Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Evidence that is suppressed cannot be used in trial. As a result, one of three things can happen. It may be the case that the suppression of evidence is enough to damage the prosecutor’s case. This is what you find in a DUI type of case that turns into a reckless driving or a reckless boating case. If the case is damaged, then it may cause doubt in the prosecutor’s mind as to whether or not they would be able to obtain a conviction if the case were to proceed to trial. The general default is that they are not going to negotiate DUI cases outside of the parameters of a DUI conviction. Yet, for someone facing a DUI conviction, the ramifications can be life altering, so this is a scenario where there is a lot of litigation.

The suppression of evidence can also destroy a prosecutor’s case. I recently filed a motion to suppress in a drug case involving a vehicle search. The day before the hearing, the prosecutor elected to voluntarily dismiss the charges because the prosecutor knew that the evidence was going to be suppressed. When you are talking about a case like drug possession, it’s very hard for a prosecutor to stand in front of a jury and say “Ladies and gentlemen of the jury, we don’t have any evidence but we want you to return a verdict of guilty.” A prosecutor who says that will look like a fool, and no one wants to look like a fool. More importantly, it would be ethically challenged, to put it mildly. So, evidence may be so important to the case that if it is suppressed and the exclusionary rule is applied, then the case is effectively over.

In some cases, evidence is suppressed and the exclusionary rule is applied, but it doesn’t affect the case. This may happen when the evidence is just not that important. I will use an example to describe this. I want you to imagine that there is a church bus about to go through an intersection with a police officer directing traffic. Someone in an older pickup truck blasting music drives through the intersection right past the cop who records it on video camera. The video shows what looks like a Jack Daniels whiskey bottle with the bottom tilted to the sky and the neck of the bottle going into the defendant’s mouth as the defendant crashes into the church bus. Then, let’s imagine that the guy jumps out, hits the cop on the head with the bottle, and announces to everyone that he is bulletproof because he is drunk on Jack Daniels.

If a motion to suppress the breath test is filed and the individual is relieved of having to deal with that evidence at trial, they would still have all of the other evidence, so the suppression would be unimportant. In a DUI case, a breath test is normally going to be critical evidence. In the fact pattern I just gave, we have an admission to drinking, eye witnesses and a video recording of the drinking. We also have the broken bottle with some alcohol left in it. So, the breath test may have been suppressed, but compared to all of the other evidence, it didn’t matter. Generally speaking, it’s best to avoid those types of motions to suppress if they are not going to help the case.

Unfortunately, some lawyers like to put a dog and pony show on for their clients to show how hard they are working. In my view, people who are charged with criminal offenses are not nearly as concerned with seeing a dog and pony show as they are concerned with getting results that help their case. So, I favor filing motions to suppress where they are going to produce something of value and not filing motions to suppress where they will not.

What Factors Does The Judge Consider when Deciding Whether Or Not To Suppress Evidence?

When a judge is making the difficult decision of whether or not evidence is to be excluded from use at trial, the judge is basically looking at two things. First, they are looking at the case law, which will determine whether or not evidence is suppressed at the trial level or there is a reversal on appeal. Second, they are going to be looking at the case law in the context of the facts of that particular case. There can be 100 different cases of the same charge, yet one fact may make the difference in each one of them as to whether or not the exclusionary rule is applied or the evidence is admitted during trial. So, in a nutshell it’s very simple. A judge is going to make the decision based upon what the fact pattern is found to be at a pre-trial hearing for the purposes of a motion to suppress, as well as the case law that applies.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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