Shifting Burdens of Proof in a Motion to Suppress

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Thursday, May 21st, 2015
Shifting Burdens of Proof in a Motion to Suppress

The allocation of burdens in a motion to suppress hearing is a “Choose Your Own Adventure.” Unlike in trial, where we simply add up proof in a linear fashion, a motion to suppress in Texas courts has burdens which are raised, lowered, and/or shifted back and forth based upon small and often trivial details. By decoding the riddle of procedure, you can make sure your client’s motion is decided on the facts and prevent the State from using a procedural escape hatch.

This article discusses the shifting burdens of proof under three different categories of evidence suppression: (1) Constitutional Fourth Amendment motions to suppress; (2) statutory motions to suppress; and (3) motions to suppress purported scientific evidence under Kelly and Daubert.

Burden of Proof in a Constitutional Motion to Suppress

Other than of the presumption of innocence, there are few presumptions in criminal law more powerful than the presumption of Fourth Amendment unreasonableness that attaches to warrantless searches and seizures. See Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Katz v. United Sates, 389 US. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Guerrero-Barajas, 240 F.3d 428 (5th Cir. 2001). This presumption, alone, is always sufficient grounds for suppression when an officer is unable to justify his actions through a showing of probable cause or reasonable suspicion. However, unlike the presumption of innocence, this presumption is not automatically afforded to a criminal defendant in Texas.

In 1970, in the case of Mattei v. State, the Court of Criminal Appeals determined there also exists a presumption of proper police conduct in investigating crime and held that defendant-movants should bear at least some burden in a motion to suppress. Mattei v. State, 455 S.W.2d 761 (Tex. Crim. App. 1970) This conclusion was attributed to two opinions issued by the Fifth Circuit in the wake of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and the newly modified federal exclusionary rule. Mattei, supra, 455 S.W.2d at 765 (citing Rogers v. United States, 330 F.2d 535 (5th Cir. 1964); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970)). Not surprisingly, the authority cited in Mattei fails to make any mention of the at-that-time-recent notion that searches and seizures without a warrant are presumptively unconstitutional. Instead of abandoning the old ways for the new, the Mattei court chose a middle road and allowed both the presumption of unreasonableness in warrantless police conduct and the presumption of proper police conduct to curiously exist side by side.

Summarizing what is still the current status of the law in this area, the Court of Criminal Appeals would later demonstrate that they did indeed intend for both of these presumptions to exist together in harmony. The Court explained:

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the state is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure [citations omitted, emphasis added].

Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986).

Harmonizing these two presumptions in the search and seizure context results in a peculiar proposition of law: a presumption that police always possess a warrant. Despite being contrary to reality in the vast majority of cases at the time of Russell and in the vast majority of cases since, the Court of Criminal Appeals would reaffirm Russell in 2005 as the proper allocation of burdens in a motion to suppress. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App., 2005).

Burden of Proof in a Statutory Motion to Suppress under Tex. Code Crim. Proc. §38.23

A motion to suppress based on a purely statutory violation (e.g., DWI suspect induced to consent to breath test by extra-statutory consequences of refusal) is a completely different adventure. The Texas version of the exclusionary rule, sometimes referred to as a 38.23 motion (see Tex. Code Crim. Proc. Article 38.23), hardly operates in the same fashion as its federal counterpart.

A recent undertaking by the Court of Criminal Appeals to explain the proper execution of a 38.23 motion was in the 2011 case of State v. Robinson. 334 S.W.3d 776 (Tex. Crim. App. 2011). In Robinson, at a hearing on the defendant’s motion to suppress a DWI blood draw, the State insisted on assuming the burden of proof. The Court obliged and required the State to prove that blood was drawn not only in compliance with the defendant’s constitutional rights, but also in accordance with Tex. Transp. Code § 724.017 (statute requiring, among other things, the taking of a blood specimen in a sanitary place). The trial court suppressed the blood not based on a violation of constitutional rights, but rather the State’s failure to show compliance with the statute. The Court of Criminal Appeals reversed, holding that a defendant moving for suppression on the basis of noncompliance with a statute has the burden as the moving party to produce evidence of a statutory violation. Id. at 779.

There is good company for those perplexed by this holding. Judge Price (Robinson dissenting), and to a lesser degree, Judge Cochran (Robinson concurring), both aptly note that at trial, it would be the State as the proponent of evidence who would “bear the burden of proving [the law] was satisfied.” Judge Price writes:

I fail to see what sense it makes to assign the burden of proof differently when a defendant first broaches the issue in a pre-trial motion to suppress rather than waiting until trial to insist that the State be held to its evidentiary predicate.

To whatever extent the Robinson holding encourages defendants to hold on to 38.23 issues until trial, it promotes judicial inefficiency. However, in this regard, Robinson is a fairly anomalous opinion. Rarely has it ever made strategic sense to file a pretrial motion to suppress based on 38.23 because most 38.23 issues focus upon the State laying a proper predicate to the admission of evidence rather than the establishment of a detailed factual record which should be made outside the presence of a jury.

One of the stronger points that could have been addressed in Robinson is why the courts should treat a pretrial 38.23 motion differently than a pretrial motion regarding the admissibility of scientific evidence. Should the courts ever wish to begin reconciling or simplifying all the rules of procedure that apply in motions to suppress, the framework may have been laid in a case discussed below.

Shifting Burdens of Proof in a Motion to Suppress-1

Exclusion of Evidence Based on Tex. R. Evid. 702

In October 2013, the Court of Criminal Appeals issued an opinion in State v. Esparza outlining in detail how a Rule 702 hearing is properly conducted. State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013). Writing for the majority, Judge Price addressed whether an appellate court may consider a newly raised Rule 702 theory to save a trial court’s otherwise erroneous granting of a statutory motion to suppress in which the trial court misallocated the 38.23 burdens of proof. Judge Price wrote:

It is only “[o]nce the party opposing the evidence objects . . . [that] the proponent bears the burden of demonstrating its admissibility.” Allocation of the burden with respect to scientific reliability as a function of Rule 702 should be no different in the context of a pretrial motion to suppress than it is when the issue is raised during the course of trial. Whether at trial or in a pretrial hearing, the State (as proponent of the breath-test results here) can, of course, be made to satisfy its burden to demonstrate reliability. But it is not called upon to satisfy that burden unless and until the appellee (as opponent) has made a specific objection that those test results are scientifically unreliable or (perhaps) until the trial court, in its capacity as the gatekeeper of the admissibility of scientific evidence, should sua sponte call upon it to do so.In this case, as the court of appeals correctly observed, nothing happened at the trial court level to alert the State that the scientific reliability of the breath-test evidence, as a function of Rule 702, was in play at the hearing on the pretrial motion to suppress evidence [emphasis added].

State v. Esparza, supra, 413 S.W.3d at 86–87.

This explanation is far from groundbreaking; it is the same procedure that has been employed since Kelly and Daubert became the standard for admissibility of scientific evidence. The value of the Esparza case is mostly scholarly. A significant portion of the Esparza opinion is dedicated to juxtaposing the procedures in Texas for the three different types of evidence suppression discussed in this article. By doing so, the majority opinion either unintentionally or perhaps passive aggressively demonstrated the absurdity in maintaining three different sets of procedure for nearly identical legal mechanisms.

Perhaps Esparza can serve as a building block in an effort to employ a simplified single standard in all motions to exclude or suppress evidence. But, for now, the “Choose Your Own Adventure” model remains the law of procedure in Texas and will undoubtedly continue to provide no shortage of cautionary tales. Even with a simple understanding of the nuts and bolts of the shifting burdens of proof in a motion to suppress, a criminal practitioner will occasionally be able to exploit his or her opponent’s burden and provide value to clients.

Following is what we, as practitioners, should take away from these cases. The diagram on the facing page sets out the nuts and bolts and provides a quick black letter reference along with some lesser-known provisions of the code that can be quite handy in in any type of motion to suppress hearing.

Texas Code of Criminal Procedure Article 28.01. Pre-Trial

Sec. 1

(6) Motions to suppress evidence—When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;

Texas Code of Criminal Procedure Article 28.02. Order of Argument

The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge.