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Law Firm of Aaron Bortel

What Is a Motion to Suppress Evidence?


A motion to suppress evidence in California is a motion that is made by the attorney of the accused, like defense counsel, which is claiming that there has been an illegal search and seizure and that there’s been a violation of the defendant’s rights under the Fourth Amendment of the United States constitution. What we’re claiming is that basically there has been an act that should not be allowed on the part of the officers who eventually arrested our client. In my case, it’s typically one of my clients would be arrested for DUI and we’re trying to get a judge to knock out the evidence that was obtained by this illegal search and seizure.

When Is the Motion to Suppress Evidence Filed in a Criminal Case?

When the motion to suppress evidence is filed in a criminal case depends on the rules of the county that you’re in. Typically, a motion to suppress is filed sometime before a jury trial. A notice needs to be given to the other side and to the court. The other side gets to respond and then the side bringing the motion gets to respond to their response. In some cases, we will file them right away. If we file the motion to suppress within typically a short period of time after the arraignment, we can appeal that motion and put their proceedings on hold. If we don’t file it quick enough, and we don’t for certain reasons, then it’s much more difficult to appeal that ruling. Often that’s to be done after the case is over, which will be after a trial or after a guilty or no contest plea. To give you an example of a county which does it differently in San Francisco, the judge who would allow you to do the motion to suppress would potentially do it one of two ways.

This seems to change each year when we get a new master calendar judge in Department 17, which is the misdemeanor Master Calendar Department. Either they’ll let you do the motion before a jury trial happens as long as you let the court know that the outcome of the motion will be dispositive. If you lose the motion, you are basically going to take the deal that the prosecutor has offered and that’s going to finish the case. If you win the motion, it may result in the case going away unless they have other evidence that might result in some type of a reduction in charges. In most cases, it’s very difficult to make the claim to a court that the motion will be dispositive because you just don’t know a lot of things that can happen or things that can come out in a motion.

In San Francisco, the court will often say or require that the motion be done at the beginning of a jury trial. This is a huge disadvantage to the defense because motion to suppress can often bring out helpful facts to the defense case, things that are not in a police report, statements that were not or things that were not seen on video or heard on audio. In most counties, the motions are heard at some point before a trial, very often months before trial and as I said, sometimes within a short period after the arraignment the not guilty plea is entered in the case.

What Are the Common Grounds for Filing a Motion to Suppress Evidence In a Criminal Case?

The illegal search and seizure is what we are challenging when filing a motion to suppress evidence in a criminal case. If we believe that someone should not have been pulled over and that there should not have been a DUI investigation or the investigation should not have resulted in an arrest and search, then we’re going to file a motion. A typical motion to suppress in a DUI case would be for lack of sufficient reason to pull someone over and do the investigation. There are a lot of different examples of that. Sometimes, an officer might think that their car is driving in an inappropriate manner. What an officer is supposed to be able to show is something like pronounced weaving over a substantial period, a little jerk of the car one way or the other should not be enough by itself to pull someone over. If someone is driving on a line; the Collins case references where someone drove on a fog line for about 10 seconds and then on the other side of the lane for about 10 seconds and that was found by the court not to be pronounced weaving. It was not enough to pull someone over. Some courts don’t agree with that case and they would not grant a motion to suppress for that situation, but they should according to the case file we have on this. Sometimes an officer observes someone they think is speeding; they just eyeball it but they may not have any other evidence and maybe when they catch up to the person, they are not speeding when they’re clocking them. It’s up to the court on whether or not that is sufficient for doing a DUI investigation. Sometimes someone is put through field sobriety tests and the officer claims that they failed them and they didn’t. Sometimes the procedures the officers use are not proper and it may be an admonishment that’s given regarding whether or not someone is required to do a breath or a blood test and what can happen if they don’t, and the consequences if they don’t take that test.

Those issues can result in a motion to suppress being brought and potentially granted. There are other things, a temporary registration sticker may or may not be enough for an officer to pull someone over depending on what else they have. Failing to use a turn signal is not a violation of the Vehicle Code unless there is another vehicle that can be affected by the movement so that might not be enough. Other things like tinted windows or sometimes whether a car was parked illegally or not could be an issue, or whether someone was driving too slow. I had a motion to suppress granted years ago; I believe it was in San Matteo County. My client was in the right-hand lane exiting the freeway doing about 45/50 miles an hour. The regular speed limit there, this was I believe on the 280, was 65 miles an hour. The judge looked at all the evidence and agreed with me that my client got into that right lane a little early, but knowing that area and just starting to slow down a little earlier maybe than other people would, was not enough for the officers to pull them over. And that was an example of a motion to suppress that was granted and the DA had no evidence after that because all that evidence was suppressed. The DA dismissed the case against my client. You don’t know if you can win a motion to suppress unless you bring one, which is why anytime we think we have a chance to win on a motion to suppress we’re going to bring it. Some attorneys will bring these motions in every single case, some don’t. I think you have a lot more credibility as an attorney, especially one who appears in certain courts a lot, if you pick and choose your motions to suppress. If you’ve got absolutely nothing and the courts are seeing that way too often, you’re going to hurt your other clients. These kinds of things can result in certain courts taking this out on the defense bar and other attorneys can suffer because of it. By all means, any potential winnable motion to suppress should be considered and brought if there is any chance to win or get a better result in a case. There are a lot of other grounds for filing a motion to suppress but I just listed the ones that we see more often.

For more information on Motion to Suppress Evidence in California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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