a pre-trial motion.
Either the police had a search warrant or they did not.
If there was a search warrant, the issues
to be determined by the trial court are:
· Was the warrant insufficient on the face of the document?
· Was the property that the police seized adequately described in the warrant?
Was there probable cause for believing the grounds on
which the warrant was issued in the
· Was the warrant illegally issued?
the trial court finds that the warrant was illegal in any of these aspects, it can suppress the evidence obtained.
That means the evidence doesn’t come in at trial and cannot be considered by the jury. The
State will have to determine if it can prove a case without the suppressed evidence.
If there was no warrant when the search was conducted, then the legality of the search and seizure depends upon whether
there was a legal basis for the search on other permissible grounds. These include consent, exigent
circumstances, and protective sweeps.
If the police ask the owner for permission
to search and he consents, they are legally permitted to search based upon consent. This
typically happens when the police stop someone for a questionable traffic violation and ask if they can search the vehicle.
If the owner consents, the police are permitted to seize any contraband evidence that they find and it
will not likely be suppressed by the Court. If the police believe a crime is in progress and contraband is about to be destroyed,
they have the legal right to break in and search under exigent circumstances and the evidence will not be
If the police
look into the house while they are at the door and see contraband in plain view they are permitted to force
entry and seize the evidence. If there has been an allegation of guns in the house, the police can enter
to conduct a protective sweep of the house for officer or civilian safety. Should they
see drugs in plain view, they can lawfully seize the evidence.
One of the first questions that must be
determined in a motion to suppress hearing is whether the defendant had standing to object to the
search. This is a question of legal or equitable ownership and is determined under the doctrine
of standing. Does the defendant own the home or car that was searched? If
he doesn’t, there may be no standing and the motion to suppress dies right away. Only the
lawful owner of the property searched has the standing to object to a warrantless search.
Once it is determined that the defendant had standing, the legality of the search warrant must be decided
by the Court. If there was no warrant, the burden of production or going forward on the
motion to suppress shifts to the State to prove that there were adequate grounds to support the search and seizure.
That means the State has to call the witnesses and prove sufficient alternative grounds for the search.
Eye-witness identifications must be handled with great car, taking into consideration the witness’s emotional
state and the circumstances of the incident. How much of a stranger’s face can you see while you
are looking down the barrel of a gun? The subsequent analysis of the identification always follows the
same procedure. Whether identification comes from a show-up shortly after the
crime occurs, a photo array book of possible suspects, a photo lineup
prepared by the police or the age old live line-up with the victim behind one-way glass,
a careful process is followed. The Court will suppress any identification it considers to be inaccurate
The attorney must establish from the first officer on scene
what the eyewitness gave as the complete description of the culprit. Typically, the eyewitness says something
like this, “It was a white guy, 20-30 years old, with a red shirt on.” Such a statement gives
no identifying characteristics but tells the attorney early on that the eyewitness did not know the culprit prior to the crime.
The next event in the process is that the eyewitness picks the culprit out of the line-up. As the
case goes on, the eyewitness will be shown pictures of the defendant for memory ratification. He/She will
be shown the photo just prior to trial testimony. By the time the eyewitness testifies in court, he/she
is absolutely positive, “That’s the man!” The eyewitness has been conditioned during the identification
process. This is an evolving process that starts with the limited ability to identify the culprit at the
time of the crime and blossoms into an apparent certainty of the trial testimony.
astute attorney will break down this identification growth process into its component parts. He will educate
the jurors to be alert as to how the identification changed or evolved throughout the pre-trial process. Jurors
must be taught to understand that identifications are a living and growing process and that logically the
most accurate description would be the first one as the event was still fresh in the mind of the eyewitness. The
jurors’ role is to determine whether or not the identification was accurate or inaccurate.
This is part of their required role to determine credibility and reliability of the evidence. Jurors
must be ready to analyze the identification process and consider all of the ways it could have become tainted and unacceptable.
Once the attorney is fully prepared for these issues at trial, he can better determine if the facts
of this case show that “the identification procedure was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” See Simmons v. U.S., 390 U.S. 377, 384 (1968).
If the identification procedure was tainted, the Court may suppress the identification altogether.
That means this identification evidence will not be considered by the jury.
Confessions, Statements and Admissions
The motion to suppress will be determined
by the factors delineated in Miranda v. United States, 384 U.S. 436 (1966), which held that the police must read the accused his rights at any time where there
is custodial interrogation. This sounds very simple but the case law is never ending on
Miranda. Discussion of Miranda basically revolves around two terms, custodial
Custodial means that the accused must be
in custody and questions regarding this custody need to be considered. Was he arrested? Was
he in cuffs? Was he in the police cruiser or in an interrogation room at the police station?
Was he free to leave? Was he asked to come down voluntarily to talk to the police or was he already
When the police show up at a person’s house and ask him
to drive down to the station and talk to them, he is not in custody but the statements he makes are considered voluntary.
In such a statement, no Miranda warnings are required. However, if he is under arrest and
in custody, Miranda warnings must be given.
what is interrogation? The State will always claim that there was no interrogation, the police were kind
and polite and just asked some questions. Well, what does interrogation mean if it doesn’t mean police
asking questions and expecting answers? If the police admit that the accused was in custody and that
they asked him, “What happened out there?” that is enough to cause suppression unless the police first gave
Miranda warnings and received a knowing, intelligent and voluntary waiver of rights
from the accused. This requirement is of constitutional proportions and rests on the requirement of procedural
Due Process. The accused must be given notice that he has rights and that he can assert them to stop the
questioning by police or he can waive those rights, if he so chooses, and voluntarily give his statement. That
statement will be recorded and used against him at trial.
The rights are:
you have the right to remain silent;
· anything you do say can, and will, be used against you in a court of law;
have the right to speak to an attorney at any time before or during the questioning;
if you can’t afford an attorney, one will be appointed
at no cost to represent you.
If the defendant was taken into custody and then questioned without having first been given his Miranda
warnings and had given a lawful waiver on the record, then the Court will suppress the statement and any evidence found from
what was said in the statement. That will be done by granting the Defense’s Motion to Suppress.