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A motion to suppress evidence is a motion to suppress evidence that has been illegally obtained as a result of an illegal search and seizure by government agents.  

If you have been arrested or your property has been seized you need an experienced Attorney to file motions do investigation, and determine if a motion to suppress is applicable to your case.  

As a former Military Policeman, Deputy Probation officer, Deputy District Attorney, with more than 13 years of experience in Criminal Law, and someone that has taught Legal Evidence at the Junior College level, I know the evidence code and can help you with your case.  There are several condiderations we look at when deciding whether to file a motion to suppress. 

1. Was there a search by a government agent.  This can be a more difficult question than it may look like at first.  

because for the search to be illegal there must be conduct by some government agent for example a police officer is a government agent.

2. Was there a search warrant.  If there is a search warrant than the question is whether that warrant was valid.   

a warrant must be based upon probable cause and be reasonably specific, and not vague or overbroad.  

but lets first look at a search without a warrant. 

For a search without a warrant to be valid there must be some firmly rooted exception to the warrant requirement. 


Emergency search or seizure.

A search of you person and clothing as a result of an arrest. 

A search of your automobile ( police must have probable cause for this search). 


For the purpose of this discussion lets say I or whomever you have as your Attorney decides to file a motion to suppress evidence.  It would likely go something like this.

First he would read the police report, and find there was no warrant for a search and he does not belive the emergency situation that the police have related in your report. 

First, a motion must be written and served upon the District Attorney within 10 court days of the date of the calendared motion.  

Next, the officer will be called into court and both the District Attorney and the Attorney for the accused are allowed to ask questions of the officer. 

Usually there will be some guidelines to these questions based upon the moving papers of the accused and the response filed by the prosecution.


The Judge will consider both the argument of counsel and the moving papers and the testimony.  He will then make a ruling as to the admissibility of the evidene.  If the evidence is suppresed by the Judge that means that the evidence cannot be used by the prosecution to prove your guilt it is suppressed.  The reason for this is to assure lawfurl police conduct if the officer knows that evidence will not be admitted into court he or she will be less likely to introduce illegal means to obtain the evidence.  

We will save the fruit of the poisonous tree doctrine for a later discussion.  This is a tricky doctrine and needs more time.  

Many times the legality of a search is determined by the judge determining if the facts were sufficient to assume there was an emergency situation happening. 

example the police arrive at a home due to a call by a neighbor they do not have a warrant.  However, upon arrival they begin to hear screaming and yelling and someone sounding as if they are very scared.   They knock on the door several times and no one answers, they then hear a thud.  This could be an emergency due to the thud and the fact someone could be in danger.  If the officers enter and find drugs, a women hurt, and other indicia of drug sales most likely all of these items would be admissible.  This is becuase the Judge would most likely find under those circumstances that an emergency was occurring and the police needed to enter to prevent someone being hurt. 

If you have any other questions please give us a call this is a basic overview of motions to suppress and some deal with very difficult issues. 







Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418