10 easy steps to drafting your own motion to suppress

The Basics:

  1. Get your police report. A very basic one, an arrest affidavit should have been provided to you at the jail when you initially appeared before the judge. If not, or you no longer have it don’t worry it likely is available on line for free. Just go to your county clerks website. For ex. in Brevard County it is https://vmatrix1.brevardclerk.us/beca/Beca_Splash.cfm;jsessionid=72DB561D9B72FD194E97DCCEAD435509.cfusion?CFID=11666400&CFTOKEN=9e070296fa8351d9-6E9F04B8-5056-B465-1F9D6441F1BB9EEC
  2. Depending where you are in the discovery process (a future blog post) this may be all you need to proceed.

3. Above is a very brief synopsis of a police encounter that a Deputy with the Brevard County Sherriff’s office had with Joe Defendant.

4. And here is a very straight forward motion to supress based on nothing more than the original arrest affidavit above.

5. The format above is uniform. It states the jurisdiction, in the case circuit court for Brevard County Florida. Below the “style” of the case which is simply Florida vs. Joe Defendant. And obviously you need the case number so the clerks know where it goes.

6. Next let the court know what you are asking it to do. In this case you are asking the court to suppress all the evidence. Simple as that. Physical evidence, the drugs, as well as a confession that was obtained subsequent to the arrest.

Photo by Anete Lusina on Pexels.com

7. Cite the law. You simply tell the court where to look when make the determination that the evidence must be suppressed. In this case, and in almost all cases the law is easy. The Fourth amendment to the United States Constitution. In Florida you will also cite article I section 9 which is almost identical to the United States Constitution.

Also, note that the physical items seized violate the 4th amendment and the involuntary statements (the confession) violate the 5th and 6th amendments which are substantive and procedural due process. Everyone has heard of their miranda rights right? Well, that’s just the name of the case, the legal principals is are 5th and 6th amendments.

To suppress evidence simply means that a finder of fact may not consider it in making a determination if someone is guilty or not guilty. It is not the same as having a case dismissed. However, most times a finder of fact in a criminal case will be a jury. And in the example above if all of the physical evidence and statements were not able to be considered by the jury then…… really what’s left? In this case the granting of the motion would function as a de facto dismissal.

8. State the facts as you understand them. This may be to your advantage if you are drafting your own motion. You were there.

Im sure when speaking with your attorney at an initial consultation this was a point of your frustration. You naturally are thinking to yourself if he/she believes you. This is wasted energy. Your attorney/public defender has no sway in dismissing your charges. If that were the case everyone would just pay a lawyer to get rid of their charges. And unfortunately that is what I think alot of folks are under the impression is possible.

You think to yourself “no no no you got this part wrong” or “you got that part wrong” or “no it happened like this and not like that”. Drafting the facts as you understand them to have happened is your chance to use that first hand knowledge to your advantage.

9. In the affidavit above you can see the deputy says he saw Joe Defendant smoking marijuana. Well was that even possible? How was the car parked? How dark was it in this parking lot? How far away was the deputy? Was it a regular cigarette? All of these facts and infinite more can bear weight on weather the conduct of the deputy was legal or not. And illegal conduct means suppression, and in this case suppression means no case.

10. Finally give a brief analysis as to why the facts, AS YOU UNDERSTAND THEM, violate the law. The law is fourth amendment of the U.S. Constitution when moving to suppress the physical evidence (the drugs) and the 5th and 6th amendments to the U.S. Constitution to suppress the statements (the confession).

As an attorney I can honestly say that if it were me, or a member of my immediate family I would fight with every weapon I could find, and you should to. In my next post I am going to go through all the advantages of filing a motion to suppress and how to think of it strategically.

Typically in a scenario like the example above, the motion would be set for a hearing. At the hearing it is the governments burden to prove that the search/seizure was in fact legal. This means they must present evidence in court. Usually in a case like our example it will be the in-court testimony of the deputy that drafted the report.

The deputy will likely controvert the factual allegations of Joe Defendant and the judge usually will find the deputy credible and deny the motion to suppress. Remember, it is only one tool and it has other uses and benefits than simply having evidence excluded. Exclusion is the best possible outcome but not the only one.

If nothing else you are making the government’s lawyers work harder instead of being one of the sheep lined up for slaughter (extreme analogy). How much work is it for them to take a plea? You already know, none. It is true that you can make life more difficult for them and they can become more difficult to work with. But like I said, if it were me I would fight with every tool I had access to. And a motion to suppress can be a fantastic tool.