What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.

How Prosecutors Turn Evidence of Innocence into Evidence of Guilt

October 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549


Prosecuting lawyers (like any lawyers) are in the business of selling their case to the jury.  To do that, they try to combine the facts of their case with a certain degree of spin or rhetoric to persuade a jury that they have proven their case.

Some of the prosecuting lawyer’s rhetoric, though, is solely designed at spinning evidence of innocence into evidence of guilt — or at the very least making evidence of innocence a ‘jump ball’ as to whether it proves guilt or innocence.

In defense of prosecuting lawyers — I don’t think they fully appreciate exactly what they’re doing.  First of all prosecutors are like any other professional group.  They train, discuss tactics, and share ideas and techniques they find useful.  Unfortunately some also make the thinking error that innocent people don’t get arrested or prosecuted.  When you combine those factors, you get arguments like the ones I’m describing in today’s blog.

Here are some common arguments I hear:

In drunk driving cases:

“Ladies and gentlemen… this defendant doesn’t look bad doing the field sobriety tests, but he’s the type of drunk we need to fear the most because he’s the type of drunk that can find his keys…”

“Drunk drivers can look like anyone.  They don’t look like normal criminals…”

“This drunk driver doesn’t seem too bad on the video because alcoholics know how to mask symptoms of intoxication…”

In Crimes Against People (such as robbery, assault or sexual assault)

“Of course we don’t have much evidence… The defendant is very skilled at choosing the time and place so there won’t be evidence or witnesses…”

“It’s very common for victims to retract their accusations.  They’ve been psychologically traumatized by the defendant…”

“What makes this defendant so dangerous is that he looks like a normal, everyday person…”

Here’s Why I Find these Arguments Distressing:

All of these arguments can be summed up this way “if we have evidence against you, then you’re guilty… and if we don’t have evidence against you… you’re still guilty.”

You can make these arguments about ANYONE sitting in the defendant’s chair in any case regardless of the evidence.  What is worse is that each statement probably does have a nugget of truth from the prosecutor’s perspective and is thus somewhat believable by a jury.  An experienced criminal defense trial lawyer must call the prosecutor out on these types of arguments and expose them for what they are.  Great ways to convict the poor schmo in the defendant’s chair regardless of whether they may be innocent.

Combating these Tactics

Jurors have to be told that, while yes, a person that looks decent on tape but still may be drunk is extremely dangerous — a person that looks good on tape may just be okay to drive too….

…Or that yes, a skilled criminal doesn’t leave much of a trace of a crime — but another reason there are no traces at the crime scene is that the accused might just be innocent…

…Or that yes, an alleged victim may retract an accusation because of stress or coercion — but they might also retract their accusation because it wasn’t true to begin with.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum is not a privileged communication nor does it create an attorney-client relationship.

Texas DWI Punishment Gets Tougher for First Time Offenders. Again.

September 11, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal


(972) 562-7549

A person with a blood alcohol concentration with a 0.15 or higher at the time the test is taken can now be charged with a Class A misdemeanor DWI instead of a Class B if it is their first offense.  This change took effect as of September 1, 2011.

First, let’s discuss the practical effects of the change.  A Class A misdemeanor on a DWI is punishable between 30 days and 1 year of county jail and a fine not to exceed $4,000.  A Class B DWI is punishable by between 72 hours jail and 180 days and a fine not to exceed $2,000.   Unlike a 2nd DWI, however, this law does not require the defendant serve 10 days as a term and condition of probation — meaning that a person doesn’t have to go to jail for 10 days just to be granted probation.

Second, you can see that I’ve italicized the words above “at the time the test is taken.”  This is a significant departure from normal drunk driving law which prohibits one’s blood/ alcohol concentration being above a 0.08 at the time of driving.  This is a “tie goes to the prosecutor” provision because it is very difficult for prosecutors to prove whether a person’s blood alcohol concentration was higher or lower at the time of driving due to a process known as retrograde extrapolation.  So this twist is really just punishing people who have blood alcohol concentrations that are on the rise when they are driving.

Texas’ prosecutorial mentality of “when you have a hammer, everything looks like a nail” with this new change gives a person even more incentive to refuse a breath test and to take a DWI to trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact a lawyer directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no communication is considered privileged.


My Comments in the McKinney Courier Gazette’s Article about the “No Refusal” Fourth of July Weekend

July 2, 2011

By Criminal Lawyer Jeremy Rosenthal

(972) 369-0577


Collin County has designated the 4th of July holiday weekend as a “no refusal weekend.”  You can read the McKinney Courier Gazette’s article about it here (the DWI lawyer they talk to seems very good!)

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific case you should contact an attorney directly.