Motions Related to Searches of Places

• Author: Robert K. Gill/Mark G. Daniel
• Pages: 85-122

2-1

CHAPTER 2

motions Related to

seaRChes of PlaCes

I. Motions to Suppress Evidence

A. General Points

§2:01 Purpose of Motions to Suppress Evidence

§2:02 Statutory and Constitutional Rules

§2:03 Warrant or Exigent Circumstances Required

§2:04 Burdens of Proof

§2:05 Rules at Suppression Hearings

§2:06 Findings of Fact and Conclusions of Law

B. Suppression of Search

§2:10 Grounds to Suppress Without Warrant

§2:11 Grounds to Suppress Search Under Warrant

C. Suppression of Evidence Seized Pursuant to Invalid Consent

§2:20 Requirements for Voluntary Consent

§2:21 Grounds to Suppress

II. Attacking the Search Warrant Affidavit

§2:30 Misrepresentations in Affidavit

§2:31 Grounds for Hearing

§2:32 Sealing the Search Warrant Affidavit

Texas Criminal Forms 2-2

III. Motion to Reveal Identity of Informer

§2:40 Purpose of Motion

§2:41 Applicable Rule of Evidence

§2:42 Exceptions to State’s Privilege to Withhold Informer’s Identity

§2:43 Defendant’s Burden

§2:44 Challenging Reliability or Credibility of Informer

§2:45 Mechanics of Rule

IV. Motion in Limine

§2:50 Motion in Limine Evidence Obtained During Search of Premises

V. Suppressing Searches of Electronic Items

§2:60 Wire, Oral, or Electronic Communications

§2:60.1 Statutory Law

§2:60.2 Case Law

§2:61 Pen Registers and Trap and Trace Devices

§2:61.1 Statutory Law

§2:61.2 Case Law

VI. Forms

Form 2-1 Findings of Fact and Conclusions of Law on Motion to Suppress

(Consent to Search)

Form 2-2 Motion to Suppress Search Without Warrant

Form 2-3 Motion to Suppress Search Under Warrant

Form 2-4 Defendant’s Brief in Support of Motion to Suppress Based on Illegal Search of

Residence (Warrant Does Not Describe the Residence Searched)

Form 2-5 Motion to Suppress Evidence Seized Pursuant to Invalid Consent

Form 2-6.1 Motion to Suppress Search Warrant—Deliberate False Statements in Affidavit

Form 2-6.2 Defendant’s Brief in Support of Franks Motion to Suppress Search Warrant

Form 2-7.1 Motion to Seal Search Warrant Affidavit

Form 2-7.2 Motion to Extend Order Sealing Search Warrant Affidavit

Form 2-7.3 Search Warrant Return

Form 2-7.4 Order For Assistance In Execution of Search Warrant

Form 2-8 Motion to Reveal Identity of Informer (Testimony Relevant to Guilt or Innocence)

Form 2-9 Motion to Reveal Identity of Informer (Challenge to Legality of Obtaining Evidence)

Form 2-10 Motion in Limine (Evidence Obtained During Search of Premises)

Form 2-11 Defendant’s Motion to Suppress Evidence Obtained from Detection, Interception or

Use of Wire, Oral or Electronic Communication

Form 2-12 Defendant’s Motion for In Camera Hearing on Evidence Obtained from Detection,

Interception or Use of Wire, Oral or Electronic Communication

Form 2-13 Defendant’s Motion to Suppress Evidence from Pen Register, ESN Reader, or

Trap and Trace Device

Form 2-14 Defendant’s Motion to Suppress Evidence Obtained from Mobile Tracking or

GPS Device

2-3 moTions relaTed To searChes oF PlaCes §2:02

I. MOTIONS TO SUPPRESS

EVIDENCE

A. GenerAl points

§2:01 Purpose of Motions to

Suppress Evidence

The purpose of a Motion to Suppress Evidence

is to show the trial court that evidence seized by law

enforcement and sought to be used against the defen-

dant at trial was illegally obtained; and therefore should

be excluded at trial from the jury’s consideration.

In the context of a search under a warrant, if

defense counsel can demonstrate that the warrant

was defective, the fruits of the search should be sup-

pressed. If a warrantless search was conducted and

was not based on a valid exception to the warrant

requirement, all evidence seized as a result of the

search should be suppressed.

Another benefit to requiring the trial court to hear

testimony on a Motion to Suppress Evidence is to

discover what the testimony of the law enforcement

agents involved will be at trial. At the hearing, coun-

sel can also lock in their testimony on certain points

for presentation to the jury.

PRACTICE TIP:

Defense counsel should always include a request

within a general discovery motion that the state make

known to the defense any search and/or arrest war-

rants and affidavits that may be a part of the case.

§2:02 Statutory and Constitutional

Rules

United States Constitution Amend. IV.

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches or seizures, shall not be

violated, and no warrants shall issue but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

United States Constitution Amend. XIV.

... nor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Texas Constitution Art. 1, §9.

The people shall be secure in their persons,

houses, papers, and possessions, from all

unreasonable seizures or searches, and no

warrant to search any place or to seize any

person or thing, shall issue without describ-

ing them as near as may be, nor without prob-

able cause, supported by oath or affirmation.

Tex. Code Crim. Proc. Art. 1.06.

Searches and seizures: The people shall be

secure in their persons, houses, papers and

possessions from all unreasonable seizures

or searches. No warrant to search any place

or to seize any person or thing shall issue

without describing them as near as may be,

nor without probable cause supported by

oath or affirmation.

Tex. Code Crim. Proc. Art. 38.23. Evidence Not to

Be Used

(a) No evidence obtained by an officer or

other person in violation of any provi-

sion of the Constitution or laws of the

State of Texas, or of the Constitution or

laws of the United States of America,

shall be admitted in evidence against

the accused on the trial of any crimi-

nal case. In any case where the legal

evidence raises an issue hereunder,

the jury shall be instructed that if it

believes, or has a reasonable doubt, that

the evidence was obtained in violation

of the provisions of this Article, then

and in such event, the jury shall disre-

gard any such evidence so obtained.

(b) It is an exception to the provisions

of Subsection (a) of this Article that

the evidence was obtained by a law

enforcement officer acting in objec-

tive good faith reliance upon a war-

rant issued by a neutral magistrate

based upon probable cause.

PRACTICE TIP:

While it is always important to cite both state

and federal authority in the suppression hear-

ing context, the most important provision is

Tex. Code Crim. Pro. Art. 38.23. It is the most