Section 9.44 Appellate Review

• Library: Criminal Practice 2012 Supp

2. (§9.44) Appellate Review

If a motion to suppress is denied, the defendant may appeal after trial. If the motion to suppress is granted, the state, through the prosecutor or circuit attorney, may appeal. Section 547.200, RSMo 2000. Appeal by the state is interlocutory, § 547.200.3, and is governed by Rule 30.02. In ruling on a motion to suppress that was overruled, “an appellate court will consider the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted.” State v. Goff,129 S.W.3d 857, 861–62 (Mo. banc 2004). Failure to include the transcript of the suppression hearing in the record on appeal precludes appellate review. State v. Cotton, 32 S.W.3d 577, 579 (Mo. App. W.D. 2000).

The standard of review used by the appellate court in reviewing the grant or denial of a motion to suppress has been the subject of some confusion. While it has been understood since Illinois v. Gates, 462 U.S. 213 (1983), that a judge reviewing the decision of a magistrate to issue a warrant is subjected to deferential review—whether there was a “substantial basis” for the finding of probable cause—the issue of...