Motions to Suppress Professor Beverly Reid O’Connell

The Law Governed by Penal Code section –Enacted to decrease unnecessary expenditure of time; – Limit the waste of jury time –Give prosecutor appellate reveiw

The Law Exclusive remedy for Fourth Amendment violations Must be in writing Made by a defendant Seeking to suppress evidence Can suppress tangible or intangible evidence

Writing Motion must state: –Specific items sought to be suppressed – The factual basis – The legal authorities which demonstrate that the motion should be granted

Timing Misdemeanors –Must be made pre-trial Preliminary Hearing –Five court days before the preliminary hearing –Personal service on prosecution After Information or Indictment –10 court days before the hearing – Response required 2 court days –No more that 60 days after arraignment on Information –Disfavored during trial

Tangible v. Intangible Gun Drugs Pay and owe sheets Photographs Etc. Observations of police officers Conversations overheard or recorded Witness testimony Confessions if unlawful arrest

Standing Defendant must show standing –Property or possessory interest in the place searched or items seized – Right to exclude others – Subjective expectation of privacy – Legitimately on the premises – Objectively reasonable expectation – Fruit of the poisonous tree

Standing How do you show standing Declaration from Defendant –Declaration cannot be used against a defendant in a later proceeding –Defendant should not have to choose between 4th Am and 5th Am

Hearing Burden on persuasion on prosecution –Prosecution must justify actions by a preponderance of the evidence Burden of production on defendant Court regulates order of proof Court required to receive “evidence” on issues necessary to determine motion Evidence code applies, e.g., hearsay

The Art of Motion Practice Written Motion – Identify the disputed and undisputed facts – Identify the applicable law – Argue the facts within the context of the law, and invoke a moral theme – Offer to produce evidence – Request relief

The Art of Motion Practice The Motion –Research, research, research – Organize important facts, don’t recite police report – Apply law to facts – Evidence, evidence, evidence – Be candid: don’t oversell your position, remember you need to persuade the judge –Be aware of timeliness of motion –Know your burden of proof – Know the local and local, local rules

The Art of Motion Practice The hearing –Prosecution: call police officer to testify to their observations and training and experience – Defense: Call defendant for the LIMITED purpose of showing the invocation of a right – Witness: corroborate – PREPARE ALL WITNESSES YOU CALL

The Art of Motion Practice The hearing –State your position – Present your facts persuasively without repeating them (“highlight”) – Present caselaw consistent with your position (“highlight”) –Distinguish opponent’s cases – Apply law to facts BRIEFLY – Restate your position BRIEFLY – Request relief

The Art of Motion Practice Why not bring a motion –Highlights importance to your case –Less time and effort –Opponent may not have thought about opposing evidence Why bring a motion – Preview your witnesses – Impacts your theory at trial – Adds certainty – Can’t “unring the bell” – Settlement value