What is a Motion to Suppress?

In Texas, one of the main weapons that a criminal defense lawyer can use to help his client is a “motion to suppress” that requests the judge order certain evidence be excluded from the case.  It can be filed in both state and federal court.

It’s a very powerful tool for the defense.

Why? Because a Motion to Suppress is the way defense attorneys can block the District Attorney’s Office (state prosecutor) or the Office of the U.S. Attorney General (federal prosecutor) from using evidence against someone in their case.  This is extremely important because law enforcement may well try and use illegally obtained evidence against the defendant in their attempt to win a conviction.

There’s no law that requires the government to check and make sure that their evidence is legally obtained before they try and use in in their case.  That’s the job of the defense lawyer.  The prosecution can use illegally obtained evidence — and get a conviction based upon it — unless someone stops them.

Examples of Illegally Obtained Evidence

What are some kinds of illegally obtained evidence that prosecutors like to use here in Dallas and Fort Worth and the rest of North Texas?

We’ve written about all sorts of illegally obtained evidence here (and there are even more examples given in the Case Results), but here’s a quick list:

• Traffic Stop by police without probable cause and police officer takes items that are put into evidence;
• Search by law enforcement without getting a warrant where items are discovered and put into evidence;
• Search by law enforcement with a search warrant but items are taken and put into evidence that exceed the scope of the search warrant;
• Search by law enforcement of smart phone contents without a valid search warrant which are then put into evidence;
• Failure to properly provide Miranda Warning and then use statement as evidence;
• Excessive force used to obtain statement or confession which is put into evidence; and
• Coercion used to obtain statement or confession which is put into evidence.

Motion to Suppress Evidence: How It’s Done

The process is simple enough.  The accused’s defense lawyer reviews the prosecution’s case, finds a troubling piece of evidence that the prosecution wants to use against his client, and drafts a Motion to Suppress.  (Research may be needed here.  Exhibits may need to be prepared, too.)

After the Motion to Suppress is finalized, the original motion is filed with the clerk’s office and a copy is served on the prosecution.  The prosecution has the opportunity to file its objection (“response”) to the arguments made in the Motion to Suppress.

The defense must be served with any response by the prosecution.  There’s no “big surprise” in the courtroom unlike what you may see on TV.  When it’s time to go before the judge, each side will have a good idea of what the other side’s arguments will be.

Next, the formal hearing on the motion before the judge is requested.  This happens in the courtroom.

At the hearing on the Motion to Suppress, the defense lawyer argues his reasons why the evidence cannot legally be used by the prosecution.  The prosecution makes its arguments.  Either side may introduce documents and put witnesses on the stand as necessary.  (These hearings can take time.)

If the judge is persuaded by the defense lawyer, then an order is filed in the case record suppressing the evidence. 

This means that the prosecution cannot use it against the accused in the government’s case.  If the evidence is a key to the prosecution’s charges, that single court order with its evidence ruling may end up getting the case dismissed. 

Note:  this is a simple overview of the process, but things can be more complicated here.  For instance, the burden of persuading the judge can flip from the defense to the prosecution at some point in the hearing if the law (including the Fourth Amendment) mandates that the government justify its actions in obtaining the evidence.

Another complication that can arise: if the prosecution argues the “inevitable discovery doctrine.”  Here, if the evidence was illegally obtained by law enforcement but the prosecutor can show it would have been discovered eventually in a legally acceptable way, then the suppression motion can fail.   (You may have seen this argued quite a bit by the Jack McCoy character on Law and Order, it was a good plot device.)

Legal Bases for Motions to Suppress Prosecution’s Evidence

Key to moving for suppression of evidence the prosecution wants to use at trial is the “Exclusionary Rule.”  It applies in both state and federal prosecutions.  It is based upon the Fourth Amendment of the United States Constitution.

See, e.g., Texas Penal Code 38.23 (Texas Exclusionary Rule), where the Texas Legislature passed a specific statute providing that “… no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

The Fourth Amendment protects against “illegal search and seizures.”  Constitutionally, the courts have read this federal constitutional protection to extend to any kind of evidence that is the subject of an illegal search.

The Exclusionary Rule provides that anything that is obtained in an illegal search and seizure cannot be used by the government against the defendant in a criminal case.  The District Attorney or the U.S. Attorney General’s Office is barred from using this evidence.

The Exclusionary Rule acts to protect us all against abuses of police power and overreaching of the government. 

What Kind of Evidence Can Get Excluded in a Motion to Suppress?

Theoretically, any piece of evidence that the state wants to use against the accused can be challenged and excluded.  In practice there are three kinds of evidence that tend to be targets of Motions to Suppress over and over again in criminal cases.  They are:

1. Identifications that finger-point the accused as the perpetrator of the crime;
2. Confessions by the accused; and
3. Physical evidence obtained by the police or investigators during a search and seizure.

1.  Identifications

Any identification procedure that is conducted by the police or the prosecution before trial violates the Due Process Clause of the Fourteenth Amendment if (1) the procedure itself is suggesting who they want to be picked in some way; and (2) that suggestiveness results in a strong possibility of misidentification.  See, Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

Examples of identifications that should be excluded include showing the defendant alone to the witness, outside of a lineup; a police officer making any hints or suggestions about who the witness should choose in a lineup; and having the accused stand out in some way from others in a lineup (either by clothing, race, age, size, clarity of the photo array, etc.)

2.  Confessions

Law enforcement likes to get a confession.  It makes their job so much easier.  And there’s no law that makes it illegal for the police to get confessions from the accused in their custody.

However, there are constitutional protections against how they go about getting any sort of confession.  That is a core component of “due process” and it is violated when the police coerce a confession.

This can be done by beating the accused and using physical force to get them to confess.  It can be done by psychological manipulations including making threats or offering all sorts of promises to the accused.  Coercion can also take place by isolating the accused for an extended period of time, or by denying him or her food, water, or medical care and treatment.

Confessions that violate due process are inadmissible in the criminal proceeding for any purpose whatsoever.  Once the defense establishes the confession was coerced, it should be barred and excluded from evidence as a matter of law.  See, Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).

3. Illegally Obtained Physical Evidence in an Illegal Search and Seizure

The Fourth Amendment protects against someone being convicted on evidence that was discovered illegally by the government.  However, this doesn’t mean that law enforcement does not grab evidence in an illegal manner.  It means that there are legal protections to block that evidence from being used at trial against the accused.  See, Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

Examples of illegally obtained (“seized”) evidence in a search include things like: anything in a car or truck that the police took if they pulled the vehicle over without probable cause to do so.  Traffic stops must be supported by reasonable suspicion or probable cause; the police are not allowed to stop citizens willy-nilly.

Surveillance must be done with a search warrant, too.  The police cannot grab evidence through wiretapping or eavesdropping technology in places where a person has a reasonable expectation of privacy.

Another big example here is when there is a search warrant but the police overreach and grab evidence that is outside the scope of the warrant’s language.

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For more information, check out our web resources, read Michael Lowe’s Case Results,

and read his in-depth article “Top 10 Defense Mistakes in Federal Conspiracy Cases.”