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Can a Decision by the Judge on a Motion to Suppress Be Challenged?


Yes, a decision by the judge on a motion to suppress can be challenged. However, if the motion is brought early or in a timely way, if it’s brought within a certain amount of time of obtaining new evidence, that was the basis for the motion, then it can be appealed right away and it can put the case on hold. If the motion is not brought within a certain amount of time, then what happens is you’re not going to typically be able to get your appeal heard before the case is over, before the case goes to trial or there is a negotiated disposition.

What Does a Judge Consider in Deciding Whether to Grant a Motion to Suppress Evidence or Not?

What a judge is looking for in deciding whether to grant a motion to suppress evidence or not is to see whether or not the evidence that the officers obtained was the result of an unreasonable and illegal warrantless seizure and search in violation of our client’s rights. They would look at case law. They would look at prior cases, examples, and they often need to do some research unless they’ve had a specific issue before and are pretty up on it. What they want to see is there have been a Fourth Amendment violation and the judges will take this very seriously. In some counties, we’re more likely to get these motions granted than others. In some counties, unfortunately, it feels more like a rubberstamp. Most of the judges do not grant these motions. I’ve had judges in different counties with the similar issue and in one county the judge will grant it and the judge from another county might not. It tends to change over time, depending on which judges are on the bench.

These cases are taken very seriously in most cases by these judges and their job is to follow the law and see whether or not the prosecution has met its burden. The burden at a motion to suppress is not like at a trial where a jury would need to be able to say that there is proof beyond a reasonable doubt. At a motion to suppress, it’s like at a DMV hearing where they’ve got a civil burden, the 51% to tipping of the scales, are more likely than not burden is what the officer needs. That’s the sufficient cause that the officer needs to arrest for DUI. It’s a much lesser burden, so winning a motion to suppress the issues unfortunately are not the same issues that we are looking at in trial in the same way. In the trial, you’re looking at the elements of the case. In a motion to suppress, the judge just needs to decide is it more likely than not that the officer had sufficient cause to make the arrest, to do everything that they did every step of the way and make the determination that they made based on what they hear at this motion.

I have been in motions to suppress where I had no idea that something happened. My client didn’t clue me in when we talked about the case and there is nothing in the report to show me and there may not have been video or video didn’t capture something and then something comes out in testimony and it completely changes the motion. It may result in winning the motion. It doesn’t happen very often but it does happen sometimes, which is why bringing a motion, if you think you have some chance of winning it, is a good idea because things can happen. Things can come out in these motions.

Can You Give a Few Examples of Cases Where You Have Successfully Used a Motion to Suppress Evidence?

I did give at least one example previously where I have successfully used a motion to suppress evidence. Other examples would be I had a case where the California Highway Patrol or CHP officer was driving one way and my client was driving the other. My client was in a line of cars, this was one lane in each direction with the double yellow line going down the middle of the road with about four inches of black between the double-yellows. My client moved to the left and touched the yellow part of the line and turned back. The officer turned around, followed my client for quite some ways and there was no vehicle code violation at all. The judge in this case held against my client and we appealed it up to the next level and the judge panel disagreed with this judge and said, “No, that’s not enough”. Basically, the comment was if that’s enough to pull someone over, then most people will get pulled over every time they got behind the wheel of the car. That was one example of not enough insufficient cause to pull my client over and do a DUI investigation.

I’ve won on the weaving cases and the driving on the line. Other ones have been sobriety checkpoints, bringing a motion to suppress there and showing that the officer did not comply with what’s called the Ingersoll standards. Sometimes it’s following someone who legally goes to the turnout before the checkpoint or maybe there is no turnout provided. There are a lot of different checkpoint issues that come up. They are difficult to win, if you don’t have anything, but they can be won. With the right set of facts on checkpoints, we’ll bring the motions and hopefully be successful with them.

There are a lot of other factors that they’re looking at. I want to make sure with the checkpoint motion that it’s not like a racial profiling case. There needs to be a systematic way that they’re pulling these cars over unless they’re pulling over every car, then it has to be every other car, every third, fourth or fifth or whatever they have set up. They have to follow that so they don’t just cherry-pick which car they’re pulling over and pull over someone who looks like they fit some type of a profile. That’s another type of motion, and I’ve won these motions on number of different defenses. Of course, there have been a number that I have not won. They are difficult to win. It’s because the burden of proof is so low at these motions.

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Aaron Bortel

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