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Challenging the Evidence Against You Before Trial

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One of the many services your criminal defense attorney can provide for you is to challenge the evidence that prosecutors have against you. A common way of challenging evidence before trial is through a motion to suppress.

Governing Principles

The U.S. Constitution conveys a number of rights on individuals pertaining specifically to how the government is able to gather evidence when investigating a crime. If your Constitutional rights were violated during any part of the investigation, your attorney will seek to have the evidence gained during the commission of that portion of the investigation kept out of court and out of the consideration of your guilt or innocence.

What is a Motion to Suppress?

A “motion” is usually a written request filed in court. A “motion to suppress” is a written request asking the court to toss out or remove from a jury’s consideration evidence that was gained improperly.

What Types of Evidence Can Be Suppressed?

Any evidence that was wrongfully obtained is subject to suppression, including physical evidence such as weapons, clothing, or drug paraphernalia as well as testimonial evidence, such as a statement you gave to police officers during the investigation.

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What Police Actions Might Result in Evidence Being Unlawfully Obtained?

There are several police actions that can result in evidence being unlawfully obtained, such as:

  • Improper procedures regarding the search warrant, such as obtaining evidence without a warrant in a circumstance where a warrant would be required; improperly executing the warrant or having a defective warrant; the police gathered evidence while illegally on a property; or the search went beyond the items specified in the warrant.
  • Unlawful out-of-court identification, which occurs when the process used to identify you as the suspect in a lineup is flawed.
  • Custodial issues, which occur when investigators fail to use the proper procedure for collecting and storing evidence.
  • Unlawful interrogation, such as failing to read you your rights, continuing to interrogate you after you have requested an attorney, or you were threatened with physical force during the investigation.

How Does a Motion to Suppress Work?

In order to determine whether there is a need to file a motion to suppress, your attorney will interview you to understand the actions the officers took during your investigation. Your attorney can also interview the officers and other witnesses, as well as review the officers’ personnel files to look for past investigatory misconduct. If there are circumstances in which your rights were violated during the investigation, your attorney will file the motion and a hearing will be held.

What Happens if I Win the Motion to Suppress?

If you win the motion to suppress, the evidence that was the subject of the motion will no longer be available for the prosecution to use in litigating your case.

What Happens if I Lose the Motion to Suppress?

If you lose the motion to suppress, your case will continue moving forward and your attorney will prepare your defense with an understanding of the evidence the prosecution plans to use against you.

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Common Fact Patterns and Examples

Here are some examples of how a motion to suppress can be used.

Evidence Obtained from an Investigative Stop

Example: Patrol of a “High Crime” Neighborhood. You and a group of your friends are stopped and searched while spending time on a friend’s porch in a high-crime neighborhood. During the search of you and your friends, you are found to be in possession of a gun.

  • Questions Your Lawyer Might Ask During Your Interview: How did the officer ask you to stop? What was the tone used, and did the officer display a weapon? Were you alone when the stop occurred? What time of day was it, and where were you when the stop occurred? Was there a reason to suspect you of committing a crime or believe that you had information about one?
  • Cross-Examination: Your attorney will ask leading questions about the period of time in which the officers determined you had the gun to determine whether officers had a valid reason to search you for one. The questions will be designed to show that the police did not have a reasonable suspicion to stop you.
  • Argument: The evidence of the gun should be suppressed because the officers did not have just cause to search you for a gun.

Evidence Obtained from a Car Search

Example: Stop for Equipment Violation; Search of Car Uncovers Drugs

  • Questions Your Lawyer Might Ask During Your Interview: Who owned the vehicle? Were you alone or with someone when the search occurred? Were you given a ticket? Did you feel that you could leave the scene? Was there anything unlawful in plain view inside your car?
  • Cross-Examination: Your attorney will ask leading questions related to how and why the officer stopped you and the questions will be designed to show that  they did not follow the proper procedure for searching your car.
  • Argument: Evidence should be suppressed because the officer did not have a valid reason to search the car as the driver was compliant and not in an area of the vehicle in which a weapon could be grabbed and used.

Evidence Obtained During a Home Search

Example 1: Consent Coerced by Police Lie

  • Questions Your Lawyer Might Ask During Your Interview: How was the search conducted? What time of the day did the search occur? Was consent voluntarily given?
  • Cross-Examination:  My client did not understand that they could refuse to answer questions, correct? So you lied to my client in order to get him to give you information You did not tell my client the truth about why you were questioning her? My client only agreed to the search because you said you would get a warrant if they did not answer your questions, correct?
  • Argument: You only agreed to the search because you were told that the police would come back with a warrant if you didn’t.

Example 2: Scope of Consent Limited; Consent Revoked

  • Questions Your Lawyer Might Ask During Your Interview: How was the search conducted? What time of the day did the search occur? Was consent voluntarily given?
  • Cross-Examination: Your attorney will ask questions pertaining to what specifically the homeowner consented to the officers searching and the questions will be designed to show that the officers should have stopped searching when you revoked your consent.
  • Argument: The Constitution allows property owners consenting to a search of the property to limit what they permit the officers to search. Any evidence outside of the scope of the search should be suppressed.

Evidence Obtained During a Police Interrogation

Example: Interrogation at Police Station; No Miranda

  • Questions Your Lawyer Might Ask During Your Interview: Your lawyer will want to know the details of whether you were read your rights, how long you were detained, and whether offers attempted to continue interrogating you after your request for an attorney.
  • Cross-Examination: Your lawyer will ask the investigating officers for details about the investigation, their purpose for interrogating you, whether your rights were read and when they were read. These questions will be designed to show that the police did not properly advise you of your right not to answer.
  • Argument: Evidence should be suppressed because the officer failed to advise you of your rights before interrogating you, with or without an arrest involved.

Colorado criminal procedure

  • Arrest or

    Arrest or

    The process begins with either an arrest or a summons. The accused is either arrested or served with paperwork summoning them to appear in court. During an arrest, Miranda rights may or may not be read to you. Officers are only required to recite your rights if they intend to question you about potentially incriminating things.

  • Bond Hearing

    Bond Hearing

    In most cases, you're entitled to have a reasonable bond set after you've been arrested. In situations involving domestic violence, the police will request input from the victim before setting a bond. Bonds are set to ensure that a person appears in court at their court dates. If they don’t show up, they forfeit the money that was paid for the bond.

  • Advisement of

    Advisement of

    Whether you are arrested or given a summons to appear, the court must make sure you understand what crimes you are being accused of committing. This is called advisement of charges. The District Attorney will detail the specific charges against you, and the Judge has to make sure you understand what possible penalties are associated with that charge in the state.

  • Preliminary Hearing
    (for Higher Felony

    Preliminary Hearing
    (for Higher Felony

    A preliminary hearing is a way for your defense attorney to challenge the District Attorney’s right to bring charges against you by making them prove that there is reason to believe you committed a crime. The Judge is not deciding your guilt or innocence, but rather whether or not there is probable cause to charge you with the crime in question.

  • Pretrial Conference /

    Pretrial Conference /

    This court date comes after your attorney has reviewed all of the reports and evidence in your case. Here’s where your attorney will engage in plea negotiations with the DA. If they can reach an agreement on the case, you may be able to take a plea bargain. If they cannot reach a resolution, your case will be set for an arraignment or trial date.

  • Arraignment


    An arraignment is the final date for you to decide how you choose to plea. Guilty or not guilty. If you plead guilty, then the case is set for a sentencing date. If you plead not guilty, you and your attorney will then set the case for trial.

  • Motions Hearing

    Motions Hearing

    A motion hearing is when an attorney makes a request that requires a decision from the judge. For example, motions to suppress evidence or statements. These motions can limit the information that goes before a jury if it benefits your case, and there are legal grounds for doing so.

  • Pretrial Readiness

    Pretrial Readiness

    A pretrial readiness conference is held at some point before trial. It usually is held about a week to a month before the date trial is set to begin. This court date ensures everyone is ready to go to trial on the set date. It is also a time for lawyers to bring up any issues they may have to be addressed before the day of trial.

  • Jury Trial

    Jury Trial

    After a jury is selected for trial, the District Attorney’s responsibility is to present the case to the jury. The DA must prove beyond a reasonable doubt that you are guilty of the crime. Otherwise, the jury must find you innocent. Your attorney will be able to cross-examine all of the witnesses, present evidence, and ultimately help you navigate this process.

  • Sentencing


    At sentencing, the Judge must decide the appropriate legal penalty for the crime you plead guilty. The Judge’s decision is based on the listed penalties for the specific charge, recommendations from the presentence investigation, your criminal history, as well as statements made at the sentencing by the District Attorney, your attorney, you, and any named victims of the crime.

What is the sentence for misdemeanors in Colorado?

  • Class 1

  • 6 to 18 months in county jail, and/or
  • $500 to $5,000 in fines
  • For extraordinary risk class 1 misdemeanors, the maximum jail sentence is 24 months.
  • For 3rd-degree assault (CRS 18-3-204), the maximum sentence can be 48 months if the victim was on duty as a:
    • Peace officer,
    • Emergency medical provider,
    • Firefighter, or
    • Mental health professional at the Department of Human Services.
  • Class 2

  • 3 to 12 months in county jail, and/or
  • $250 to $1,000 in fines

What are Colorado felony penalties?

  • Class 1

  • Life imprisonment
  • No Colorado crime carries the death penalty.
  • Class 2

  • 8 – 24 years in Colorado State Prison, and/or
  • $5,000 – $1,000,000
  • 5 years of mandatory parole if the offense is a crime of violence. Otherwise, 3 years of mandatory parole.
  • Class 3

  • 4-12 years in prison
  • Fines of up to $750,000 but not less than $3,000
  • 3 years of parole
  • Class 4

  • 2 – 6 years in prison, and/or
  • $2,000 – $500,000
  • 3 years of mandatory parole
  • For extraordinary risk class 4 felonies, the maximum sentence is 8 years in prison.
  • Class 5

  • 1 – 3 years in prison, and/or
  • $1,000 – $100,000
  • 2 years of mandatory parole
  • For extraordinary risk class 5 felonies, the maximum sentence is 4 years in prison.
  • Class 6

  • 1 – 18 months years in prison, and/or
  • $1,000 – $100,000
  • 1 year of mandatory parole
  • For extraordinary risk class 6 felonies, the maximum sentence is 2 years in prison.



Colorado Springs Criminal Defense Attorney

At Right Law Group, we understand the stress you are under. Our Criminal Defense Law Firm is here to guide you down the right path to your legal challenge. Whether you are facing your first DUI, a drug charge, need a restraining order, or are facing another type of criminal charge, our firm is committed to your well-being and protecting your rights the right way.

What are the requirements for evidence to be allowed into trial?

In order for evidence to be allowed at trial (or “admissible”) it needs to meet the following criteria:

  • Relevant: meaning that it must be specifically related to the case at hand
  • Material: meaning that it must be used to prove or disprove a disputed fact within the case
  • Competent: meaning it must comply with the notions of reliability

What is the most common reason for evidence to be excluded from trial?

The most common reasons that evidence may be excluded from a trial generally involve how the evidence was collected, or if it will confuse, mislead, or unfairly prejudice the jurors.

Who has the burden in a motion to suppress?

When trying to suppress evidence in a case, the burden of proof will fall on the party looking to suppress it. In general, this means that it would be the defendant’s responsibility to prove that the evidence the prosecution found is inadmissible.

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