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.

A motion to suppress evidence in a criminal case is a relatively new development. Up until we had Miranda vs. Arizona, we had what’s called the exclusionary rule. The exclusionary rule basically states that if the police obtained evidence unlawfully, then a defense lawyer can move to suppress that evidence due to the illegality. In Florida, that means that you have two different types of motions to suppress.

Under the rules of criminal procedure in Florida, subsection G describes the procedure for different elements in terms of how to handle evidence that is produced from an illegal search and seizure. Subsection H deals with confessions for a statement that someone makes, which is a form of admission. When a motion to suppress is granted, the state cannot use that evidence at trial.

I frequently tell people during a free initial consultation that just because evidence exists does not mean that it can be used at trial. Sometimes the defense can’t use evidence for reasons related to the evidence code, and sometimes that evidence has been suppressed based upon what we call case law.

When Exactly Is A Motion To Suppress Evidence Filed In A Criminal Case?

The short answer is that a motion to suppress is normally filed after someone has been arrested but prior to a jury trial on the merits of the case. This actually came up in a major sex offense jury trial that I was sitting in on as co-counsel. The judge in that particular case ruled that co-counsel had not filed his motion to suppress in a timely manner, and the trial objection would be ruled on as if it were invited error. For a more practical application, we take a look at rule 3.190 G and H, which specify the technical procedural requirements for filing a motion to suppress.

The basic rule is that a motion to suppress is something you do not file during trial as what’s called a motion in limine. Instead, a motion to suppress is filed prior to trial, and usually after a lawyer has had an opportunity to review the client’s information, their version of what happened, the state discovery exhibit and other evidence in order to determine their version of the facts. Within the legal profession, there is an expression that says there are at least three sides to every story. Quite often people will come in and ask whether or not they have a case. The answer to that question is very simple: without having reviewed all of the evidence, I can’t tell anyone whether or not they have a case.

What Are The Common Grounds For Filing A Motion To Suppress Evidence In A Criminal Case?

The best way to discuss the common grounds for filing a motion to suppress evidence in a criminal case is by discussing a couple of real cases. Early in my career, I represented someone on a carjacking case. In this particular carjacking case, they interviewed the defendant. Halfway through the interview, the defendant said, “Get me an attorney right now.” The issue came up in trial when I filed a motion to suppress, and there were basically three questions to ask: is it a Fourth Amendment search and seizure issue, is it a Fifth Amendment right to remain silent issue, or is it a Sixth Amendment right to counsel issue?

In this particular case, it was a Sixth Amendment right to counsel issue, and although the circuit court judge ruled that the statement would be allowed, we were successful on appeal after the defendant was convicted. The First District Court of Appeals in Florida specifically stated that the phrase “Get me an attorney right now” is an unequivocal request for counsel, and therefore questioning must cease immediately.

Another example would be a recent case out of Crestview Florida, where a client and a co-defendant were in a vehicle that had been stopped and searched. During the search of the vehicle, it was revealed that the initiating officer had turned her body camera off and on. During deposition, she testified truthfully that she’d done so because the lead officer had asked her to do so. He wanted to coach her as part of her training. The second problem that we found was that they were searching the trunk and found contraband. The lead officer explained to the rookie officer about six times how to read the person their rights and ask them who the bag belonged to. This particular officer had certainly been through the police academy, yet the first thing she said to the two co-defendants was “Whose bag is this?” Then she practically yelled the question a second time. Lastly, she read them their rights.

Obviously, it didn’t take very long to figure out that was a problem. So, in that particular case, it was a Fifth Amendment violation, which is completely different than a Sixth Amendment violation. The day before the hearing, the state filed a nolle prosequi (which is a fancy way of saying not prosecuted in Latin), and the case was dismissed. So, there are a couple of examples of motions to suppress, but they invoke different areas of the law. If you have a case, you may have a suppression issue that you are not even aware of. If you or someone you know has been arrested, it’s very important to find the best legal team possible that is headed with a board certified specialist in criminal trial law.

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.

For more information on Motion To Suppress Evidence, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.

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