winning motion to suppress

8 Tips for Winning Suppression Motions

winning motion to suppressIf the government’s case against your client is built on evidence that was uncovered during the search of a residence, a vehicle, or other place or property, you need to act promptly to protect your client’s interests. One of the strongest tools you have is the motion to suppress. Texas Criminal Forms will help you work smarter and more efficiently in drafting motions to suppress and related evidentiary motions. Texas Criminal Forms explains 39 specific grounds that can be advanced in support of a motion to suppress; includes more than 30 sample forms; and offers helpful practice tips like these:

Use general discovery motions to your advantage.  Always include within your general discovery motion a request that the state make known to the defense any search and/or arrest warrants and affidavits that may be a part of the case.

Always cite Tex. Code Crim. Pro. Art. 38.23. While it is always important to cite both state and federal authority in support of your motion to suppress, the most important provision is Tex. Code Crim. Pro. Art. 38.23 (the Texas “exclusionary rule”). It is the most inclusive provision, encompassing both state and federal constitutional and statutory provisions. It covers searches and seizures by private citizens, as well as by agents of law enforcement.

File a motion in limine along with your motion to suppress. The motion in limine will help protect against use of the evidence obtained during the search until such time as the court is able to rule on the merits of the motion to suppress. Caution: The filing and granting of a motion in limine does not preserve error where the motion in limine is violated. If the motion in limine is violated, you must lodge a timely objection to preserve error.

Request a jury charge. If your motion to suppress is denied, request a jury charge informing jurors that they should disregard any illegally obtained evidence, under Tex. Code Crim. Proc. Art. 38.23, unless the state proves, beyond a reasonable doubt, that it was gathered legally.

Don’t reveal specific grounds for the motion until the hearing. Although numerous grounds can be argued for suppression of searches, it is generally better to not allege specific grounds in the motion to suppress to avoid advance warning to the prosecution of which ground(s) will be pursued at the hearing.

Consider Tex. Code Crim. Pro. Art. 18.12. The legality of a search warrant can also be litigated under Tex. Code Crim. Pro. Art. 18.12 (Magistrate Shall Investigate). The advantage to litigating the search warrant in this way might be to have the search warrant declared invalid before law enforcement has an opportunity to analyze and process evidence located pursuant to the warrant. (This method of litigating the search warrant presumes that counsel is aware of and working on the case at the time the warrant is returned.)

Attack the probable cause affidavit. If an affirmative misrepresentation is knowingly included in a probable cause affidavit, and is material and necessary to establishing probable cause, the warrant is rendered invalid. Because the case law in this area repeatedly refers to the fact that challenges to the validity of the affidavit arise out of the Fourth Amendment to the U.S. Constitution, it is essential to cite the Fourth Amendment in any objections and pleadings in these matters.

Seek the identity of an informer. File a motion to reveal the identity of an informer in every case where the state relies on information gathered from an informant, not just in drug cases. Even if the state is not ultimately required to reveal the identity, the hearing on the motion can be an excellent discovery device. It can also have the effect of inducing the state to dismiss the case or offer a favorable plea bargain. Likewise, if the affidavit alleges that the affiant received his information from a confidential informant, a motion challenging the validity of the search warrant can be used to attempt to force the state to reveal the identity of the confidential informant, by alleging that the confidential informant is a witness necessary to a determination of the motion.

 

Bob Gill is currently serving as Deputy Director of the criminal division of the Tarrant County Criminal District Attorney’s Office. He previously served as judge of the 213th District Court of Tarrant County, presiding over felony criminal cases from January 1, 1993, until he retired on May 31, 2007. He is a graduate of the University of Illinois and Southern Illinois University School of Law. Before taking the bench Judge Gill served eleven years as an assistant criminal district attorney in Tarrant County. Judge Gill has been Board Certified in Criminal Law since 1988.

Mark G. Daniel practices with the Fort Worth office of Evans, Gandy, Daniel & Moore. A former Assistant District Attorney in Tarrant County, Mr. Daniel has been in private practice since 1983 devoting his practice to criminal defense at the trial court level. In 2009, he was named Lawyer of the Year by the Texas Criminal Defense Lawyers Association.