Challenging the Evidence Against You Before Trial


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Your Guide to Surviving Arrest In Colorado:

Part 4 – Challenging the Evidence Against You Before Trial

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.

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.

If you have been arrested…

Your FREEDOM is potentially at stake. A conviction can have a huge impact on your job, relationships, and your future. You need to act fast.

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.

Frequently Asked Questions

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

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.

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.

Colorado Springs Criminal Defense Attorney Near You

Our team of Colorado Springs criminal defense lawyers has defended clients against all types of criminal and DUI charges and can provide you with the staunch advocacy you need. Right Law Group is committed to diligently defending your legal concerns.

A criminal charge — no matter what it is — is serious. You want an experienced Colorado Springs criminal law attorney who can offer the legal support you need. We are happy to provide an initial legal consultation at our Colorado Springs office or remotely via video call. 

Contact us today for a FREE consultation.


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