131.2Suppression Motions

Hearing & Burden of Proof
Last Updated: 11/16/20

Key Concepts

  • A motion to suppress may be summarily denied if it fails to comply with the statutory requirements or state valid grounds for relief.
  • If the motion is not summarily denied, the court must hold a hearing outside the presence of the jury. Witnesses must testify under oath, but most other rules of evidence do not apply.
  • The state has the burden of showing by a preponderance of the evidence that the challenged evidence is admissible.

Summary Grant or Denial of Motion

The defendant’s motion may be summarily denied if it is untimely or not accompanied by an affidavit. See G.S. 15A-977(c); State v. Harris, 71 N.C. App. 141 (1984); State v. Langdon, 94 N.C. App. 354 (1989); State v. Pearson, 131 N.C. App. 315 (1998) (defendant failed to file affidavit with motion to suppress chemical test result). An affidavit is not required, however, when the defendant is permitted to make a suppression motion during trial. State v. Roper, 328 N.C. 337 (1991). Summary denial is also proper if the motion does not allege a legal basis for suppression, see G.S. 15A-977(c)(1), or if the affidavit fails, as a matter of law, to support the grounds alleged, see G.S. 15A-977(c)(2). Summary denial is in the court’s discretion.  The judge may decide to grant a hearing on the motion even if it is facially insufficient. See State v. O’Connor, 222 N.C. App. 235 (2012); State v. Harvey, 78 N.C. App. 235 (1985).

Practice Pointer

Special case – Franks hearing
A defendant may assert that a search warrant was invalid because the applicant gave false information or made a material omission of facts amounting to a falsehood to the issuing judicial official, and that without this falsehood the affidavit would have failed to establish probable cause to support the warrant. See generally Franks v. Delaware, 438 U.S. 154 (1978); G.S. 15A-978.
Cases interpreting Franks have held that the defendant is required to make a “substantial preliminary showing” as to the first prong - that the affiant knowingly or recklessly made a false statement in the affidavit - before the defendant is entitled to have a hearing on the claim. See, e.g., State v. Pelham, 164 N.C. App. 70 (2004). Mere contradictory evidence, or a denial by the defendant of the facts alleged in the affidavit, does not meet this threshold because it does not establish that the affiant failed to act in good faith in providing the information; therefore, such a motion should be denied summarily without holding a hearing. See State v. Langdon, 94 N.C. App. 354 (1989).

Alternatively, the motion must be summarily granted if it is in proper form, alleges grounds that require suppression, and the state concedes the allegations, see G.S. 15A-977(b)(1) or the state stipulates that it will not use the contested evidence, see G.S. 15A-977(b)(2); State v. Wilson, 225 N.C. App. 246 (2013).

Holding a Hearing on the Motion

If the motion cannot be resolved by summary ruling, the court must hold a hearing. G.S. 15A-977(d). The hearing may be held “before trial, on the date set for arraignment, on the date set for trial before the jury is impaneled, or during trial.” G.S. 15A-976(c). The state must be granted reasonable time to procure witnesses or evidence and to conduct research required to defend against the suppression motion. As a practical matter, the hearing should be held in advance of the trial date, so that the state has an opportunity to appeal from an adverse ruling. See G.S. 15A-977, Official Commentary.

If a hearing on the suppression motion is held, it must be conducted outside the presence of the jury. G.S. 15A-977(e). Both sides may present evidence and testimony, and all witnesses (including the defendant, if he testifies) must be placed under oath. See G.S. 15A-977(d). If the defendant testifies, he or she is subject to cross-examination, but only as it relates to the motion and not “as to other issues in the case.” G.S. 8C-1, Rule 104(d). The other rules of evidence, except those as to privilege, do not apply at the hearing (i.e., hearsay is admissible). See G.S. 8C-1, Rule 104(a), 1101(b); State v. Ingram, 242 N.C. App. 173 (2015) (rejecting defendant’s argument that trial judge improperly considered hearsay evidence at a suppression hearing and noting “that Rules 104(a) and 1101(b)(1) of the North Carolina Evidence Code state explicitly the rules of evidence do not apply in suppression hearings”).

If the defendant chooses to testify at a suppression hearing, the state may not later use that testimony as part of its case in chief at trial, but the state may use it to impeach the defendant if he testifies at trial. See Simmons v. U.S., 390 U.S. 377 (1968); State v. Bracey, 303 N.C. 112 (1981). If the defendant does not testify, the trial court may not rely on allegations contained only in a defendant’s G.S. 15A-977(a) affidavit when making its findings of fact in connection with a motion to suppress. State v. Salinas, 366 N.C. 119 (2012).

Burden of Proof

The “burden of production” for a motion to suppress is initially on the defendant to show that the motion is timely, supported by an affidavit, and otherwise complies with the statutory requirements. See, e.g., State v. Jones, 157 N.C. App. 110 (2003).

Once the defendant has satisfied this initial showing, the burden shifts to the state to establish by a preponderance of the evidence that the challenged evidence is admissible. See, e.g., State v. Breeden, 306 N.C. 533 (1982); State v. Nowell, 144 N.C. App. 636 (2001); State v. Barnes, 158 N.C. App. 606 (2003); State v. Powell, 253 N.C. App. 590 (2017). For example, on a motion to suppress a custodial statement, the state would bear the burden of showing by a preponderance of the evidence that the statement was voluntarily made, after the defendant was fully informed of, and waived, his Miranda rights. See State v. Cheek, 307 N.C. 552 (1983); State v. Johnson, 304 N.C. 680 (1982).

Some North Carolina cases suggest that if the officers were acting pursuant to a search warrant that appears valid on its face, then the defendant bears the burden of showing why the evidence is inadmissible. See, e.g., State v. Walker, 70 N.C. App. 403 (1984) (“If defendant had evidence to rebut the presumption of validity of the warrant, it was his obligation to go forward with his evidence”); State v. Cooke, 306 N.C. 132 (1982) (state bears the burden of showing admissibility of warrantless search – indicating a distinction with searches pursuant to a warrant).

However, the greater weight of authority suggests that the burden of proof remains on the state, even in cases involving a facially valid warrant. See, e.g., State v. Gibson, 32 N.C. App. 584 (1977) (even with an apparently valid warrant, “the State still has the burden of proving that the evidence was lawfully obtained”); State v. Hicks, 60 N.C. App. 116 (1982) (at a “hearing [on a motion to suppress,] the burden of proof is on the State”).

Practice Pointer

Who goes first?
The defendant filed the motion. The state has the burden of proof. Which side goes first in calling witnesses and presenting evidence? The North Carolina Supreme Court has explained that:
Although the party who has the burden of proof is generally the party who first puts on evidence, the order of presentation at trial is a rule of practice, not of law, and it may be departed from whenever the court, in its discretion, considers it necessary to promote justice. Since the order of proof in a criminal trial is largely within the discretion of the trial judge, inversion of the order is not grounds for reversal unless the court abuses its discretion and defendant establishes that he was prejudiced thereby.
State v. Temple, 302 N.C. 1, 4-5 (1981) (finding no error where defendant was ordered to present evidence first at hearing on a motion to suppress); State v. Williams, 225 N.C. App. 636 (2013) (finding that the fact that defendant went first at suppression hearing did not improperly “shift the burden” to defendant). In practice, the judge will usually call upon the state to present its case first, but it should not be considered error for the court to have the defense to go first, particularly if the parties agree that it makes more sense to do so. For example, this might occur in a case where the only issue in dispute hinges on testimony that will come from a witness for the defense.

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 14, and “Motions to Suppress Evidence in Superior Court,” by Jeff Welty, January 2017.