A defendant may file a motion to suppress evidence during the pretrial phase of her trial. A motion to suppress is filed when the defendant is seeking to exclude evidence on the basis that it was illegally obtained. The evidence may have been obtained in violation of the defendant's right against unreasonable searches and seizures as provided under the Fourth Amendment of the United States Constitution. The evidence may have been tainted by other illegally obtained evidence, thereby supporting the defendant's assertion that it should be excluded. Timing of Filing the Motion to Suppress Evidence The motion to suppress must be filed prior to the commencement of trial. If the defendant fails to file the motion to suppress evidence prior to trial, the claim is deemed waived. The trial court does have the discretion to permit a late filing of the motion. Generally, the defendant is required to show:
- The cause for the delay in filing the motion prior to the commencement of the trial.
- The waiver of the defendant's right to file a motion to suppress the evidence resulted in actual prejudice to the defendant.
If the defendant's attorney inadvertently failed to file the motion to suppress evidence, the trial court is not required to permit the defendant to thereafter file the motion. Hearing on the Motion to Suppress Evidence The defendant is entitled to a hearing on the motion to suppress evidence. However, in order for the trial court to conduct a hearing on the motion, the defendant is required to raise a sufficient, concise, and factual basis in the motion. If the defendant's motion fails to raise sufficient and concise points, the trial court is not required to conduct a suppression hearing. The defendant and the prosecution are permitted to introduce evidence during the suppression hearing. Testimony as well as documentary evidence may be presented. If the defendant testifies during the suppression hearing, the testimony may not be used against him or her during the trial as evidence of guilt.