State v. Fitterer11/5/2002
court order or local rule such affidavits are not necessary . . . ."). In North Dakota, motions to suppress evidence require neither exquisite particularity nor supporting affidavits or other evidence. N.D.R.Crim.P. 47. Rule 47, N.D.R.Crim.P., states:
An application to the court for an order shall be made by motion which, unless made during a hearing or trial, shall be made in writing, state the grounds therefor, and set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The motion may be supported by affidavit.
According to the explanatory note, Rule 47, N.D.R.Crim.P., is an adaptation of Rule 47 of the Federal Rules of Criminal Procedure. N.D.R.Crim.P. 47, Explanatory Note. The language is based on N.D.R.Civ.P. 7(b), with two exceptions. N.D.R.Crim.P. 47, Explanatory Note. First, N.D.R.Crim.P. 47, unlike N.D.R.Civ.P. 7(b), does not require the grounds for the motion be stated with particularity, and second, the use of affidavits is permissive. N.D.R.Crim.P. 47, Explanatory Note; United States v. Edgar Jones, 766 F.2d 994, 999 (6th Cir. 1985) (stating Rule 47 does not specify the grounds for the motion be presented with particularity). A moving party "shall serve and file a brief and other supporting papers." N.D.R.Ct 3.2. However, N.D.R.Ct. 1.1 "makes Rule 3.2 apply to all motion practice unless there is a conflicting rule governing the matter." Duncklee v. Wills, 542 N.W.2d 739, 741 (N.D. 1996). Because N.D.R.Crim.P. 47 conflicts with N.D.R.Ct. 3.2, Rule 47 controls the case at bar. See Duncklee, at 741.
Furthermore, the rule is not intended to permit "speaking motions." N.D.R.Crim.P. 47, Explanatory Note; United States v. William Allan Jones, 542 F.2d 661, 665 n.7 (6th Cir. 1976) (stating Rule 47 does not sanction the use of "speaking motions"). "Speaking motions" are motions supported by affidavits attempting to establish facts that are properly to be established only at trial or at a hearing where evidence is introduced. N.D.R.Crim.P. 47, Explanatory Note (citing Advisory Committee Note to Fed.R.Crim.P. 47). We conclude Fitterer was not required to present an affidavit or evidence in his motion to suppress.
A defendant's motion, however, must provide adequate notice to the trial court and the prosecution of the issues being raised. United States v. Love, 189 F.R.D. 557, 558-59 (D.Minn. 1999) (stating while the Eighth Circuit "has not articulated a general rule allocating the burden of proof in suppression motions," the District of Minnesota "has for its convenience followed the practice of placing the burden of raising suppression issues on the defendant . . . ."); People v. Williams, 973 P.2d 52, 58 (Cal. 1999) (stating the defendant bears the burden of raising an issue in a motion to suppress). To satisfy N.D.R.Crim.P. 47, Fitterer's motion need only provide adequate notice of the issues raised to the trial court and the prosecution. See Love, 189 F.R.D. at 559.
Our case law confirms Fitterer need only provide adequate notice of the issues raised in order to reach a hearing on his motion. As we have held, when a defendant challenges the validity of a checkpoint stop or how it was conducted, the State is on notice it has to produce evidence such as checkpoint guidelines, protocol, and testimony from officers verifying the checkpoint was validly performed. Uhden, 513 N.W.2d at 379; State v. Everson, 474 N.W.2d 695, 700 (N.D. 1991); State v. Wetzel, 456 N.W.2d 115, 118-19 (N.D. 1990); and State v. Goehring, 374 N.W.2d 882, 888 (N.D. 1985). When Fitterer moved to suppress evidence obtained because he was not stopped for a violation or safety defect an
Page 1 2 3 North Dakota DUI Attorneys
DUI Lawyers
|