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Motions to Suppress

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					Motions to Suppress



          Professor Beverly Reid O’Connell
               The Law
• Governed by Penal Code section
  1538.5
  – Enacted to decrease unnecessary
    expenditure of time;
  – Limit the waste of jury time
  – Give prosecutor appellate reveiw
               The Law
• Exclusive remedy for Fourth
  Amendment violations
• Must be in writing
• Made by a defendant
• Seeking to suppress evidence
• Can suppress tangible or intangible
  evidence
                 Writing
• Motion must state:
  – Specific items sought to be suppressed
  – The factual basis
  – The legal authorities which demonstrate
    that the motion should be granted
                    Timing
• Misdemeanors
  – Must be made pre-trial
• Preliminary Hearing
  – Five court days before the preliminary hearing
  – Personal service on prosecution
• After Information or Indictment
  – 10 court days before the hearing
  – Response required 2 court days
  – No more that 60 days after arraignment on
    Information
  – Disfavored during trial
        Tangible v. Intangible
•   Gun                  • Observations of
•   Drugs                  police officers
•   Pay and owe sheets   • Conversations
•   Photographs            overheard or
                           recorded
•   Etc.
                         • Witness testimony
                         • Confessions if
                           unlawful arrest
                Standing
• Defendant must show standing
  – Property or possessory interest in the
    place searched or items seized
  – Right to exclude others
  – Subjective expectation of privacy
  – Legitimately on the premises
  – Objectively reasonable expectation
  – Fruit of the poisonous tree
               Standing
• How do you show standing
• Declaration from Defendant
  – Declaration cannot be used against a
    defendant in a later proceeding
  – Defendant should not have to choose
    between 4th Am and 5th Am
                 Hearing
• Burden on persuasion on prosecution
  – Prosecution must justify actions by a
    preponderance of the evidence
• Burden of production on defendant
• Court regulates order of proof
• Court required to receive “evidence” on
  issues necessary to determine motion
• Evidence code applies, e.g., hearsay
   The Art of Motion Practice
• Written Motion
  – Identify the disputed and undisputed facts
  – Identify the applicable law
  – Argue the facts within the context of the
   law, and invoke a moral theme
  – Offer to produce evidence
  – Request relief
   The Art of Motion Practice
• The Motion
  – Research, research, research
  –  Organize important facts, don’t recite police report
  –  Apply law to facts
  –  Evidence, evidence, evidence
  –  Be candid: don’t oversell your position,
    remember you need to persuade the judge
  – Be aware of timeliness of motion
  – Know your burden of proof
  – Know the local and local, local rules
  The Art of Motion Practice
• The hearing
  – Prosecution: call police officer to testify to
    their observations and training and
    experience
  – Defense: Call defendant for the LIMITED
    purpose of showing the invocation of a
    right
  – Witness: corroborate
  – PREPARE ALL WITNESSES YOU CALL
   The Art of Motion Practice
• The hearing
  – State your position
  – Present your facts persuasively without repeating
    them (“highlight”)
  – Present caselaw consistent with your position
    (“highlight”)
  – Distinguish opponent’s cases
  – Apply law to facts BRIEFLY
  – Restate your position BRIEFLY
  – Request relief
   The Art of Motion Practice
• Why not bring a motion
  – Highlights importance to your case
  – Less time and effort
  – Opponent may not have thought about opposing
    evidence
• Why bring a motion
  –   Preview your witnesses
  –   Impacts your theory at trial
  –   Adds certainty
  –   Can’t “unring the bell”
  –   Settlement value

				
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posted:10/16/2011
language:English
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