Effective Motions Practice in Georgia DUI Cases – An Introduction
Below is an excerpt from a paper that I presented in connection with a speech on “Effective Use of Motions to Attack the Admissibility of State-Administered Tests” at the 1st Annual DUI Super Symposium in 2010. This speech was tailored to motions practice in Georgia DUI cases, but this excerpt addresses pleading requirements for motions to suppress and is generally applicable to other types of criminal cases in Georgia.
Other than demurrers, a motion to suppress remains the only tool available to Georgia criminal defendants to attack the ability of the state to proceed to trial. Unless otherwise agreed to by the parties, in Georgia, the criminal defendant cannot avail himself of what is known as a “motion for summary judgment.” Ewell v. State, 245 Ga. App. 610, 538 S.E.2d 523 (2000); Schuman v. State, 264 Ga. 526, 448 S.E.2d 694 (1994); Jackson v. State, 208 Ga. App. 391, 392, 430 S.E.2d 781 (1993). However, a motion to suppress provides us with the ability to force the state to produce a threshhold level of evidence prior to trial.
The general rule of law governing scrutiny of warrantless searches was stated by the Georgia Supreme Court in State v. Slaughter, 252 Ga. 435, 436, 315 S.E.2d 865 (1984):
Searches are conducted either with or without a search warrant. ‘The most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek … that the exigencies of the situation made that course imperative.’ “[T]he burden is on those seeking the exemption to show the need for it.” Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (citations omitted).
Because the burden is on those officers who conduct a search without a warrant to show that the search was conducted pursuant to an exception to the Fourth Amendment warrant requirement, it can be said that a search without a warrant is presumed to be invalid and “the burden is on the state to show that the warrantless search was valid.” Mincey v. Arizona, 437 U.S. 385, 390-391, 98 S.Ct. 2408, 2412-2413, 57 L.Ed.2d 290 (1978); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
“Once a defendant files a motion to suppress alleging an illegal search and seizure, the state bears the burden of proving that the search is lawful.” State v. Kuhnhausen, 289 Ga. App. 489, 657 S.E.2d 592 (2008), citing State v. King, 287 Ga. App. 680, 652 S.E.2d 574 (2007).
WHAT IS SUFFICIENT “PARTICULARIZATION” OF A MOTION TO SUPPRESS?
If you regularly file motions to suppress, you will undoubtedly run into a prosecutor who will argue that your motion is not sufficiently particularized. Motions to suppress are authorized by O.C.G.A. § 17-5-30, which provides:
(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:
(1) The search and seizure without a warrant was illegal; or
(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.
(b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.
(c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.
Dean v. State, 246 Ga. App. 263, 540 S.E.2d 246 (2000), directly addresses the requirements of particularity of O.C.G.A. 17-5-30. In Dean, the defendants motion(s) to suppress included the following:
Each motion alleged that on or about the date set forth in the accusation, Dean was approached, questioned, unlawfully detained, and arrested by (unnamed) law enforcement officers; that these actions were taken without probable cause and without specific and articulable facts reasonably warranting an investigatory stop under Terry v. Ohio; that incident to each stop he was frisked and a small bag allegedly containing marijuana was taken from the front pocket of his jacket; and that each frisk was conducted without his consent or probable cause.
Id. at 263 (citations omitted).
The trial court in Dean relied upon Rouse v. State, 241 Ga. App. 167, 567 S.E.2d 360 (1999), in dismissing the defendant’s motion(s) to suppress based upon a lack particularization. Reversing the trial court’s dismissal of the motions, the Court of Appeals held:
In cases involving warrantless searches, the factual showing required by OCGA § 17-5-30 need not be made in great detail, because in such cases ‘many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).’ [Cit.] In such cases, motions to suppress are held sufficient if they ‘put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.’
Id., quoting, Young v. State, 225 Ga. App 208-209, 483 S.E.2d 636 (1997) (emphasis added).
Dean is also helpful in addressing the sufficiency of a motion where we cannot identify the names of all of the officers that participated in the stop and investigation of our clients. In Dean, the defendant’s motion did not identify the officers that participated in his arrest. Nonetheless, the Court held that the state was put on sufficient notice as to which officers were required to satisfy its burden of proof:
Did the suppression motions put the State on notice as to the witnesses whose testimony was required? For essentially two reasons, we conclude that they did. To begin with, the transcript of the hearing on the motions shows that the State did bring law enforcement officers to testify. “Moreover, the State did not argue at the hearing that deficiencies in the motions left it unable to ascertain the identity of needed witnesses.” Therefore, failure of the motions to identify the officers conducting the stops and frisks, and to more fully detail the attendant facts, was not fatal to the sufficiency of the motions.
Id., citing Lavelle v. State, 250 Ga. 224, 226, 297 S.E.2d 234 (1982); State v. Barnett, 233 Ga.App. 496(1), 504 S.E.2d 531 (1998); see also, Hill v. State, 222 Ga.App. 839, 476 S.E.2d 634 (1996).
Relying upon Dean for the proposition that motions to suppress need not identify the officers involved in the case can be harrowing experience. Look to State v. Goodman, 220 Ga. App. 169, 469 S.E.2d 327 (1996), for a clear statement as to what is a sufficiently particularized motion to suppress. Motions to suppress which include the following information garnered express approval from the Court of Appeals:
- the date of the stop,
- the identity of the person stopped,
- the identity of the officer who made the stop,
- the law enforcement organization with which he was affiliated,
- the nature of the stop (e.g., traffic stop),
- the offenses with which Goodman was charged, and
- the conclusion that no such violations occurred which would justify the stop.