Should a Defense Lawyer Re-Object to Evidence After a Motion to Suppress is Denied?
Must a defense lawyer re-object to evidence after a motion to suppress is denied? The general rule in Georgia is that when you make a motion to suppress evidence, you do not need to re-object to the admissibility of the evidence at trial when the State moves to introduce it. However, the cases discussed below make it clear that a criminal defense lawyer must be careful how they respond to the Court’s inquiry ever whether they object to the admissibility of the evidence that they previously sought to suppress.
In Nolton v. State the merits of the denial of defendant’s motion to suppress a key seized from his person were affirmed because the issue was waived. During trial “counsel did not merely fail to object to the introduction of the key as evidence; he affirmatively stated upon inquiry by the trial court that he had ‘no objection‘ to it at the time it was tendered. We have no rule in this state which prohibits counsel from affirmatively waiving or withdrawing an objection previously made.”
Mattingly v. State approximates the facts of this case. Defendant unsuccessfully moved to suppress evidence of marijuana seized from his home. “Although defendant argued during his motion to suppress hearing the evidence seized during the search of his home was inadmissible because the search was illegal, he did not offer that objection at trial. When each item of evidence seized during the search was offered for admission at trial, defendant affirmatively stated he had no objection…. Thus, defendant affirmatively waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motionto suppress.”
Failing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point. Dyer waivedhis claim of illegal search by repeatedly stating he had no objections to admitting the seized items.
Dyer v. State, 233 Ga. App. 770, 771, 505 S.E.2d 71, 72–73 (1998).
So, criminal defense lawyers in Georgia cannot affirmatively state that they do not object to the admissibility of the evidence.
What is a lawyer to do? The safest course of action for a criminal defense lawyer is to re-new his/her objection based upon the motion to suppress.