Motion to Suppress (Exclusionary Rule)

The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.

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What it means

The exclusionary rule is the remedy the courts created for constitutional violations by police: evidence obtained through an unreasonable search or seizure, a confession taken in violation of the right against self-incrimination or the right to counsel, or an identification procedure so suggestive that it is unreliable may not be used against the defendant at trial. A motion to suppress is the defendant's request, made before trial by a deadline the rules set, that the court exclude specific evidence on that ground. It is the principal vehicle by which the Fourth, Fifth and Sixth Amendments are enforced in an ordinary case, and in a case built on a search - drugs, weapons, digital evidence - it is often the whole defense.

The motion produces an evidentiary hearing at which the officers testify and are cross-examined, the burden generally resting on the prosecution to justify a warrantless search or the voluntariness of a statement and on the defendant to show a warrant was defective. If the evidence is suppressed, evidence derived from it - the "fruit of the poisonous tree" - falls with it unless the prosecution shows an independent source, that it would inevitably have been discovered, or that the connection has become attenuated. A suppression order does not end the case, but where the excluded evidence was the case, the prosecution often dismisses or offers a plea it would not otherwise have offered; the prosecution may also appeal the order before trial.

The rule has grown exceptions that limit it. Evidence seized in objectively reasonable reliance on a warrant later found invalid, on a statute later held unconstitutional, or on binding precedent later overruled is admitted under the good-faith exception; a defendant may only challenge a search of a place or thing in which they personally had a reasonable expectation of privacy; and suppressed evidence may still be used to impeach a defendant who testifies inconsistently with it. Violations of the Miranda warning rule exclude the statement but not, in most circumstances, the physical evidence it led to. Each state may give its own constitution a broader exclusionary rule, and several do.

Where this comes from

When people hire a lawyer for this

The suppression motion is the reason to hire a lawyer who tries cases rather than one who only negotiates them: the issues are found in the police reports, body-camera footage, warrant application and dispatch records, and are lost if not raised by the deadline - a plea entered before the motion is filed usually waives it. A defendant should tell the lawyer exactly how the police came to search, question or identify them, including anything that seems unimportant, because the sequence of events is where the violation lives.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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