Motion to Suppress: What to Expect at Your Hearing
Burden Shifting, Testimony Decisions, and Why You Should Be There
Published on by Attorney Jeff Lotter
A motion to suppress can make or break your case. If the court rules the evidence was obtained illegally, it gets excluded. Without that evidence, the State often can't prove their case. Here's what happens at these hearings and what you need to know.
What is a Motion to Suppress?
A motion to suppress is a formal request asking the court to exclude evidence that was obtained in violation of your constitutional rights. The Fourth Amendment protects you from unreasonable searches and seizures. When police violate that protection, the remedy is suppression: the evidence gets thrown out.
This matters because criminal cases are built on evidence. Suppress the drugs, and there's no drug case. Suppress the gun, and there's no weapons charge. Suppress the statements, and the confession disappears.
Common Issues Raised in Suppression Motions
- Illegal traffic stop - No reasonable suspicion to pull you over
- Unlawful frisk - Pat-down without reasonable belief you were armed
- Invalid consent - Coerced agreement that wasn't truly voluntary
- Plain feel violation - Reaching into pockets without immediately recognizing contraband
- Warrantless search - No warrant and no valid exception
- Miranda violations - Statements obtained without proper warnings
How Burden Shifting Works
One of the most important things to understand about suppression hearings is burden shifting. The burden of proof moves between the defense and prosecution depending on what's being challenged.
Defense Shows Warrantless Search
The defense's initial burden is simple: show that the search or seizure happened without a warrant. This is usually easy to establish from the police reports.
Presumption Shifts
Once a warrantless search is established, it is presumed unlawful. The burden shifts to the State.
State Must Prove Exception
The State now bears the burden of proving the search was lawful through some exception to the warrant requirement: consent, exigent circumstances, search incident to arrest, automobile exception, plain view, etc.
Why This Matters
This burden-shifting framework is favorable to defendants. Once we show there was no warrant, the State has to justify everything the officer did. If they can't meet their burden, the evidence gets suppressed. The defense doesn't have to prove the search was illegal; the State has to prove it was legal.
Do You Have to Appear at the Hearing?
Technically, no. A defendant's presence can be waived at a motion to suppress hearing. But I almost always want my clients present.
Here's why:
This Is a Major Hearing
A motion to suppress is often the most important hearing in your case. The outcome can determine whether we go to trial, negotiate a plea, or get the case dismissed entirely. You should understand what's happening.
Evaluate the Players
You need to see the judge, the prosecutor, and the courtroom environment. How does the judge rule on objections? How does the prosecutor handle cross-examination? This information matters if we're headed to trial.
See Your Lawyer in Action
For many clients, this is the first time they see me actually litigate. You need confidence in your attorney's decision-making. That's best developed at a motion hearing, not during trial when the stakes are highest.
Prepare for What's Next
Win or lose, we may be headed to trial. If we win, the State might appeal or proceed with weakened evidence. If we lose, we need to discuss next steps immediately. Being present allows that conversation to happen in real time.
Do You Have to Testify?
95%+
of my clients do not testify at suppression hearings
The vast majority of suppression hearings are won or lost on the officer's testimony, body camera footage, and legal arguments. The defense doesn't call witnesses; we cross-examine the State's witnesses and argue the law.
But sometimes, client testimony becomes necessary.
When Client Testimony Might Be Needed
Recently, I've had situations where putting a client on the stand was the right call. Usually, this happens when we need to counter specific claims the officer made. For example:
- The officer claims the client gave verbal consent, but the body camera doesn't capture it
- The officer describes "furtive movements" that didn't happen
- The circumstances of the encounter differ from the official report
- The client's demeanor or statements were mischaracterized
The Danger of Client Testimony
Putting your client on the stand opens them up to cross-examination by the prosecutor. This is not a decision to make lightly.
The prosecutor can ask about anything relevant to the motion. They can probe inconsistencies. They can ask questions you don't want answered. A nervous or unprepared client can hurt their own case even when telling the truth.
Factors We Consider Before Client Testimony
If client testimony might help the motion, we evaluate several factors before making that decision:
1. Client Exposure
Are there questions we don't want answered? Does the client have prior convictions that could come up? Are there areas where their testimony could hurt more than help? We map out every possible question the prosecutor might ask.
2. ASA Experience Level
Cross-examination is a difficult craft that's not easily mastered. Many Assistant State Attorneys don't have extensive cross-examination experience because, frankly, they don't do it that often. The State calls witnesses; the defense cross-examines. When the roles flip, some prosecutors struggle.
3. Client Confidence and Comfort
How does the client handle pressure? Are they comfortable speaking in a formal setting? Can they stay calm when challenged? Some clients are natural witnesses. Others freeze up or get defensive. We assess this through preparation sessions.
4. Alternative Evidence
Is there another way to get the testimony or evidence in without the client? Can we use body camera footage, other witnesses, or documentary evidence to make the same point? Client testimony should be a last resort, not a first choice.
The Bottom Line
These decisions have to be taken seriously. We discuss the risks and benefits with clients before making a final call. No one goes on the stand without understanding what they're getting into and being fully prepared for it.
What Happens at the Hearing
A typical suppression hearing follows this general structure:
- Defense presents the motion - We identify the constitutional issue and what evidence should be suppressed.
- State calls witnesses - Usually the arresting officer. They testify about what happened and why they believed the search was lawful.
- Defense cross-examines - We challenge the officer's account, highlight inconsistencies with body camera footage, and establish the facts that support suppression.
- Defense may call witnesses - If necessary, including the defendant. This is where testimony decisions come into play.
- Legal arguments - Both sides argue how the law applies to the facts. We cite relevant cases and explain why suppression is required.
- Court rules - Sometimes from the bench immediately, sometimes in a written order later.
Need Evidence Suppressed?
A successful motion to suppress can be the key to dismissing your case. Learn how we fight for you.
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Facing Criminal Charges? The Search May Be the Weak Point.
Many cases are won before trial ever happens. A successful motion to suppress can collapse the State's case entirely. If you believe your rights were violated during an arrest or search, we need to talk.
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