The Motion to Suppress
The motion to suppress is the a pretrial mechanism for excluding illegally obtained evidence in a criminal case. If the police violated the law in getting the evidence, the evidence does not come in.
The two Texas exclusionary rules
Texas has two exclusionary rules. The first is constitutional: the Fourth Amendment prohibits unreasonable searches and seizures, and evidence obtained in violation of the Fourth Amendment is inadmissible. The second is statutory: article 38.23 of the Code of Criminal Procedure excludes evidence “obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America.”
Article 38.23 is broader than the Fourth Amendment. Under federal law, evidence is excluded only when the police violate the Constitution. Under article 38.23, evidence is excluded when the police violate any law — including statutes, regulations, and the Texas Constitution. A search that survives the Fourth Amendment can still fail under article 38.23.
The Fourth Amendment’s exclusionary rule also allows exceptions—for example, inevitable discovery—that article 38.23 does not allow.
When to file
A motion to suppress is ordinarily filed before trial. The court may hold a hearing outside the jury’s presence, takes evidence, and rules on admissibility. If the evidence is suppressed, the State proceeds without it, or it cannot proceed at all.
More often the trial court will carry the motion to suppress with trial, conducting the hearing mid trial when the State attempts to introduce the evidence.
A motion to suppress can also be raised during trial when the issue first becomes apparent.
Under article 38.23(a) of the Texas Code of Criminal Procedure, if the evidence raises a fact question about how it was obtained, the defendant is entitled to a jury instruction on the issue. That means that a jury can be asked to determine some collateral fact (“has the State proven beyond a reasonable doubt that the defendant was not wearing his seatbelt at the time of the stop?”) and disregard the evidence if the answer is “no.”
Burden of proof
The burden depends on whether the police had a warrant.
If they did, the warrant carries a presumption of validity. The defense bears the initial burden of showing the warrant was defective: that the affidavit lacked probable cause, that the search exceeded the warrant’s scope, or that the information was stale.
If they did not, the burden is on the State to prove that the warrantless search fell within a recognized exception: consent, search incident to arrest, exigent circumstances, the automobile exception, inventory, or plain view.
Common grounds
Traffic stops. An officer must have reasonable suspicion to initiate a stop. Once the purpose of the stop is completed, the officer cannot extend the detention without independent reasonable suspicion. Evidence discovered during an unlawfully prolonged stop is suppressible.
At least, “an officer must have reasonable suspicion to initiate a stop” is what everyone else will tell you. From our deep exploration of the history of Texas search-and-seizure law, we have concluded that the standard for any stop ought, under the Texas Constitution, to be “probable cause.”
We are working on bringing the Court of Criminal Appeals around to our way of thinking on this.
Consent. The State must prove that consent was voluntary. Consent obtained through coercion, deception, or a show of authority is not voluntary. The question is whether a reasonable person would have felt free to refuse.
Probable cause. A warrant affidavit must establish probable cause: a fair probability that evidence of a crime will be found in the place to be searched. Conclusory allegations, stale information, and uncorroborated tips from anonymous informants do not get there.
Scope. Even a valid warrant has limits. A warrant authorizing a search of a house does not authorize a search of an outbuilding. A warrant for documents does not authorize opening containers too small to contain documents. Evidence found outside the scope of the warrant is suppressible.
What is at stake
Suppression can end a case. If the State’s evidence depends on a search, and the search was illegal, the case collapses. Even partial suppression — excluding a confession, a weapon, or a lab result — can change the calculus enough to force a dismissal or a reduced plea.
The motion to suppress is one of the most consequential pretrial tools in criminal defense. Suppression of evidence wins cases.