I have filed an appeal of suppression of the HGN Test in a DWI case.

The Defense attorney filed a boilerplate Motion to Suppress claiming that his client was arrested in violation of the the US and Texas Constitutions, and Art. 106, CCP. After hearing, the trial judge denied the Defense motion to suppress everything as fruits of an unlawfull arrest, but suppressed the HGN Test. The Judge entered findings of fact that the officer incorrectly administered the HGN Test, and that his testimony was neither credible nor reliable.

My appeal is that the Defense Attorney's motion did not raise any issue except violation of the Constitutions, and Art. 106.

I know that underMedrano, the Defense Attorney can in effect file a Motion in Liminie as a Motion to Suppress, and try to keep evidence out on grounds such as the Officer administered the HGN Test incorrectly, but don't I get notice of what Defendant's grounds for suppression are, so that I can prepare for them, and present evidence to the Trial Court that the evidence is admissible?

I found Buchanan v. State, which holds that a boilerplate Motion to Suppress will not preserve error if the Defendant loses, if the Motion to Suppress fails to give notice to the State and Court of an additional ground for suppression that may have had merit.

Is there a case that holds the Court cannot, at a Motion to Suppress hearing, deny the Defendant's motion, but sua sponte suppress the evidence for some other reason that the State did not have notice that it needed to prepare for?

If that is allowed to happen it will turn every Motion to Suppress into a mini trial, because the State will have to prove the admissability of all of its evidence, lest the trial Court decide that the State failed to prove the admissability of something the Defendant's Motion to Suppress did not seek to suppress.

If I knew the attorney was actually going to urge the motion to suppress and not just file as part of their standard set of motions, I would file special exceptions or at least orally get on the record specifically what the attorney was looking to suppress and why before we trotted out all our evidence. Then, if the attorney's cross went outside the scope of what was indicated, I would object.

Not saying don't do it, because for sure some judges need to be educated by being appealed and reversed. Don't know about yours... But, looking at it from the standpoint of presenting your case, I'd sure rather deal with that setback before trial than to have my witness's qualifications challenged when he's on the stand by the defense, and have the jury told by the judge that this officer is not a credible witness. Keep in mind, that ship has already sailed. And if you got your judge reversed, that's about the only possible result if you try to go into hgn at trial.

Good luck with it.

Sad statement on my life, but I went to bed thinking about Buchanan and woke up thinking about Buchanan!

Basically we have had some MARATHON suppression hearings because the defense wants to "see where it goes" after filing a general motion and then just fish around to find something to argue about.

For example: "I want to argue consent to search of my defendant passenger, so lets talk about whether the driver was speeding or not."

or my most recent favorite: "Because they are only misdemeanor warrants, I want so suppress the victim's rings found on defendant when he was arrested in a different county on those two warrants, so let's talk about Crawford statements made to police at the scene of the third assault."

So the special exceptions for future reference sounds like a great idea to me--is it possible to get a copy of what yours looks like?

Also, I was thinking about the HGN getting suppressed--did you ask for findings of fact/conclusions of law? HGN suppression would be a TRE 703 issue with scientific evidence--not properly applied in that particular case, right? I'm relatively new to all of this, but my first argument is that there is no 4th amendment search and seizure right against the officer wrongly applying science--so that couldn't be suppressed on a 4th amendment issue. Even bad HGN is still not improperly obtained--which is fourth amendment.

SO that led me to wonder, because the SFSTs are so strongly attacked in the suppression hearings--should that more appropriately be done in a gatekeeper hearing instead? And even if it's out as a gatekeeper issue, as shown by your judge, it doesn't affect the validity of the arrest, so these shouldn't even be addressed in search and seizure suppression motions? I guess if it's the ONLY evidence of intoxication it may affect the probable cause to arrest, so then after a gatekeeper, you would have to go and do a suppression again?

(Of course, in reality, if your judge suppressed it on his idea in the search and seizure suppression, he probably would suppress it again after a gatekeeper hearing, so that doesn't help you as far as getting the HGN into trial.)


I have found that most of my questions on this forum have been answered repeatedly in the early years of offices with prosecutors who have much experience...so any ideas about shortening/ limiting these suppression hearings would be appreciated!

I'd be delighted to share. Send me an email so I know where to send it: gchoe@austin.rr.com.

Something came to mind when I read your post: don't forget also to insist that the defendant prove up standing if the passenger in a car is the one attempting to suppress the stop. I don't know if that was your situation (or if what you were saying was that the passenger gave the consent to search when the driver was stopped, which I have also had come up and had to defend), but I just thought I'd mention it since I thought of it.

Thanks, I will e-mail you.

Interesting thought about the standing...I argued it repeatedly and the judge then said that there was a fifth circuit case and a US Supreme court case that both said if the passenger is given a possessory interest in the vehicle, they then have a right to argue the search. He didn't quote the case, but when he said that, the defendant then piped up from defense table "He released the car to me." which is not true, they were both arrested and the car was towed, but we then had a video malfunction so we never got to that part of the video and the judge postponed the case to see whether the vehicle was ever "released" to defendant.

I tried to argue that according to the officer it wasn't, and if the defendant wanted to testify under oath, he was welcome to, but the judge didn't want to "force" the defendant to testify if the video could serve the same purpose.

The officer testified that he told the passenger that after officer would search the vehicle incident to driver's arrest for DWLI, passenger said "go ahead" (of course, he didn't need passenger's consent, but that's just what the passenger said in response to the officer telling him what was happening and why he wasn't being allowed to drive the car away) and then he finds drugs which PASSENGER CLAIMS...after miranda...on the video.

So, the hearing is postponed, I may get another crack at the standing if I can figure out what case the judge was referring to.

I'm not sure about any federal cases, but in Welch v. State, 93 S.W.3d 50 (Tex. Crim. App. 2002), the CCA said a passenger had authority to give consent to search when the driver had turned the car over to him. So if he could consent to search, I'd assume he'd have enough standing to contest the search. I'm not sure of your facts, but that sounds roughly like what you're talking about.

Russell, no case to offer, but 28.01 specifically mentions only consideration of motions to suppress evidence. To me, that means any question of admissibility not presented in the motion (whether referring to an item of evidence or a different legal theory) is not subject to consideration at the pre-trial.

The real issue is how specific must the motion be. It is a real problem because usually the State agrees that it has the burden of showing the reasonableness of a warrantless search or admissibility of a defendant's custodial statement and starts offering evidence and then the fishing comes on cross examination. I have always argued that the scope of cross at these hearings should be limited to whatever was discussed on direct (contrary to the Texas rule at trial) and that 39.14 should cut out a lot of extraneous questions. What is so funny is the defense always wants to limit cross of the defendant under Simmons, but always wants to otherwise use the hearing for deposition purposes. Our former judge (wisely in my opinion) refused to grant a pretrial hearing on suppression motions (although a defendant could seemingly argue that once a pretrial is granted, the "shall" language in 28.01 requires a hearing on any motion to suppress). Neel makes a good point about your particular ruling, but your appeal would seem to involve some bigger issues to which all of us might like to know better answers. I am not sure I would call my objections to a motion to suppress "special exceptions." That just reminds me too much of civil practice.

i tried the same basic argument when a trial court granted a motion for new trial on a ground that wasn't alleged in the motion. even had a failure-to-put-the-ground-in-the-motion case to back me up. didn't work (although the court of appeals sidestepped the whole issue by mischaracterizing my argument).

in the end, i think the court of appeals will respect the factual finding that the officer wasn't credible and that will be that. they may even do some 20/20 hindsight action and say even if you had been given perfect notice the trial court wouldn't have believed what the officer would've said anyway. but i'm still bitter. you may be more deft than I.

did you object to a lack of notice at the hearing and attempt to keep the attorney focused upon illegal search and seizure?