Articles on South Carolina Law

The ABCs of Suppression Hearings in SC

by | Jun 27, 2017 | Criminal Defense, Drug Offenses

Can the evidence in my case be “thrown out?” 

Let’s say you are pulled over for a valid reason by law enforcement. They find drugs and decide to obtain a search warrant for your residence. Is this legal?

If the police enter your residence with the search warrant and they find drugs and seize them. Are these drugs admissible in court?

Under some circumstances, there is a chance the evidence can be “thrown out of court,” or suppressed. Evidence may be suppressed when the court finds law enforcement performed an illegal search and seizure and/or obtained a defective search warrant. If your Fourth Amendment Constitutional rights are violated, evidence of criminal wrong doing may be excluded from trial. For some, this can mean their entire case is dismissed!

Suppression Hearings: The Basics

The reason people have suppression hearings if to get evidence thrown out in their case. Whenever evidence is introduced that was allegedly obtained by the actions that violate someone’s constitutional rights, that person is entitled to a hearing. The hearing is outside of the jury’s presence.

In South Carolina, it’s called a Suppression Hearing or a “Jackson v. Denno Hearing” (from the 1968 case named Jackson versus Denno, 378 US 368, 84 S. Ct. 1774, 12 L.Ed. 2d 908). If you wish to challenge the evidence seized, you must either orally or in writing make a motion before the Court and convince the court there are factual and legal grounds that the evidence was seized in violation of your constitutional rights. The hearing begins before the trial begins, in a pretrial hearing or pretrial motion.

The judge will determine after the hearing whether the person’s constitutional rights were violated. The Judge will look at the totality of the circumstances to arrive at this conclusion. If the judge finds there was a violation, there is a chance the evidence will not be allowed to be introduced at a trial.

How Suppression Hearings Work


The procedure for petitioning the court for a suppression hearing begins with a defense attorney filing a motion with the Court. Along with this motion, the attorney will present a list of reasons (called a “brief or memorandum”) why the accused’s constitutional rights have been violated.

Once the defense attorney does this, the prosecutor typically files a response that will explain why the prosecutor believes the search and seizure were constitutional. Both briefs usually state prior case law to back up their arguments.

Common Questions:

What happens if the attorney for the accused wins a Suppression Hearing?

You want to find an attorney that can win your Suppression Hearing. If the Judge rules in the favor of the accused, it means all or certain evidence won’t be allowed to be introduced at trial. This means it would not be used against that person at trial. If a portion of the evidence is allowed, this may mean the prosecutor may offer the accused a better plea agreement than previously offered. In some cases, if enough evidence is suppressed, the entire case can be dismissed. If that happens there would be no reason to go to trial.

What happens if the attorney for the accused loses a Suppression Hearing?

Losing a Suppression Hearing can have dire consequences. Evidence (even newly discovered evidence) that comes to light during the hearing can be used against the accused. The evidence can be used against you in your trial.

What are some basic reasons for Motions to Suppress?

Unreasonable searches and seizures (4th Amendment violations) are the main reason Motions to Suppress are filed. Search warrants must be valid. Search warrants must be based on good faith statements, which are sworn by law enforcement called Affidavits.

The law enforcement officer who signs the affidavit must have personal knowledge. This does not necessarily mean that law enforcement officer had to be present on the traffic stop.

Law enforcement must swear under oath that what they are presenting to the judge is in good faith and is true. The judge must be neutral and detached. Search warrants and arrest warrants should always be supported by probable case.

For example, let’s assume you are pulled over on a traffic stop because you were speeding. The officer subjectively feels you are acting nervous and asks you to get out of your car. You should comply with this law enforcement command. The officer believes he/she then has probable cause to search your vehicle. If the officer cannot prove there was probable cause for the search, whatever items seized could be ruled inadmissible at the trial.

How can I get my statements that I made thrown out of court?

Previously I published an article on Miranda violations. In order for Miranda to apply, one must be in custody. In order to be in custody, a reasonable person in the same situation would not feel free to leave.

What are “chain of custody” errors under SC law?

There are times when police collect evidence and they do not maintain an official log or paperwork of where, when, who, and how the evidence was stored. For example, if drugs are seized on June 1, 2017, and they are sent to a lab in another state or jurisdiction on August 1, 2017, there should be a valid chain of custody explaining how the drugs were stored, who dropped them off, who picked them up, if they were properly maintained, etc. from June 1, 2017 until August 1, 2017. Keep in mind a chain of custody is not required for all evidence. Your lawyer will direct you on which types of evidence require chains of custody.

If there are errors in the chain of custody, this can be covered in a Suppression Hearing. Some errors can be corrected if the State/prosecution presents their witnesses in the chain of custody at trial and/or they are able to substantially prove the drug actually is what they claim it to be.

What happens at a suppression hearing?

Generally the State/government/prosecution will put their witnesses on the witness stand first. They will typically put up law enforcement officers who responded to the traffic stop and officers that were involved in obtaining the search warrant, particularly the Affiant on the warrant.

The defense counsel for the accused will then put up any witnesses they have. This may or may not include testimony from the person accused of the crime. This decision is made on a case by case basis and one should consult their attorney before deciding this.

The Suppression Hearing is a regular court hearing, not a trial. Every aspect and defense will not be litigated at this stage of the hearing.

It is not uncommon for the State and/or defense to request the witnesses be sequestered during a Suppression Hearing. This means that every witness, except for the Defendant and the case agent (and maybe others, such as expert witnesses) will be outside of the courtroom during testimony. They may not discuss their testimony before they testify and cannot discuss the case with others, especially those who have already testified. The purpose is to make sure each person gives a honest, accurate version of what they in good faith remember about the case.

After all evidence has been presented, the Judge will render a decision. It is not uncommon for a judge to “hold the decision in obeyance.” This means the Judge will not render his/her decision at the end of the hearing. The Judge will take time to research, think about it, and render a decision at a later date. The parties will be notified once the Judge makes his/her decision.

Does your case need a Suppression Hearing?

If you win a Suppression Hearing, some or all of the evidence taken by law enforcement may be thrown out and not admissible at trial. You may want to discuss your case with an attorney who can help prepare your defense.

Are you ready to talk to a lawyer? Set up a free consultation so our team can examine the facts of your case. You don’t have to fight this battle alone.

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