Anatomy of a Trial: Motions in Limine and Motions to Suppress with Attorney and Author Alexander Silvert

[00:00:00] We talk about a criminal trial as if it was a single event, but of course that's not entirely true. A trial is made up of multiple parts starting with jury selection and going all the way to the delivery of a verdict. Not all of those stages of a trial always get attention, but each of them can be tremendously important. In fact, some attorneys claim that a trial can be won or lost in the jury selection process, and that of course happens before any case is made to that jury.

[00:00:28] And in other instances, a motion in Limine can change everything for a case, while a motion to suppress can get an entire case thrown out. But if you're not an attorney, it can get confusing trying to understand these various stages of a trial, and exactly why each is a crucial part of the process.

[00:00:48] That's why we have decided to launch a brand new occasional series we are calling Anatomy of a Trial. In each segment, we will talk to an experienced trial lawyer who will go in depth with us about a particular piece of a trial.

[00:01:01] Our expert today is Alexander Silvert. You heard him speak on an earlier episode we did about a scandal that toppled the police chief of Honolulu as well as a top prosecutor from that city. He is the author of the Mailbox Conspiracy, which details that case and the crucial part he played in it. Check out that book. We will include a link to it in our show notes.

[00:01:25] Alexander also has years of trial experience as a federal public defender.

[00:01:32] We will be speaking with him about two topics that are somewhat linked. Motions in Limine and motions to suppress. We're going to learn what's the difference between these two types of motions. What sorts of issues can you file these motions regarding? And how can motions that might be doomed to fail still help attorneys in a trial?

[00:01:51] My name is Anya Kane. I'm a journalist.

[00:01:54] And I'm Kevin Greenlee. I'm an attorney.

[00:01:56] And this is The Murder Sheet.

[00:01:58] We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases.

[00:02:04] We're The Murder Sheet.

[00:02:06] And this is Anatomy of a Trial. Motions in Limine and motions to suppress with attorney and author Alexander Silvert.

[00:02:59] Can you tell us a little bit about your professional background?

[00:03:02] Sure. I went to law school at Boston College Law School and graduated in 1984.

[00:03:08] I then spent five years in Philadelphia as both a state and federal public defender before moving to Hawaii in 1989, where I was the first assistant federal public defender for more than 33 years until I retired in 2022.

[00:03:24] I was also named one of the attorneys of the year, federal public defenders of the year in the year 2000.

[00:03:31] I guess to start off with, can you just tell us basically what is a motion in limine?

[00:03:38] A motion in limine is simply a pretrial request to exclude or limit prejudicial or non-relevant evidence.

[00:03:47] And really, the sky's the limit in a motion in limine.

[00:03:51] It's whatever your creative mind as a lawyer can come up with in looking at your case and saying this piece of evidence, although correctly seized by the police or the prosecution,

[00:04:03] is too prejudicial, is too harmful to allow in for a jury to consider.

[00:04:08] Absolutely. And then the flip side, what is a motion to suppress?

[00:04:12] So a motion to suppress, on the other hand, is a constitutional violation of one's rights.

[00:04:17] It can be the right to expectation of privacy or an improper confession or statement or a violation of the Sixth Amendment, for example, the right to counsel.

[00:04:28] So it involves a constitutional right, usually from the Fourth, Fifth and Sixth Amendment of the Constitution.

[00:04:35] And you're moving to suppress it.

[00:04:37] You're moving to completely keep it out from use at a trial by the other side.

[00:04:44] So just to boil it down into really silly layperson's language, it sounds like, as a journalist in the partnership, I have to ask.

[00:04:52] So it sounds like a motion in limine is something that is more about prejudice and a motion to suppress is more something like somebody made a mistake and it needs to be rectified.

[00:05:01] That's correct. Emotion to suppress is there was an error, a constitutional error of law in a seizure of a piece of evidence or a statement that we want to prohibit police officers from using and doing in the future.

[00:05:17] So it's not only a tool where you don't allow a piece of evidence in a trial, but supposedly it's supposed to work overall to tell police and law enforcement this is something you shouldn't do to invade or violate a person's constitutional rights.

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[00:10:25] Let's start with emotion in Lemonade.

[00:10:28] And I'm curious, how does an attorney like yourself, when you're preparing for a trial,

[00:10:34] how do you identify issues to potentially bring up an emotion in Lemonade?

[00:10:40] So the key thing is, and I've trained lawyers for many years, and I've supervised my own staff

[00:10:46] for many years, and I'm always surprised at how often lawyers really don't fully read the

[00:10:53] discovery that they're provided in a timely fashion.

[00:10:57] Lawyers will get around to it, but for emotions to eliminate and emotions to suppress, you got

[00:11:03] to do it as soon as you get the discovery, because one of the things I always teach students is,

[00:11:10] you want to read things more than once.

[00:11:12] You do a quick read, then you do it again, give it a few days rest, then read it again,

[00:11:18] because as you soak it in, things are going to pop into your mind and your head.

[00:11:23] So that has to be done rather quickly, as opposed to putting it on the side burner.

[00:11:29] So the first thing is to really take the time and to read the documents that you have.

[00:11:35] The second thing is, as I previously said, emotion in Lemonade is really unlimited in what

[00:11:43] you can do.

[00:11:45] So what you have to do is look at the paperwork and figure out what's in the paperwork, what's

[00:11:52] missing from the paperwork that should be there from the discovery.

[00:11:56] You may have to issue subpoenas.

[00:11:58] You may have to go interview witnesses.

[00:12:00] So this all takes time.

[00:12:01] So you can't wait to the last minute.

[00:12:04] And then based upon all of that information, you have to decide what you're going to file

[00:12:09] and so forth.

[00:12:11] Motions in Lemonade are pretrial motions.

[00:12:13] They're heard only by a judge, not by a jury.

[00:12:16] So they have to be filed in a timely manner.

[00:12:19] But they can be filed really at any time because judges are really open to hearing these types

[00:12:27] of motions because they don't want prejudicial evidence coming into a trial and causing a

[00:12:32] reversal.

[00:12:33] So while there are usually time limits set by a court of when these things can be filed,

[00:12:40] really, if you come upon something and you didn't file it, you should go ahead and file

[00:12:44] it at any time.

[00:12:47] So how can you convince a judge that this would be prejudicial?

[00:12:51] And how can you convince them to grant the motion in Lemonade?

[00:12:55] So motions in Lemonade, you know, I'll give you examples of what they can cover and some

[00:13:01] creative things.

[00:13:02] You know, aliases.

[00:13:04] In rap sheets, a defendant will have a lot of aliases.

[00:13:07] Many of those aliases are just misspellings by cops when they arrested somebody some time

[00:13:12] ago.

[00:13:13] So they're really not true aliases or just misspellings.

[00:13:16] But of course, if you're the prosecution, you kind of want to show all these aliases to

[00:13:20] show that he's hiding his true name.

[00:13:23] So you want to file motion to Lemonade to make sure aliases aren't mentioned or just bad

[00:13:30] nicknames.

[00:13:31] You know, you have a felon in possession case and you have a guy named The Gunner or, you

[00:13:37] know, bad bullet Jones.

[00:13:39] You know, you don't want that coming in.

[00:13:42] It's not relevant and it's highly prejudicial.

[00:13:43] So you do that.

[00:13:44] You have arrest photos.

[00:13:46] You know, sometimes the prosecution is going to want to have a witness identify a person

[00:13:51] and they'll try to sneak in the arrest photo.

[00:13:53] That's highly prejudicial.

[00:13:54] It's not relevant.

[00:13:55] You want to make sure that's kept out.

[00:13:58] Also, with photos, two things that happened to me that you really got to pay attention to

[00:14:03] and you learn by your own mistakes.

[00:14:06] When you look at a photo, you got to look at what else is in the photo.

[00:14:10] There might be things in the background of the photo which are highly prejudicial that

[00:14:15] has nothing to do with the use of the photo itself.

[00:14:18] So you want to make sure that you look at the photograph.

[00:14:21] You don't want that marijuana plant in the background in your photo when the person's

[00:14:26] using it just to identify something.

[00:14:28] The other thing is prosecutors, and I had this happen in a marijuana case.

[00:14:32] They took a picture of a marijuana plant, but for trial, and there's nothing wrong with

[00:14:37] that, but for trial, they blew that photo up to six feet tall.

[00:14:42] The plant in reality was three inches tall, but at trial, here's this blow up that's six

[00:14:48] feet tall.

[00:14:49] So you want to be aware of how these things could be used.

[00:14:54] Tattoos, obviously, on a defendant.

[00:14:56] You want to make sure they're not shown if it's not relevant.

[00:14:59] And then we get into more interesting things.

[00:15:02] The obvious one that most defendants know is in a felony possession case, the government

[00:15:07] has to introduce the fact that he's a felon, that he has a prior felony conviction.

[00:15:11] The law is pretty clear, and you've got to make sure this happens, that just the fact

[00:15:16] that the person has a felony is introduced, not what the felony was for or the underlying

[00:15:22] facts of that felony.

[00:15:24] You don't want that rape conviction coming in on your case.

[00:15:27] So you obviously, usually prosecutors are aware of this law, and you can deal with them

[00:15:32] and make a stipulation.

[00:15:34] But you want to make sure that that doesn't happen.

[00:15:37] As I said, motions in limine are boundless in what you can do.

[00:15:41] So I'll give you some examples.

[00:15:43] I did a case where sometimes you have military prosecutors who come into federal court to

[00:15:49] prosecute a federal crime because it happened on a military base.

[00:15:52] Well, you don't want them wearing their uniform as a prosecutor.

[00:15:56] So you file a motion to eliminate to make sure they're not going to wear their military

[00:16:00] uniform.

[00:16:01] If a law enforcement person is going to be a witness, but they're a witness as a victim,

[00:16:06] they're not there in their official capacity.

[00:16:09] They're not allowed under usually the standards of their own police department to wear their

[00:16:15] uniform because they're not in an official capacity.

[00:16:18] So you want to make sure that that happens.

[00:16:21] I had a case involving the chief of police who was the victim of a crime, allegedly.

[00:16:26] And I wanted to make sure he didn't come as a witness in the case in his uniform.

[00:16:32] So this requires not just thinking about it, but a little work, a little investigation.

[00:16:38] So we went and got the police standards, code of standards that talk about when a police

[00:16:45] officer can wear his uniform and not.

[00:16:46] And we had that in the ready so that if the person showed up in their uniform, we could

[00:16:52] cross-examine them that they were trying to influence the jury improperly.

[00:16:56] And this gets to really a question that in a minute I want to address, which is when do

[00:17:02] you want to file a motion to eliminate when you don't want to file one?

[00:17:05] But one other example I want to give, and I highly encourage defense attorneys out there

[00:17:10] to do this, I tried it unsuccessfully, but I almost got it.

[00:17:14] In a courtroom, usually the prosecution sits closest to the jury and the defense sits further

[00:17:22] away from the jury.

[00:17:23] There is no law that says this is right.

[00:17:26] There's no rules that say this is right.

[00:17:28] But it's standard practice in most courts that the prosecution sits next to the jury and

[00:17:34] the defense sits at the table next.

[00:17:36] Well, I filed a motion to eliminate saying, why?

[00:17:39] I want to sit over there.

[00:17:41] And this was a case of mistaken identity.

[00:17:43] It was also a case where I wanted them to like my client and no more.

[00:17:46] So I made a motion to eliminate to say, I want to sit there.

[00:17:50] I almost want it.

[00:17:52] The only reason the judge denied it was the government made the argument, well, there's

[00:17:56] the attorney-client privilege.

[00:17:58] And if the client starts talking to the attorney, the jury might overhear.

[00:18:03] I really didn't buy that argument, but that was enough for the court to say, well, I'm

[00:18:06] not going to change things.

[00:18:08] So that's what I mean by it's endless.

[00:18:10] I want to ask you something a little off script for a second, because I often deal with anxiety.

[00:18:16] So I'm often thinking about things that could go wrong ahead of time.

[00:18:19] And what you're saying makes me feel like I would be good at figuring out what things to

[00:18:23] file about motion and eliminate.

[00:18:24] But how do attorneys sit down and figure out, I guess, like all the possible things that

[00:18:30] they need to do in terms of filing these motions and eliminate, in addition to obviously looking

[00:18:36] at the discovery.

[00:18:37] But like, how do you just sit down and conceptualize all of this?

[00:18:41] Well, I am a big believer in teamwork.

[00:18:45] You know, I've always worked with investigators and with paralegals.

[00:18:48] I mean, it's usually a team that works on a case that you have in your office.

[00:18:51] And my feeling has always been everybody is equal in their knowledge and input.

[00:18:57] We all come from a different perspective.

[00:18:59] But, you know, I don't treat investigators or secretaries or paralegals as beneath me because

[00:19:05] I'm the lawyer.

[00:19:06] Their opinion and their views are not only valuable, but oftentimes much more insightful than me,

[00:19:13] because they do come from a different perspective.

[00:19:15] And so one way to issue spot is really to get together with your team and just have a BS session

[00:19:23] and go through everything and just throw stuff against the wall.

[00:19:27] I mean, everybody has a different way of practicing law.

[00:19:31] You know, when I write notes or cross-examination questions, it's not every question I'm going to

[00:19:39] ask in a typed format.

[00:19:41] I'm freewheeling it.

[00:19:43] I just write issues down.

[00:19:44] Other lawyers need to write all the questions down and have that in before them.

[00:19:49] And the same is true when you're doing motions to suppress or motions to eliminate, thinking

[00:19:54] about it.

[00:19:55] You kind of just want to sit down and have this freewheeling discussion with all the facts

[00:20:01] in front of you that you've been able to gather.

[00:20:03] And you may have to go gather more.

[00:20:05] Use of subpoenas can be critical.

[00:20:07] So it's really one of those things where it's just common sense sometimes.

[00:20:11] What's out there?

[00:20:12] What can you see?

[00:20:13] What do you need to do?

[00:20:15] I'm curious.

[00:20:16] A minute ago, you talked about discussing with us when you should file and when you

[00:20:22] shouldn't file.

[00:20:23] So I'm curious what sort of things come into play when you're making those kind of calls.

[00:20:26] Sure.

[00:20:27] So I'm a believer that you do all you can as a defense attorney not to disclose your

[00:20:34] case to the prosecution.

[00:20:36] There are other schools of thought on this, but that's the way I practice.

[00:20:40] It doesn't mean you have to be mean or anything like that.

[00:20:44] It's just I don't want to give my case away.

[00:20:46] Okay.

[00:20:47] So sometimes you don't want to file a motion to eliminate because if in arguing the motion

[00:20:52] to eliminate, you might have to give too much away about what direction you're going in

[00:20:57] or what kind of cross you're going to do.

[00:20:59] So sometimes you got to look at the piece of evidence that you're trying, you think shouldn't

[00:21:04] come in and just say, is it worth it?

[00:21:07] Do I, you know, I know it's wrong.

[00:21:08] It shouldn't come in.

[00:21:09] But do I really want to go there?

[00:21:11] For example, in the, I talked about the chief of police, you know, potentially wearing his

[00:21:16] uniform.

[00:21:17] I did not file a motion to eliminate to prevent that.

[00:21:21] I wanted him to walk on the stand wearing his uniform so I could cross examine him.

[00:21:27] So in that case, I made the decision.

[00:21:30] I'm not going to file a motion and let him walk on the stand and I'll just cross examine

[00:21:34] him.

[00:21:35] So you have to decide, you know, what is the, do you really need to keep it out?

[00:21:39] Is it too prejudicial?

[00:21:40] You just can't take the risk.

[00:21:41] Or you know what?

[00:21:42] I might be able to let this slide and I can use it for cross.

[00:21:45] Remember, you can always cross on these things.

[00:21:48] So don't, you know, just because it comes in doesn't mean you lost your opportunity to

[00:21:54] show the prejudicial impact of it and how it was not relevant and how the prosecution

[00:21:58] put it in, in order to influence the jury improperly.

[00:22:03] Is there a risk or a cost to filing a motion and eliminate other than perhaps telegraphing

[00:22:09] some elements of your case?

[00:22:11] There really isn't.

[00:22:12] You can file as many motions and eliminate as you want.

[00:22:15] Most, most emotions and eliminate are legal questions for the judge to decide.

[00:22:20] So he can, the judge can decide it on the paperwork or come in, you make oral argument and the judge

[00:22:27] will decide.

[00:22:27] So it doesn't really take a lot of time in a lot of these motions and eliminate.

[00:22:32] But if you do think you can get an evidentiary hearing, which I always love evidentiary hearings, even if you're going to lose, because they're valuable to you to get a witness up there.

[00:22:42] It's always a prosecution witness.

[00:22:44] And if you're going to get a witness, then you have to allege enough facts in order to get a dispute, a real dispute.

[00:22:49] So the judge wants to hear some evidence.

[00:22:51] And here's another key that a lot of practitioners, defense attorneys fail to understand.

[00:22:57] And you can subpoena a police officer or a prosecutor witness at a motion and eliminate or a motion to suppress if there's a factual dispute.

[00:23:05] And it's your opportunity.

[00:23:07] It's not just the government.

[00:23:08] It's your opportunity to get them on the stand, even if you're going to lose, because it's always valuable to have a witness under oath on the stand pretrial where you can get a feel for them and you can lock them into testimony that by the time of trial, they may realize that is harmful to them.

[00:23:29] I'm curious when it comes to the actual writing of a motion in lemonade, what are some common mistakes that attorneys make?

[00:23:37] Right.

[00:23:38] I mean, there's really two mistakes.

[00:23:40] You don't say enough to convince the judge if you really are trying to keep something out.

[00:23:46] You don't say enough.

[00:23:47] And secondly, you say too much.

[00:23:51] Again, there's a fine line between saying too much because you want to win versus not saying enough when you do want to win and you want to get it suppressed.

[00:24:02] Otherwise, you know, I used to get a lot of calls from Criminal Justice Act attorneys from outside of attorneys of, you know, they would spend 20 minutes telling me a fact pattern and then say, do you have a motion that I can copy?

[00:24:16] And I'm always like, well, number one, your fact pattern is unique, of course.

[00:24:20] But number two, you can write anything.

[00:24:24] You know, lawyers don't understand sometimes because we go to law school and we think everything has to be so specific and it's all formatted correctly.

[00:24:33] Once you have the formatting the way every court and each court is different has their formatting, you can say anything and you can call the motion anything you want and the court will hear it.

[00:24:45] So I've always told people don't be scared.

[00:24:48] Entitle it what you want and just write what you need to write.

[00:24:53] Is a motion in lemonade a final ruling or is that something that's preliminary that can be changed?

[00:25:01] Some of the rulings the court will say are final, but most of the rulings are not final because at trial, as evidence is uncovered and presented to the jury, the court might change its mind based upon the further evidence given.

[00:25:17] So a lot of the rulings could be final.

[00:25:20] You know, for example, the use of aliases or, you know, photos that are prejudicial.

[00:25:26] The court's really not going to change its mind on those things because they're obvious.

[00:25:29] But on other motions to eliminate, the court might even reserve judgment and say, I'll rule at the time of trial.

[00:25:36] So another thing as a lawyer that I've noticed is a lot of lawyers will forget and they won't renew their objection at the time of trial.

[00:25:44] So don't forget that you've got an issue with some fact and you're going to renew your objection.

[00:25:51] If you don't object, you've waived your issue and you cannot raise it on appeal.

[00:25:57] And lawyers sometimes forget to object because they're scared of the judge.

[00:26:03] The judge is angry at them.

[00:26:04] They've made too many objections.

[00:26:06] But if you don't object, which is your job, you've lost your appellate rights.

[00:26:13] Absolutely.

[00:26:15] I'm curious.

[00:26:16] Do you have any interesting experiences with violent emotions?

[00:26:22] You've touched on a few.

[00:26:23] You've touched on a few.

[00:26:24] I touched on a few.

[00:26:25] Right.

[00:26:26] So, for example, this is kind of dovetails into everything I've said.

[00:26:31] I had a case where the government filed other bad acts motion, which is a 404B motion under the federal rules of evidence.

[00:26:40] And that's where the government wants to introduce.

[00:26:43] It doesn't have to be a crime of conviction or anything the person was actually found guilty of.

[00:26:49] It could just be a bad act of any kind.

[00:26:51] And the government wants to introduce it.

[00:26:53] Normally, you could file prior to trial.

[00:26:55] The government has to give you notice that it's going to do that.

[00:26:58] And you can file a response saying, I object.

[00:27:01] And I don't want that coming in.

[00:27:02] And you have a hearing.

[00:27:03] Just, you know, it's a usual motion and limine on that kind of evidence.

[00:27:07] I had a situation where the government filed that motion saying they want to introduce an issue related to bank records and how my client had tried to falsely obtain these bank records, which was their theory of the motive of a reason why a defendant committed a crime to get those bank records.

[00:27:27] We discovered through investigation that our client had actually received those bank records legitimately months earlier.

[00:27:35] And the government didn't know it.

[00:27:37] So we decided not to file a motion and eliminate to keep that out, saying, go ahead, put that evidence on, and we're going to prove to the jury that that's completely false.

[00:27:48] So that's a situation, again, where because we did our work and we issued subpoenas and we had the information that the evidence was false, it wasn't to us so highly prejudicial that we cared about it.

[00:28:00] And we could really destroy it and destroy the credibility of the prosecution at the same time.

[00:28:04] So that was an instance where we didn't file a motion and eliminate because we made that decision.

[00:28:09] Another thing that people, this is a common thing that I think gets overlooked, but it's a motion to eliminate.

[00:28:14] Because again, we're talking about evidence that it has to be relevant, but prejudicial.

[00:28:20] So we had a case that was a drug distribution case involving crystal methamphetamine.

[00:28:27] When the cops raided this apartment, they found the crystal methamphetamine all over the counter of the table.

[00:28:33] And we were claiming that our client didn't know anything about it.

[00:28:37] He was in the apartment, but wasn't aware of it.

[00:28:39] Well, they found marijuana in the refrigerator, in the apartment.

[00:28:44] Well, the possession of marijuana, even if he knew about it, is not the crime that he's charged with.

[00:28:51] He's charged with distributing crystal methamphetamine.

[00:28:55] Simple possession is not a relevant fact of marijuana.

[00:28:58] So we filed a motion and eliminate to say you cannot introduce the marijuana found in the refrigerator because it's not relevant to the charge.

[00:29:06] A lot of people, because it's drugs, just think, well, all drugs are going to come into the case.

[00:29:11] It's not true.

[00:29:13] Well, in this case, we filed the motion.

[00:29:15] The judge agreed.

[00:29:17] The prosecutor couldn't introduce it.

[00:29:19] We went to trial.

[00:29:21] And the very first witness introduced, made a mistake, and started talking about the marijuana in the refrigerator.

[00:29:30] We got a mistrial.

[00:29:32] The great thing about it was the witness had already finished their direct examination, and I had done some cross-examination.

[00:29:39] And therefore, I had him under oath, and I had some experience with him, which helped us in the second trial.

[00:29:46] It's another type of motion and eliminate that we did, and it actually led to confusion and problems for the prosecution at trial.

[00:29:53] I had a question that sort of just popped into my head.

[00:29:58] Does the prosecution ever file motions in eliminate, or is that more rare, and what can that look like?

[00:30:06] Prosecutors do file motions in eliminate sometimes.

[00:30:09] It is rare.

[00:30:10] It's not as often as the defense does.

[00:30:12] And, you know, sometimes it's usually where the defendant wants to sneak in good evidence.

[00:30:19] In, for example, most people don't understand this, but if a person confesses or makes a statement and says he's not guilty, that's not admissible.

[00:30:30] Right?

[00:30:31] It's hearsay.

[00:30:32] And so the government will say you can't introduce that statement.

[00:30:36] You can't even ask questions about it.

[00:30:38] Or sometimes the defendant will say in a statement, one part of the statement is inculpatory, and another part of the statement is exculpatory.

[00:30:48] You're not allowed to introduce the exculpatory part of the statement.

[00:30:51] So the government will say, well, we're going to introduce this, but you can't introduce that.

[00:30:56] So they think, you know, the government's usually trying to limit in those cases where the defense is trying to get in information that they think is going to help their client that is also not relevant according to the law.

[00:31:09] Before we move on more to motions to suppress, I'm curious about the actual hearings where the motions in Lemonade are litigated.

[00:31:23] Can you talk about that and some of the strategies that might be used in those hearings?

[00:31:27] Right.

[00:31:28] And I want to combine this with the same strategy with motions to suppress.

[00:31:33] First of all, with both of motions to eliminate and motions to suppress, if you don't allege enough of a factual dispute, you are not going to get an evidentiary hearing.

[00:31:44] So if you want an evidentiary hearing, then you've got to allege enough facts.

[00:31:49] Again, you've got to be careful not to allege too many facts because you don't want to, again, divulge your case.

[00:31:54] But you must allege enough facts.

[00:31:56] Otherwise, the law is very clear.

[00:31:58] The court can decide these things without a hearing.

[00:32:00] At a hearing, to me, as a defense attorney, you have to go into the hearing realizing, especially in federal court, and there is a distinction between state and federal court.

[00:32:11] In federal court, where I practiced for 33 years, you're going to lose 90% of these hearings.

[00:32:16] You're not going to win these hearings.

[00:32:18] And so usually you enter these hearings with an alternative purpose because you're not going to win.

[00:32:26] In state court, you can win a lot more of these hearings.

[00:32:30] And one of the reasons is you're dealing with police officers who may or may not have a college education and a lot of training.

[00:32:37] They're not as professional as on the federal side where you're dealing with FBI agents and so forth.

[00:32:43] So, and you're dealing a lot of times in the state side with civilian witnesses.

[00:32:48] In the federal side, it's always law and, you know, professional law enforcement.

[00:32:51] So there's a huge difference where on the state side, I entered the hearing in a motion is suppressed or emotionally eliminated thinking I could win a lot of them.

[00:32:59] Whereas in the federal side, you're entering saying you're not going to win.

[00:33:02] What am I really trying to get out of this?

[00:33:05] Obviously, you know, if you get a hearing, an evidentiary hearing, you want government witnesses on the stand, if nothing else, to lock them into testimony at a very early stage in the case before the government has really prepped its case and really has developed its trial strategy.

[00:33:24] And what happens a lot of times is as the government preps its case for trial, their theory or their evidence changes a little bit and you've locked a witness into something that doesn't fit.

[00:33:37] And nobody at the time even knew it.

[00:33:39] You may not even have known it when you asked a question, but you locked them in.

[00:33:43] You know, I was famous when I was a young state PD for, you know, when there was a robbery, I would ask questions like, did he use his left hand?

[00:33:50] Did he use his right hand?

[00:33:51] Was it the hand over his head or down below his way?

[00:33:53] I mean, nonsensical questions in the overall thing of whether somebody was really robbed or not.

[00:33:58] But you'd be surprised how many times later you found out that the person was right handed and he wasn't left handed or, you know, he had a broken shoulder and couldn't raise his hand.

[00:34:07] You don't know at the time how important these things can be.

[00:34:11] But I can tell you more often than not, if you just ask these questions, knowing you're probably going to lose, you will get answers that could help you later on.

[00:34:20] The other reason to have an evidentiary hearing, even if you're going to lose, is you get a feel for the witness.

[00:34:26] And I'll give you an example.

[00:34:28] So I had a IRS drug money laundering sting against the client.

[00:34:34] Our defense was going to be entrapment.

[00:34:36] Of course, we didn't tell anybody that.

[00:34:39] But I filed a motion to suppress, which I knew I was going to lose.

[00:34:43] But it got the agent in charge who actually set up the sting and created the sting on the witness stamp.

[00:34:52] So I was able to get a feel for him and how he was going to testify or not.

[00:34:57] But the best part of it was that he he is an agent who was from Los Angeles.

[00:35:02] And he's a very special agent, as he testified to, because he's the only agent I found out in a casual conversation with him after the hearing who was allowed to live outside the district that he was assigned to.

[00:35:16] He was the only IRS agent in the country who had this privilege of living outside the district that he was assigned to.

[00:35:23] And he bragged about it in a casual conversation at the airport with me.

[00:35:27] He was very unhappy when I used it against him on cross-examination.

[00:35:30] What happened was when he took the stand, he walked in.

[00:35:34] I don't know if your viewers will remember this, but the old Miami Vice TV show with Don Johnson, who used to wear these white suits.

[00:35:43] He was tan, sunglasses, blonde hair.

[00:35:47] He looked like Don Johnson when he walked on the witness stand.

[00:35:52] And remember, this is the agent who we are going to claim at trial entrapped our client.

[00:35:57] So just by seeing him, because I didn't know who this agent was.

[00:36:01] I would never have known who he was or what he looked like prior to trial.

[00:36:04] Just by seeing him and the way he acted and the way he looked, I tailored my whole case to Miami Vice, Don Johnson.

[00:36:14] This is the agent you're going to see.

[00:36:15] And he lived up to the billing.

[00:36:17] And I only learned that because I filed this motion to suppress, which I lost.

[00:36:24] Jesus.

[00:36:26] Okay, that's really interesting.

[00:36:29] I guess, is there anything else we didn't ask you about motions in limine in particular that you wanted to hit before we moved on to our motions to suppress section?

[00:36:39] The only other aspect about motion in limine that we didn't talk about was a judge can issue a limiting instruction.

[00:36:47] So that might be your goal is the judge says, well, I'm not going to keep it out, but I'm going to tell the judge you can't use it for this purpose.

[00:36:55] So don't forget to ask for a limiting instruction.

[00:36:58] And the government will also oftentimes in order to try to get the evidence is, oh, we can solve this by a motion in a limiting instruction.

[00:37:06] You know, as a defense attorney, I never believed in limiting instructions because I just don't think the jury understands them.

[00:37:12] I mean, when you see somebody with a tattoo of a machine gun on their shoulder and it's a gun, a felon in possession of a gun case, are they really going to use it because it's just a tattoo and that's all they can use it for?

[00:37:23] No, you know, it has the motion in limine and the limiting instruction is not going to work.

[00:37:28] So as a defense attorney, I didn't like that, but the court can do that.

[00:37:33] So you have to be aware of it.

[00:37:35] So going into suppression, how does a lawyer identify issues to bring up in a motion to suppress?

[00:37:42] So this, again, has to do with two things.

[00:37:46] Reading the reports and really looking for what's missing.

[00:37:51] The key thing in police reports is they omit bad facts all the time.

[00:37:57] And you have to try to find that.

[00:37:59] You have to issue spot and facts spot that in the police reports.

[00:38:03] And that sometimes, unfortunately, just comes with experience, knowing what should be in a report or knowing how reports are written.

[00:38:11] You know, for example, as an easy thing, police officers are supposed to document dates and times of every witness they interview and when things happen.

[00:38:19] And, well, when you get in a police report, a witness from a statement and there's no date and no time, there's a reason for that.

[00:38:27] Okay.

[00:38:27] So you got to figure out why.

[00:38:29] Why did all of a sudden they're not, you know, this officer who you could show in the rest of the report was very conscientious, didn't do that.

[00:38:37] Or if that statement from that witness is really truncated, but all the other statements from all the other witnesses really long, you know there was more said.

[00:38:45] So you got to figure out, you know, what that's about and how to get it.

[00:38:49] So when you're doing issue spotting in a motion suppressed, it's really unfortunately a question of experience, but it's also a question of keeping up on the law.

[00:38:58] Lawyers have to keep up on the current law in their district.

[00:39:02] And whatever method or other groups you have, you have to join as a defense attorney and read these opinions as they come out.

[00:39:10] You know, motion is suppressed law is ever evolving.

[00:39:15] It changes almost every opinion, the court issues for the defense, usually in a negative way.

[00:39:22] You know, we no longer live in the sixties, you know, where all these new process rights were being established.

[00:39:28] We now live in 2024 where they're all being taken away.

[00:39:32] So you really have to know the law.

[00:39:34] So a lot of about motion suppresses, being a competent attorney who's keeping on top of issues.

[00:39:40] It also means not being afraid to reach out to your colleagues and saying, what do you think about this?

[00:39:46] Talking to multiple other lawyers is really helpful and it's not a sign of weakness.

[00:39:53] I cannot tell you how many times lawyers think if I show that I don't know something or I ask a question, it's some kind of reflection on them that they're not a good lawyer.

[00:40:03] It's not.

[00:40:04] I applaud lawyers who reach out to me or to other lawyers and ask questions.

[00:40:09] It shows they're being diligent.

[00:40:11] So unfortunately, in a motion to suppress where you're talking about constitutional law, it's really about research, knowledge and keeping informed.

[00:40:19] So what are some of the grounds that a judge might find compelling enough to suppress a particular piece of evidence?

[00:40:28] So, again, it has to be a significant constitutional violation.

[00:40:33] And here's where I want to bring up a quick note about the difference between state and federal court.

[00:40:40] Even in state court where it's your constitution that applies, not the federal constitution per se.

[00:40:47] And state constitutions are different from the federal constitution.

[00:40:50] For example, there is no right to privacy, expectation of privacy written into the federal constitution.

[00:40:57] It's a case law that has developed that right.

[00:41:01] But in state constitutions, some states have actually written that right into their state constitution, which makes it much more powerful because it's a constitutional right under the state.

[00:41:12] And we all know the federal rights simply set the floor.

[00:41:15] The state can give you more rights.

[00:41:17] So in state court, you might have actually more rights than in federal court.

[00:41:22] But in state court, if you're filing a motion to suppress, you still must cite the federal constitutional right that's violated because if you go through the state court process and you lose and you lose on appeal in state court, you can ultimately file a habeas corpus petition to the federal government, to the district court.

[00:41:42] But you have to have alleged a federal violation.

[00:41:45] If you only alleged a state violation, you will not be able to challenge the federal violation.

[00:41:53] So state practitioners have to remember to keep informed and write down the federal violation.

[00:42:02] Now, for the federal court side, it has to be a significant violation.

[00:42:09] If it's a minor violation, it's not going to make it.

[00:42:12] It has to be a significant violation of your expectation to privacy in a search or a violation of your right in a confession either to the Fifth or to the Sixth Amendment right.

[00:42:24] So if it's minor, it's not going to fly.

[00:42:29] One of the ways to think about this overall, and this goes to, again, whether you're going to file it or not, is think of every piece of evidence that you have as a link in a chain.

[00:42:42] So the bloody shoe is one thing.

[00:42:44] The bloody glove is another link.

[00:42:46] You know, the confession is another link.

[00:42:48] And so the prosecution has all these pieces of evidence that form this link.

[00:42:53] Sometimes a motion to suppress can be dispositive.

[00:42:56] You can win the case by winning the motion to suppress.

[00:43:00] And I'll give you an example.

[00:43:02] And this is the example I used to give to my clients.

[00:43:05] You know, my clients who are usually brown or African-American, you know, I would tell them, you know, and I'm white, so that, you know, we're in, it's two o'clock in the morning and we're in alleyway in Waikiki and we're talking.

[00:43:20] And a cop drives by and sees us and says, hey, what's a white guy doing with this African-American or this brown skin guy in an alleyway at two o'clock in the morning in Waikiki?

[00:43:30] So the cop has a hunch.

[00:43:32] This is a drug deal.

[00:43:33] So the cop rolls up, orders us up against the wall, searches our pockets, finds a bag of marijuana in my client's back pocket and arrests them for possession of marijuana.

[00:43:43] Well, under the Constitution, a hunch is not enough for probable cause.

[00:43:48] It's not enough for a frisk.

[00:43:51] And just because I'm white and the person is another color and we're at two o'clock in the morning doesn't give the officer the right to pat us down.

[00:43:59] So we would file a motion to suppress saying the seizure of the marijuana was illegal.

[00:44:04] And if we won that motion to suppress, we win the case because there's no other evidence of a crime.

[00:44:11] On the other hand, let's say there's a confession.

[00:44:18] But there are three eyewitnesses to the crime.

[00:44:21] There are photographs and a video of the crime and so forth.

[00:44:24] But the confession was improper.

[00:44:26] So you file a motion to suppress to keep your client's confession out.

[00:44:29] And let's say you win it.

[00:44:31] Well, it doesn't stop the prosecution because they've got all this other evidence that you committed this robbery and those.

[00:44:37] And so it only took out one link in the chain, but it wasn't enough to win the case.

[00:44:42] So when you do motions to suppress, one of the things you have to look at is, well, what am I going to get out of this besides, you know, getting witnesses on the stand and locking them in?

[00:44:52] And is it worth going after that, knowing I'm not going to win the case with it?

[00:44:57] Is it worth it or not?

[00:44:58] So, again, the same analysis as a motion to eliminate.

[00:45:02] You know, getting witnesses on the stand is good.

[00:45:04] Cross-examining them and locking them into their testimony is good.

[00:45:07] But you don't want to give away your defense.

[00:45:09] So you've got to, again, analyze the situation and decide whether you're going to file a motion to suppress or not.

[00:45:18] When actually pending the motion to suppress, are there any common mistakes that attorneys make?

[00:45:24] I think the most common mistake is, number one, not alleging sufficient facts to get a hearing.

[00:45:32] You do not want to judge ruling on the paperwork because that usually isn't good enough.

[00:45:37] So you need to allege sufficient facts to get that hearing.

[00:45:43] Secondly, you've got to understand what the law is so the government can't come back and simply say, well, here's this case.

[00:45:50] And it doesn't matter what they've alleged in the facts.

[00:45:53] It's not suppressible.

[00:45:55] So, again, you've got to know your law.

[00:45:57] You've got to know there's an issue there.

[00:45:59] And you've got to allege enough.

[00:46:00] The other thing is that what people tend to forget is you lose the motion to suppress the evidence that comes in.

[00:46:09] But you still have your right to cross-examine.

[00:46:11] And you can't get the jury to suppress the evidence.

[00:46:16] But you can get the jury for the same reasons you were arguing that it was improper.

[00:46:20] You can raise that same issue in trial to convince the jury, yeah, they introduced a confession.

[00:46:25] It's not suppressible.

[00:46:27] But you shouldn't believe that confession.

[00:46:29] So sometimes lawyers forget they can still use the same issue in front of a jury.

[00:46:35] You just can't ask the jury to suppress it.

[00:47:09] Because there's no judge in the world that I know of who wants to commit reversible error.

[00:47:14] And, of course, they're going to be mad.

[00:47:16] There's going to be arguments of why didn't you see this?

[00:47:18] You're a bad lawyer.

[00:47:19] You might be ineffective because you didn't do this before.

[00:47:22] But you know what?

[00:47:23] We represent clients.

[00:47:24] It's their lives.

[00:47:25] It's not about you.

[00:47:26] If you made a mistake and you didn't see it, but now in the middle of trial you see it, you've got to bring it up.

[00:47:32] And I'm telling you, judges will stop the trial and do it because they do not want to have a reverse conviction.

[00:47:39] I'll repeat a question I asked in the first section about motions in Lemonade that I just was curious about.

[00:47:44] Would there be any reason for a prosecution side to ever file a motion to suppress?

[00:47:50] Or is that just not a thing that happens?

[00:47:51] No, the prosecution doesn't file motions to suppress.

[00:47:56] And I'll ask a question I asked in the earlier section.

[00:47:59] Is there a cost or a risk in overfiling or filing frivolous motions to suppress?

[00:48:07] There is.

[00:48:08] The courtroom is made up of personalities.

[00:48:12] Prosecutors are people.

[00:48:14] Defense attorneys are people.

[00:48:15] And judges are people.

[00:48:16] They're not saints or gods.

[00:48:19] And they can get mad.

[00:48:20] And sometimes it's undeserved.

[00:48:23] But sometimes it's not.

[00:48:25] And if you file too many motions to suppress that are absolutely frivolous or you're just being litigious for no other reason and there's nothing, it's really stupid.

[00:48:36] You can piss off a judge.

[00:48:38] And that's not good going into a trial.

[00:48:40] And the other thing is you want to be honest and forthright at all times as a defense attorney.

[00:48:47] The law is against the defense attorney.

[00:48:50] The court's against the defense attorney.

[00:48:53] The prosecutors against the defense attorney.

[00:48:55] And most citizens want criminals convicted.

[00:48:59] The only thing a defense attorney has is their credibility and honesty.

[00:49:03] And if you throw that away on a frivolous motion or on a waste of the court's time, you've put yourself in a really bad position with the judge.

[00:49:12] So that's a big caution that I give out there is you want to litigate meritful, even though you know you're going to lose, motions to suppress.

[00:49:24] And then I want to pass along a question we've gotten from listeners, which is what is the harm in just letting the jury hear all of the evidence and just hear everything and sort it out themselves?

[00:49:38] Why do things need to be kept in the jury?

[00:49:44] I think there are pieces of evidence that I think are so prejudicial that will improperly sway a jury when the issue is guilt of a crime that they're charged with and get them to dislike a defendant for other reasons that aren't important.

[00:50:02] You know, race.

[00:50:03] Race isn't supposed to be a factor.

[00:50:05] So you don't want any issues coming in the jury thinking about race.

[00:50:09] You know, as I said before, you know, having tattoos that have nothing to do with the crime.

[00:50:14] There are a lot of people who are afraid of people with tattoos or there might be a gang tattoo.

[00:50:19] It may have nothing to do with the crime.

[00:50:21] It's a domestic abuse, but he has a gang tattoo.

[00:50:24] Well, people know what a gang tattoo is, and that's going to have an influence on some jury members.

[00:50:30] And remember, there are 12 jurors.

[00:50:32] While you personally might not be offended by something, your juror sitting right next to you might have a different lifestyle and might be offended by that.

[00:50:41] So it is important that certain kinds of evidence are excluded.

[00:50:48] I was wondering, have you had any particularly memorable personal experiences with motions to suppress or getting evidence thrown out?

[00:50:57] Sure.

[00:50:57] Sure.

[00:50:57] I have four I'd like to talk about.

[00:51:00] And they bring in everything.

[00:51:02] And once it was a great lesson for all defense attorneys, but particularly for me.

[00:51:06] So this was an immigration case where my client was arrested for being a legal immigrant.

[00:51:12] The police had surrounded this residence, knocked on this person's door.

[00:51:18] She had come to the door.

[00:51:19] So there's a door and a screen.

[00:51:21] She'd opened the door.

[00:51:22] The screen was closed.

[00:51:25] And then they'd asked her for her identification.

[00:51:29] So she had opened the screen door to talk to them.

[00:51:33] She turned around to go into the house to get her identification.

[00:51:38] They walked right in behind her.

[00:51:40] No search warrant.

[00:51:42] And so the issue was consent.

[00:51:45] You know, they didn't have a search warrant.

[00:51:47] Was that consent?

[00:51:48] Was her opening the screen door to talk to them and then turning around to go back in consent?

[00:51:54] Obviously, under the law, it's not.

[00:51:57] Well, the prosecution laid out its case and all of that came out on direct.

[00:52:04] I asked no questions on cross-examination.

[00:52:08] And I will tell you, it was the first time I had ever done that.

[00:52:12] You know, as a lawyer, we think we're brilliant cross-examiners.

[00:52:14] We think we know what we're doing and we're going to bring this out and that we're going

[00:52:18] to win the case by our brilliant examination.

[00:52:21] I stood up and my gut was telling me, don't ask questions because by asking a question,

[00:52:29] you give a witness the opportunity to answer and possibly fix the issue that you know is

[00:52:35] a winning issue.

[00:52:36] And the judge looked at me kind of with a smile on her face.

[00:52:41] I looked at her and after literally what seemed like eternity, I said no question and sat down.

[00:52:46] And I won that motion to suppress.

[00:52:48] But it was a great learning lesson that sometimes you don't ask any questions.

[00:52:55] Another one was, and again, this has to do with doing your prep work.

[00:52:59] It was a search of a vehicle.

[00:53:02] There was a traffic stop and the cop asked for the person's license and registration.

[00:53:07] He opened his glove compartment and the cop claimed in plain view, he saw a gun.

[00:53:15] If that were true, that would be legal and there'd be no issue.

[00:53:20] But we investigated and we happened to find there was an apartment building next to where all

[00:53:26] this happened and we went and talked to residents of the apartment building.

[00:53:31] And we found a resident who had actually been sitting on their terrace and watched the entire

[00:53:36] event from the third floor and told us, well, what they saw was the police officer was on the

[00:53:45] passenger side.

[00:53:47] The door of the passenger side was open and the cop was back behind the door.

[00:53:54] From that position, you cannot see into the glove compartment.

[00:53:59] So visualize the door of the passenger being open and the cop being on the mirror side of

[00:54:04] that door.

[00:54:05] You cannot see into the glove compartment from that door.

[00:54:08] So by having done our investigation and our research, we won that case.

[00:54:14] That took work.

[00:54:15] It takes planning.

[00:54:16] Well, we talked about the Don Johnson IRS case, so I won't go there, but I'll tell you a

[00:54:21] different one.

[00:54:22] I mean, what I didn't tell you about that case, but I alluded to it, which was fun is after

[00:54:26] the hearing was all over and I had lost, I had to go to the airport to go to a conference.

[00:54:31] And at the airport, I ran into this agent who was also going to be on my flight.

[00:54:36] He was going back to another conference and we just started chatting.

[00:54:40] And this is when in this friendly conversation, he talks bragging about how he wasn't, he didn't

[00:54:46] have to live in his district.

[00:54:48] And he's a special agent.

[00:54:50] He goes all over the country doing these sting operations.

[00:54:53] Every bit of that I was able to use in my cross-examination when we were saying our client

[00:54:59] was entrapped by this very special agent.

[00:55:05] But the other motion express I want to talk about, it was a case, a drug case where my

[00:55:11] client's apartment on the fourth floor of a walk-up was raided with a search warrant and

[00:55:17] a whole drug lab was found, including with notes about how to cook methamphetamine in

[00:55:24] my client's handwriting.

[00:55:25] My client insisted that he was innocent.

[00:55:29] I mean, no one else lived in this apartment.

[00:55:31] They seized, you know, all the house records, including electric bills and every mail, it's

[00:55:36] all in his name.

[00:55:37] There's no roommate.

[00:55:38] And I'm like, this is crazy.

[00:55:40] This is a loser case.

[00:55:42] He's looking at a 20-year mandatory minimum, but he's insisting he was framed.

[00:55:46] He was innocent.

[00:55:47] They planted all the evidence.

[00:55:49] I mean, think about that.

[00:55:50] You know, I am a big conspiracy theorist, and I don't believe, I believe cops plant evidence.

[00:55:55] But what this would entail is a bunch of cops walking up four flights of stairs with tons

[00:56:00] of heavy equipment, writing a note in my client's handwriting and putting it in the apartment.

[00:56:05] Even I, as a defense attorney, didn't buy that one.

[00:56:08] But we were going to go to trial because he was, we were going to go.

[00:56:12] So we did a motion to suppress.

[00:56:14] And what we had found was there was that we, when there's a search warrant, again,

[00:56:19] this is the difference between state and federal law.

[00:56:21] In state law, you can attack a search warrant for any reason that you can find that it's

[00:56:25] invalid.

[00:56:25] In federal court, it's very different.

[00:56:27] You actually have to prove a fact is false in a federal warrant sufficient enough to

[00:56:34] invalidate the warrant before you even get a hearing, which is hard to do.

[00:56:40] All right.

[00:56:41] Usually at a hearing, you develop this stuff.

[00:56:43] But here in federal court, you actually have some proof that there is a falsity in the

[00:56:48] warrant so big that an invalid is warrant before you get a hearing.

[00:56:52] Well, we had uncovered that there was an informant who had said that to the police officer in

[00:56:57] the warrant that he was buying drugs from our client.

[00:57:00] He had bought drugs from our client at house location A.

[00:57:05] Our client had moved to house location B, which is where the search was done.

[00:57:08] And he had helped to move all the equipment to house B from house A.

[00:57:14] Well, it turns out that the location of house A was a Safeway, not a residential building.

[00:57:21] And the Safeway was located right across the street from the police station that the cop

[00:57:26] worked at.

[00:57:26] So how could the cop not have known that location A was a Safeway and not a residence?

[00:57:32] So we filed a motion to suppress attacking the warrant on that basis.

[00:57:36] Well, the judge didn't want to give us a hearing, didn't think it was enough and didn't,

[00:57:41] you know, and so what?

[00:57:43] But we then, this is where you can dovetail a motion to eliminate with a motion to suppress.

[00:57:49] We said, well, judge, we've heard that this agent who wrote this affidavit is being,

[00:57:56] this cop, not an agent, is being investigated by the DEA.

[00:58:00] And we would like to know what that investigation is about.

[00:58:04] The government didn't want to turn that over.

[00:58:06] We had several hearings where the government refused to turn over saying it wasn't relevant.

[00:58:11] And the judge was leaning towards the government.

[00:58:13] And what happened was I'm outside in the courtyard in between a break in the hearing.

[00:58:19] And a reporter came up to me who was covering the story and said, how's it going?

[00:58:24] So we talked a little bit.

[00:58:25] And then the reporter says, well, what did you learn about the FBI investigation?

[00:58:30] And I'm like, I didn't know anything about an FBI investigation.

[00:58:34] I know about the DEA investigation.

[00:58:36] So I run back into court and say, judge, I've just learned that there's also an FBI investigation.

[00:58:42] And I demand to have that information.

[00:58:44] Well, this, at this point, the court's like, what's going on here?

[00:58:48] The government's stonewalling.

[00:58:50] And what happens?

[00:58:51] The government refuses to turn over.

[00:58:54] The court orders them to turn over the FBI and DEA investigation.

[00:58:57] The government refuses and dismisses the case.

[00:59:01] Oh.

[00:59:02] And this was a case that we had no defense.

[00:59:08] So when you're doing, you know, this is a little tip.

[00:59:11] When you're doing a motion suppress or a motion limit, you have to be fluid.

[00:59:14] You have to keep your mind open to how am I going to use this?

[00:59:17] Where else?

[00:59:18] What else is going on?

[00:59:19] Because you're not just stuck with that.

[00:59:21] It may lead you to something else.

[00:59:23] I mean, that was an example where I've won a lot of motion suppress, but I've never won a motion suppress like that.

[00:59:32] Wild.

[00:59:32] I love that story.

[00:59:34] I love that story, too.

[00:59:35] Nothing to see here.

[00:59:36] Don't worry.

[00:59:38] Smoke screen.

[00:59:41] This has been so terrific, Alexander.

[00:59:42] We always love talking to you.

[00:59:44] I'm wondering, is there anything we didn't ask you about motions to suppress or just things that you wanted to mention about either of these types of motions?

[00:59:53] Yeah.

[00:59:54] No, I mean, I think it's a fertile ground for lawyers.

[00:59:59] But I think as a defense attorney, you've got to change your expectations because we're not going to win.

[01:00:04] And that's just the fact of law.

[01:00:06] And it doesn't mean the judges are bad or ruling against us.

[01:00:10] It's just the law.

[01:00:10] It's not favorable to the defense at this point in time.

[01:00:14] And you're going to lose.

[01:00:15] So be creative and think of what am I going to get out of this?

[01:00:19] How am I going to use this to my benefit?

[01:00:21] And you'll be surprised at what may happen.

[01:00:27] Yeah, you might spark a whole chain that then leads to the revelation of an FBI investigation.

[01:00:32] Exactly.

[01:00:34] Casual.

[01:00:36] Might strike oil.

[01:00:38] Well, this has been so great.

[01:00:40] Thank you so much.

[01:00:41] This is wonderful.

[01:00:41] Yeah, we really appreciate it.

[01:00:42] You're welcome.

[01:00:43] I appreciate being on and letting people know what these things are about.

[01:00:47] Thanks to Alexander for coming on the show.

[01:00:49] Check out his book, The Mailbox Conspiracy, about a fascinating tale of public corruption in Hawaii.

[01:00:55] We'll include a link to that in our show notes.

[01:00:57] Thanks so much for listening to The Murder Sheet.

[01:00:59] If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com.

[01:01:08] If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[01:01:17] If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet.

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[01:01:37] We very much appreciate any support.

[01:01:41] Special thanks to Kevin Tyler Greenlee, who composed the music for The Murder Sheet, and who you can find on the web at kevintg.com.

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[01:02:11] Thanks again for listening.

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