An Important But Often Forgotten Part of a Written Motion to Suppress
by: Ryan • March 3, 2012 • no comments
Let's assume during the hearing on your motion to suppress, the officer testifies that he read the Miranda warnings to your client, but he doesn't repeat those warnings on the stand. Can you win the motion to suppress your client's statements on the grounds that his testimony did not establish that Miranda warnings were given?
Maybe, but only if you alerted the state that you would be challenging the adequacy of the Miranda warnings given to the defendant. State v. Paul, 52 Or App 1017 (1981)
But won't alerting the state to that challenge ahead of time guarantee that the officer is asked exactly what warnings he or she gave?
Not necessarily. Most written motions to suppress actually consist of the motion, which is one page and primarily identifies the evidence to be suppressed, and the memorandum of law, which lays out the facts and the relevant law. Simply adding one sentence to the motion that identifies the issue will satisfy your legal obligations but catch the lazy prosecutor unaware. For example:
COMES NOW the defendant, by and through his attorney, Ryan Scott, and moves this Court for an Order suppressing evidence arising out of the search of the defendant's vehicle on December 3, 2009; the search of defendant's pockets at the jail on that same day; all unMirandized and involuntary statements made on or about December 3, 2009; and all derivative oral statements. The defendant also challenges the adequacy of any Miranda warnings that were given.
