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Testing the rules of engagement

Lawyers spar over early suppression motions

DuelA recent opinion by Attorney General Ken Cuccinelli highlights tension between Virginia prosecutors and defense lawyers over the rules of engagement when a defendant plans to challenge the basis of a traffic stop or a police search in general district court.

In his opinion, Cuccinelli attacks the premise of an inquiry from Del. Scott A. Surovell, D-Fairfax. Cuccinelli said Virginia law does not authorize a defense lawyer to file a motion to suppress evidence without a factual basis.

Cuccinelli goes on to say that – in general district court – the state is permitted to try to force a defendant’s hand on a suppression motion by asking a judge to order a written bill of particulars.

Suppression motions in general district court commonly arise in driving-while-intoxicated or drug possession cases, often involving police traffic stops. Surovell’s Northern Virginia practice includes DUI defense.

In a suppression motion, a defendant asks a judge to keep out evidence from an allegedly illegal search or seizure. A defense lawyer, for instance, might question whether police had a valid reason to stop the defendant’s car. If the judge agrees the stop was improper, the prosecutor is usually left without enough evidence to go to trial.

Who goes first?

In their exchange of letters, Surovell and Cuccinelli clash over which side has to show its hand first.

Citing a legal ethics rule, Surovell said a defense lawyer is “not required to have any factual basis whatsoever” to file a suppression motion, but should be allowed to put the state to its burden of proof.

Surovell then asked Cuccinelli to clarify whether the state can request a bill of particulars to get factual information from a criminal defendant in general district court in connection with a written suppression motion.

Cuccinelli took issue with Surovell’s assumption that a defendant can file a suppression motion without any factual basis.

“Virginia law does not authorize a criminal defense attorney to file motions for which he does not have a good faith basis,” Cuccinelli said in his response.

Moreover, Virginia law allows the state to ask for details about the defendant’s basis for a suppression motion in general district court, Cuccinelli said.

Cuccinelli said Virginia law provides different rules for bills of particulars depending on whether a case is in general district or in circuit court. Unlike in circuit court, the prosecutor can ask for a bill of particulars in district court, he said.

Routine suppression motions filed

The disagreement between Surovell and Cuccinelli comes amid a “spat” over suppression motions that has been “boiling over for some time” in some Northern Virginia localities, according to one observer.

Jonathan L. Phillips of Fairfax said some defense attorneys have been filing “generic” suppression motions in DUI cases to avoid the possibility of having the defense foreclosed, even though a Virginia statute, Va. Code § 19.2-266.2, appears to make it clear that a suppression motion can be raised in district court without advance notice.

Phillips, a former Fairfax County prosecutor who is now a defense attorney, said district courts in Northern Virginia have different practices for dealing with often time-consuming suppression motions, and there has been some friction over proper procedure. Judges have expressed frustration with surprise motions that prolong the proceedings, he said.

Since the state always has the burden of proof in any criminal case, Surovell said he thought it was unconstitutional to force defendants to justify a suppression motion. Demanding a factual basis for a challenge to a traffic stop also could require the attorney to reveal information disclosed in confidence by the client, Surovell said in an interview.

“The attorney general’s opinion is wrong on a whole number of legal levels,” Surovell said.

Defense can be asked to show facts, lawyers say

Several attorneys asked to comment on the Surovell-Cuccinelli dispute agreed with Surovell that a defendant does not give up his right to challenge a search or seizure in district court by failing to file a written motion.

But the experts contacted all agreed with Cuccinelli that a defendant can be called on to show at least some factual basis for a suppression motion in district court.

Many jurisdictions require a preliminary disclosure of facts for a defendant’s pretrial suppression motion, according to Prof. Frederic I. Lederer at the William & Mary law school. The requirement has been held constitutional, he said.

The attorney-client privilege does not come into play, Lederer said in an email, because the defense counsel is not being forced by the state to do anything. The choice of what information to disclose remains with the defense.

“I cannot image any court holding you have a right to file motions without having any factual basis,” said Fairfax County Commonwealth’s Attorney Raymond F. Morrogh, the president of the Virginia Association of Commonwealth’s Attorneys. “I think we owe it to judges to give them the most accurate information we can and let the judge make an informed opinion.”

Experts: Circuit court is better forum

Other attorneys suggest defense lawyers might be well advised to skip the suppression motion altogether at the district court level and take their search and seizure objections to the greener pastures of circuit court.

“As a tactical matter, I am not sure pursuing suppression motions in the general district court is wise,” said B. Leigh Drewry of Lynchburg, president of the Virginia Association of Criminal Defense Lawyers.

Drewry said his strategy for a high-stakes DUI case might be to treat the district court trial as a preliminary hearing, hiring a court reporter and gleaning as much discovery as possible without showing his own cards. Then, he said, he would appeal the case to circuit court where the defense can seek a bill of particulars but the state cannot.

Prosecutor Kenneth F. Lammers of Wise County agrees the state’s lawyers have a distinct disadvantage in circuit court. “It’s a flaw in the system” he said. “It’s just something that slipped through.”

Defense need show only standing

And even though a defendant may have to show the factual basis for a suppression motion in district court, Lammers says it’s not a heavy burden for the defense lawyer. A defendant challenging a search or seizure need only show that he has standing – that he was entitled to his right to privacy. If a search ensued, the defendant also would have to assert that no search warrant was obtained.

So, according to Lammers, a typical factual basis for a suppression motion might be simply, “John Smith was the owner and driver of the searched car, and there was no search warrant prior to the search, said facts to be proven at Bar through [arresting officer].”

The takeaway from the suppression dispute might be to know your local court, said Phillips. That might mean learning how a particular general district judge likes to handle suppression motions.

Drewry discouraged any use of boilerplate motions.

“If you just file a routine motion, you’re not helping your client,” he said.

The controversy over suppression motions comes as the Supreme Court of Virginia considers proposed changes in the rules for criminal discovery. A study panel recommended requiring prosecution disclosure of police reports, among other changes.

The criminal discovery issue highlighted a sharp division between advocates of more open discovery and state prosecutors, who say the system works well as it is.

The proposed discovery revisions could be referred to the Advisory Committee on Rules of Court which reports to the Judicial Council of Virginia.

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