Intelligent Criminal Defense For Clients Throughout McLean County

How to Win a Motion to Suppress (by making the State do all the work)

by | Mar 26, 2024 | Firm News

No matter how many times I review a motion to suppress, it amazes me how few attorneys do them properly. This isn’t me trying to sound better-than; I fumbled around for maybe a year doing the same thing I see them doing before I found the case law I needed. In short, you feel like you’re the one with something to prove so you try to prove everything all at once: bad stop, bad search, invalid canine alert, improper arrest, unwarned confession, and the officer’s mom didn’t give him enough love as a child. Anything you can show, right?

Wrong. At least in Illinois, a motion to suppress is much easier than that. The movant just has to make a prima facie case (some evidence of a constitutional violation) in order to shift the burden of proof to the State. This is incredibly easy to do, and can usually be accomplished with four or five questions. To quote the Illinois Supreme Court, “Here, defendant made his prima facie case by showing that Sergeant Byrd searched the trunk of defendant’s car without a warrant.” People v. Gipson, 786 N.E.2d 540, 545 (2003). Better yet, because a motion to suppress exists to preserve constitutional rights (generally under the Fourth, Fifth, and Sixth Amendments as applied to the States through the Fourteenth), a defendant’s testimony at a suppression hearing cannot be used against them at trial except to impeach any inconsistencies in trial testimony. “[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt[.]” Simmons v. United States, 390 U.S. 377, 394 (1968).

What does this mean in practical terms? It means the defendant can just testify that they were searched or arrested without a warrant and that they weren’t doing anything illegal. Then the prosecution has to prove that the search/arrest were lawful. If the prosecution presents some evidence suggesting an exception to the Fourth Amendment’s warrant requirement (or whichever amendment is at issue), the defendant can still present additional evidence because the “burden of persuasion” lies with the defense. However, part of that “persuasion” can be made by pointing to the holes in the State’s case. “With the burden of production on the State (as here), ‘it is not a defendant’s responsibility to assist the prosecution by signalling gaps in the State’s evidence.’ [Citation]. We agree that the burden of persuasion remained on Davis (Gipson, 203 Ill. 2d at 306-07,* * *), but Davis could meet that burden, in part, by allowing the gaps in the State’s evidence to suffice.” People v. Davis, 2019 IL App (1st) 181492, ¶ 31.

As any attorneys reading this may realize, the difference between direct examination of an uncooperative witness and cross-examination of that same witness is huge. Rather than the officer being able to pretend they don’t remember or don’t understand the question, they give their testimony willingly and are then stuck with those answers when the defense attorney picks them apart. More importantly, anything that gets missed in the examination (whether training, foundation, what questions were asked pre-arrest, whatever) count against the State instead of counting against the defendant. Worst-case scenario, the judge finds that the State has shifted the burden back to the defendant and the defendant gets another opportunity to present evidence. This doesn’t mean every motion to suppress will win but, as I quickly realized a year or so into criminal practice, it gives you a much better shot.

I’ve had several people ask me why I’m so free with this information. Why give away the secrets you could charge for? Aren’t you running a business? Well, it’s the same reason you don’t want to represent yourself even if you have all the case law in front of you. There’s a world of difference between knowing what to do and knowing how to do it effectively. I’ve been cross-examining people with something to hide since the Christmas before my third birthday and I’m quite good at it. I would still be completely at a loss if I hadn’t been trained in the specific rules and procedures used in a criminal court. Similarly, not all attorneys are comfortable with (or good at) cross-examining witnesses. It’s a very confrontational process, requiring quick thinking and a firm grasp of the facts. Those of us who can do it well are in short supply and, frankly, I’d be perfectly happy if there were more attorneys out there doing everything in their power to protect our constitutional rights.

In short, winning a motion to suppress is relatively easy* and requires the State to do most of the heavy lifting. That said, it only works if you know how to make it work. This post is not intended to replace an attorney, but it might help you figure out if you’ve found the right one for the job.

*: Provided you have years of experience as a trial attorney, favorable facts, and an encyclopedic memory of the law.