Section 6.14 When to File Motions

• Library: Criminal Practice 2012 Supp

A. (§6.14) When to File Motions

Motions may be filed in preliminary hearings, and in some cases they should be filed in the same manner as for circuit court cases. See § 542.296, RSMo 2000. To be safe, motions should be filed in writing, and in some cases they must be filed in writing. Section 542.296.2. In some jurisdictions, oral motions to suppress are allowed, and counsel should make an announcement before the commencement of the evidence that the hearing is subject to oral motions to suppress. If the motions are filed and denied in the preliminary hearing, counsel is not barred from filing those motions again in the circuit court and having those motions heard before the circuit court. If a motion to suppress is sustained at a preliminary hearing by the associate circuit judge, the circuit court is not bound by that ruling regarding the admissibility of the evidence that is the subject of the motion. Harroald v. State, 438 S.W.2d 202 (Mo. 1969); State v. Crouch, 353 S.W.2d 597 (Mo. 1962). If a motion to suppress is sustained at preliminary hearing by the associate circuit judge, the court may or may not order the defendant discharged. If the defendant is discharged, the prosecution can re-file the complaint and present it before a different associate circuit judge. State ex rel. Brown v. Duggins, 601 S.W.2d 11 (Mo. banc 1980).

Depending on the nature of the charge, motions to suppress evidence (whether regarding statements, physical evidence, or identification of the defendant) should generally be filed before the preliminary hearing. In drug cases, a motion to suppress evidence in accordance with an unlawful search and seizure should automatically be filed. The language in the motion should be general in nature if discovery has not been provided to counsel. This will allow counsel wide latitude in arguing the motion following the evidence. If a written motion is not filed and the testimony would seem to support such a motion, counsel may be barred from seeking suppression of the evidence for lack of filing a written motion. Section 542.296.2. It will be within the discretion of the associate circuit judge, however, whether to allow the hearing to proceed based on an oral motion to suppress or whether to require a written motion to suppress. Counsel should check with the judge well before the hearing date.

Most associate circuit judges prefer written legal memoranda on the issues involved in a motion. When...