Many defendants do not realize that regardless of the perceived strength of the evidence against them, there may be a basis to have all of the evidence thrown out and their case dismissed. This is because if evidence is illegally acquired it cannot be used in court if a motion to suppress physical evidence is successfully challenged.
However, with criminal procedure becoming increasingly complex, especially in the realm of electronic surveillance, very few attorneys are capable of spotting all of the search and due process issues that a criminal case presents. Even fewer attorneys have the skills to put together a winning strategy at a suppression hearing.
The first and most widely-overlooked step in winning a suppression motion is writing a brief that raises enough of a material factual dispute to earn the right to a hearing. At the same time, it is important to be sufficiently vague in the alleged facts so that the prosecutor and state’s witnesses do not know exactly how you are going to go about winning the hearing. This is a most delicate balance because if you are too vague, the trial judge can deny the motion without a hearing. However, if you are too specific, the prosecutor will no doubt inform their witnesses of what the defense is alleging and the witnesses will mold their testimony accordingly to defeat the defense claims.
The relevant case law addressing the required specificity of legal briefs begins with State v. Hewins. Note that “Law Division” cases, i.e. cases from county superior courts are not binding on other courts, but are considered to be persuasive authority.
On defendant’s motion to suppress evidence seized by the State in a warrantless search pursuant to R. 3:5-7. Prior to the hearing the court reviewed the State’s brief, including a statement of facts. Defendant’s answering brief contained a counter-statement of facts consisting solely of the assertion that the warrantless search was illegal. State v. Hewins, 166 N.J. Super. 210, 212 (Law Div. 1979). After defendant refused to expand his counter-statement of facts, the court ruled that no testimony should be taken, and decided the motion on the briefs supplemented by oral argument. The novel issue raised herein is whether defendant’s allegation that the search was illegal is sufficient to give rise to a material factual dispute requiring the court to take oral testimony under R. 3:5-7(c).
It should be noted that the court offered defendant leave to expand his statement of facts before determining whether or not to take testimony. Hewins, at 214. Defendant elected not to do so, but rather relied on the statement of his attorney that defendant did not admit the truth of the State’s allegations. This contention does not raise a dispute as to material fact. 2 If it did, R. 3:5-7(b) and (c) would be emasculated.
The absence of any meaningful statement of facts by defendant prejudices the State in its preparation for the motion, and also hinders the court’s research in advance of the hearing. The rule also seeks to avoid the time-consuming taking of testimony solely for the purpose of affording defense counsel additional discovery, and an opportunity to examine the State’s witnesses in advance of trial. The motion to suppress is available to defendant in order to resolve questions concerning the validity of a search and/or seizure; it is not just another discovery device. As the court observed in Cohen v. United States, 378 F.2d 751 (9 Cir. 1967).
Suppression may be improper for a reason of law appearing on the face of the motion. Hewins, at 215. Moreover, factual allegations which are general and conclusory or based upon suspicion and conjecture will not suffice, for “claims that taint attaches to any portion of the Government’s case must satisfy the trial court with their solidity and not be merely a means of eliciting what is in the Government’s possession before its submission to the jury.” Nardone v. United States, 308 U.S. 338, 342 (1939).
However, if the opposing party offers no affidavits or matter in opposition, or only facts which are immaterial or of an insubstantial nature, a mere scintilla, fanciful, frivolous, gauzy or merely suspicious, he will not be heard to complain if the court grants summary judgment, taking as true the statement of uncontradicted facts in the papers relied upon by the moving party, such papers themselves not otherwise showing the existence of an issue of material fact.
The one binding Appellate Division decision addressing the issue of the required specificity in legal briefs is State v. Walker, 285 A.2d 37, 117 N.J.Super. 397 (N.J. Super. A.D., 1971). The Walker Court held:
We granted leave to appeal from an order dismissing a motion to suppress evidence on the ground that no brief accompanied the motion, although the motion was timely filed. Walker, at 398. We are in disagreement with the asserted proposition that defendants filing motions to suppress may routinely delay filing an Accompanying brief on the facts and the law, as required by the rule, R. 3:5–7(a), on the claimed justification that advance notice to the State of his factual contentions puts a defendant in an unfair position. The bar is herewith placed on notice that the rule is intended, ordinarily, to be complied with as written.