CA4: A motion to suppress raised after the government rested in a jury trial is a waiver; early notice is vital

A motion to suppress raised after the government rested in a jury trial is a waiver. The pretrial filing rule exists for important reasons of notice to the parties. United States v. Moore, 2014 U.S. App. LEXIS 19648 (4th Cir. October 10, 2014):

Moore contends that the district court did not find the motion to suppress evidence waived but rather ruled – incorrectly, in his view — on the merits that no Fourth Amendment violation had occurred. He argues that the officer lacked reasonable suspicion to stop him and seeks to suppress all evidence flowing from that initial stop, including items recovered during the search of the apartment — a search that, in his view, was not sufficiently attenuated from the earlier illegality. See Segura v. United States, 468 U.S. 796, 804 (1984).

The Federal Rules of Criminal Procedure require parties to raise motions to suppress evidence before trial. Fed. R. Crim. P. 12(b)(3)(C). The failure to file a suppression motion by the specified pretrial deadline operates as a waiver unless the court grants relief from the waiver “[f]or good cause.” Fed. R. Crim. P. 12(e). See United States v. Chavez, 902 F.2d 259 (4th Cir. 1990).

The rule that motions to suppress are waived unless raised before trial or delayed for good cause is not just some procedural tripwire set to ensnare unwary defendants. Requiring parties to make suppression motions before rather than during or at the end of trial greatly reduces the risk that such motions may catch opposing litigants unprepared. Parties deserve to know at the beginning of trial, to the extent possible, what evidence is to be excluded or included. Often the evidence sought to be suppressed is so probative that if it is excluded, the indictment may be dismissed. By the same token, a defendant who knows what evidence will be admitted is better able to prepare his defense accordingly or, in many cases, to choose to enter a plea instead. Waiting until the end of trial deprives both sides of the opportunity to adequately prepare and make informed decisions about trial strategy based on the admitted evidence.

It is not only the litigants who are harmed by tardy suppression motions. Especially where a jury is involved, introducing such motions during trial, not to mention immediately before closing arguments, completely disrupts the rhythm of the proceedings. Trials move typically from presentations to arguments to instructions and deliberations, and suppression motions during this progression can come literally out of the blue. Evidence must be taken, and witnesses may need to be rounded up in order to properly determine whether suppression is required. It puts the fact finder — jury or judge — on unwanted hold until the suppression hearing is held.

Furthermore, by the time of closing arguments evidence has been introduced, including quite possibly the evidence the defendant seeks to suppress. If the trial court determines that the evidence should not have been introduced, it must ask the fact finder to “unring the bell” and ignore evidence it has heard that is in all likelihood highly prejudicial to the defendant. And inasmuch as jeopardy has attached, a ruling suppressing the evidence may effectively deprive the government of the right to appeal it. See 18 U.S.C. § 3731 (providing interlocutory appeals of suppression orders where defendant has not been placed in jeopardy). For all of the above reasons, the pretrial filing of suppression motions is greatly to be desired.