 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hill6/23/2005
ant, Michael Patrick Hill, by and through his undersigned counsel of record, and hereby moves this Honorable Court to Suppress any and all evidence as fruit of the poisonous tree from the illegal stop and detention of Defendant Michael Patrick Hill. Defendant requests that hearing on this motion be set forthwith accordingly."
{ } Hill's boilerplate motion to suppress does not include a memorandum of law, nor does it contain any facts sufficient to place the prosecutor and court on notice of the issues to be decided. Crim.R. 47 clearly states that a motion shall state with particularity the grounds upon which it should be granted. Furthermore, Crim.R. 47 states that the motion shall be supported by a memorandum containing citations of authority. Neither of these fundamentals were included in Hill's motion. See, also, State v. Boone (1995), 108 Ohio App.3d 233 (evidentiary hearing properly denied when defendant's boilerplate motion did not contain a single factual allegation to support his claims). Therefore, the trial court erred in not striking the motion to suppress.
{ } The majority states that the absence of specific citations of authority is "troubling," but goes on to reason that the state cannot claim to be unfamiliar with the law regarding the "fruit of the poisonous tree" doctrine. Admittedly, it is unlikely one would be unfamiliar with this doctrine; however, this doctrine was not at issue in the case. That doctrine is the remedy, not the authority to suppress the evidence.
{ } In this case, the problem is not what Hill and Zarnesky want suppressed. Obviously they want the drugs and money suppressed as "fruit of the poisonous tree"; however, why they are entitled to have it suppressed is the question. What legal and factual basis supports their allegation that the evidence was seized illegally? A broad allegation that the stop and detention were illegal is insufficient to put the prosecutor on notice.
{ } In addition, the majority relies on State v. Mook, Trumbull App. Nos. 2001-T-0057 & 2001-T-0058, 2002-Ohio-6693, where the Eleventh District was satisfied with a bare bones motion; however, Mook is not binding on this court. But Crim.R. 47 and Xenia v. Wallace (1988), 37 Ohio St.3d 216, are. Both say that the motion shall state with particularity the grounds upon which the motion should be granted and shall contain citations of authority.
See, also, State v. Shindler, supra.
{ } Although the majority opinion notes that the state cited only one case in support of its position, that case was binding authority from the Supreme Court of Ohio. The case, as well as its holding, is significant because the defense failed to cite any authority for its position.
{ } The majority states, "In Xenia, however, the court found that the defendant had presented sufficient facts to apprise the state of its objection." The Supreme Court of Ohio actually said: "In the case at bar, the defendant moved to suppress evidence relating to any chemical testing on the grounds that the test was 'illegally obtained' and was not performed in accordance with proper procedure. Without more, this motion was insufficient to raise the issue of whether Officer Savage had probable cause to administer a breathalyzer test. * * * Further, the defendant did not file a motion in support of his motion as required by Crim.R. 47. * * * However, the prosecutor did not object to the defendant's motion and the court allowed the parties to proceed." (Emphasis added.) The court reasoned that the defense placed the state on sufficient notice only after the questioning of the police officer and providing case law. The court never stated that the motion to suppress w
Page 1 2 3 4 5 6 7 8 9 10 11 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|