There’s a new batch of opinions from the court of appeals today. One is State v. Reavis, a case that raises a question I’ve been asked several times recently in different contexts: what’s a motion to suppress, and how does it differ from a simple objection to the admission of evidence, and from a motion in limine? In Reavis, the issue arose in the context of G.S. 15A-975, which generally requires motions to suppress to be filed before trial in superior court. But the same issue comes up in DWI cases because of G.S. 20-38.6, which likewise provides that “[t]he defendant may move to suppress evidence . . . only prior to trial,” subject to limited exceptions. In DWI cases and in superior court cases, then, it can be very important to know whether a particular motion is a “motion to suppress.” If the motion is a motion to suppress, but it is not made prior to trial, it will be barred as untimely.
The relationship between a motion to suppress and a motion in limine is clearly explained in our case law. “[A] motion in limine is a preliminary or pretrial motion. . . . Article 53 of Chapter 15A deals with a specific type of a motion in limine and that is the motion in limine to suppress evidence. . . . The fact that it is a motion to suppress denotes the type of motion that has been made. The fact that it is also a motion in limine denotes the timing of the motion regardless of its type.” State v. Tate, 300 N.C. 180 (1980). In other words, a motion to suppress made before trial is a variety of motion in limine. A mid-trial motion to suppress is not a motion in limine.
It’s a little harder to figure out the relationship between a motion to suppress and an objection to the admission of evidence, the latter of which is sometimes also called a motion to exclude evidence. Both types of motions have the same objective: keeping evidence out. So what’s the difference?
The General Statutes seem like a good place to start. Although there’s no statutory definition of the phrase “motion to suppress,” G.S. 15A-974 is of some relevance. It states that “[u]pon timely motion, evidence must be suppressed if . . . [i]ts exclusion is required by [the state or federal constitutions]; or . . . [i]t is obtained as a result of a substantial violation of the provisions of [Chapter 15A].” If that’s an implicit definition of a motion to suppress, though, it’s surprisingly broad. It would suggest that, for example, a defendant’s Confrontation Clause objection to the state’s use of a substitute analyst in a drug case is a motion to suppress, because it is grounded in the Constitution. Maybe that’s right, but my sense is that Confrontation Clause issues usually aren’t raised prior to trial, and our appellate courts have been willing to review cases in which the defendant makes only a mid-trial objection to the evidence in question. See, e.g., State v. Craven, __ N.C. App. __, 696 S.E.2d 750 (2010). On the other hand, if G.S. 15A-974 effectively defines “motion to suppress,” it is also surprisingly narrow, because established justifications for suppression – such as the denial of a DWI defendant’s right to have a witness observe a breath test for alcohol, see, e.g., State v. Hatley, 190 N.C. App. 639 (2008) – are mandated neither by the state or federal constitutions nor by Chapter 15A.
In State v. Wilson, 293 N.C. 47 (1977), the state supreme court said in passing that the first prong of G.S. 15A-974 requires suppression only “when the evidence sought to be suppressed is obtained in violation of [a] defendant’s constitutional rights.” The emphasis on how the evidence is obtained also appears in the commentary to G.S. 15A-974, which refers to “evidence gathered in violation of constitutional rights.” This is also in keeping with how the phrase “motion to suppress” is defined in the federal courts. Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires motions to suppress to be filed prior to trial. The scope of the Rule was addressed in United States v. Barletta, 644 F.2d 50 (1st Cir. 1981) (citations omitted):
The first question presented by these provisions is the scope of the terms “suppress” and “exclude.” At least as used in 12(b), “suppress” has a rather definite and limited meaning, as explained by the Advisory Committee notes accompanying the Rule. Motions to suppress are described as “objections to evidence on the ground that it was illegally obtained,” including “evidence obtained as a result of an illegal search” and “other forms of illegality such as the use of unconstitutional means to obtain a confession.” Put generally, then, suppression motions concern the “application of the exclusionary rule of evidence,” or matters of “police conduct not immediately relevant to the question of guilt”; motions to exclude comprise all other evidentiary matters.
I admit that there are many cases in which the phrase “motion to suppress” is used to describe other types of motions, but the analysis in Barletta, which focuses on the exclusion of evidence as a sanction for police misconduct strikes me as about right. But see State v. Fewerwerker, 492 N.E.2d 873 (Ohio Ct. App. 1985) (categorizing as a motion to suppress defendant’s motion to prevent witness from testifying on the basis of a privilege); State v. Myers, 625 P.2d 1111 (Kan. 1981) (holding that trial court properly granted a pretrial motion to suppress raising a Confrontation Clause issue). Applying the Barletta standard to the examples discussed above, a motion based on an officer’s failure to accord a DWI defendant her implied consent rights would be a motion to suppress, but most Confrontation Clause objections would not be. Both results appear to be consistent with most of our case law, and arguably to comport with judicial economy (because Confrontation Clause issues will very often be bound up with other evidentiary issues at trial, while concerns about an officer’s investigatory conduct are often stand-alone issues than can be explored in a discrete pretrial hearing).
Even if “motion to suppress” means something like “motion seeking to exclude evidence as a sanction for police misconduct in obtaining it,” there will be some gray areas. For example, if a defendant admits that the police seized an item of physical evidence legally, but contends that they then “lost” or destroyed it before trial in bad faith and that the state therefore should be precluded from introducing testimony about the evidence, is the defendant making a motion to suppress or a motion to exclude? Cf. generally Arizona v. Youngblood, 488 U.S. 51 (1988) (discussing destruction of evidence claims generally). As always, I welcome your thoughts.