In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.
Radder’s suppression motion alleged the police lacked reasonable suspicion to stop the car he was driving and continue to detain him after the stop and lacked probable cause to arrest him for OWI. It asserted there were insufficient indicia of impairment—whether through Radder’s driving or “behavior and demeanor”—and that the field sobriety tests were “improperly administered,” though without detailing how. The motion did not address the officer’s suspicion that Radder’s registration was expired, which was the reason he gave for the initial stop, or the specific factual allegations of impairment detailed in the complaint. (¶5). The circuit court denied the motion without a hearing as “a boiler plate [sic] motion that fails to state any factual basis for the motion or how the legal grounds apply to the case.” (¶6). So Radder filed an amended motion to suppress that added some details but remained largely conclusory, and the circuit court denied that motion, too, without a hearing. (¶7). The court of appeals agrees Radder’s motions weren’t specific enough to warrant a hearing.
Section 971.30(2)(c) requires motions to “[s]tate with particularity the grounds for the motion and the order or relief sought” in order to provide notice to the other party and the court what issues are being raised, State v. Caban, 210 Wis. 2d 597, 605-06, 563 N.W.2d 501 (1997), and to conserve “scarce judicial resources by eliminating unnecessary evidentiary hearings when there may be no disputed facts requiring resolution, or when the facts would not warrant the relief sought even if proved,” State v. Velez, 224 Wis. 2d 1, 12, 589 N.W.2d 9 (1999). It also ensures that the evidentiary hearing will serve as more than a discovery device. Id. Thus, pretrial motions, like postconviction motions, must “alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing,” Velez, 224 Wis. 2d at 11, and if the motion fails to allege sufficient facts to raise a question of fact or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court may deny the motion without a hearing. (¶¶8-11).
These are the same basic standards that apply to postconviction motions; yet a defendant filing a pretrial motion won’t have the kind of fully developed record that should be available postconviction. The cases therefore recognize that in pretrial litigation a court must provide the defendant the opportunity to develop the factual record when the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel’s legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant’s motion may prevail. Velez, 224 Wis. 2d at 13 (quoting State v. Garner, 207 Wis. 2d 520, 533, 558 N.W.2d 916 (Ct. App. 1996)). (¶¶12-13).
Contrary to Radder’s argument, this pleading standard applies even to Fourth Amendment challenges, where the state has the burden to justify a warrantless seizure or search:
¶15 …. As an initial matter, [Radder] confuses the State’s burden during a suppression hearing with his obligation to state the grounds for his motion with particularity. He is surely correct that the State bears the burden at a suppression hearing to prove that a warrantless seizure is constitutionally reasonable. See State v. Taylor, 60 Wis. 2d 506, 519, 210 N.W.2d 873 (1973). But a movant still bears the burden of demonstrating a need for an evidentiary hearing in the first place. An evidentiary hearing exists to expose and settle factual disputes, and such a hearing is only warranted when a movant can, at the very least, show a reasonable possibility that a hearing is needed to allow the defendant to establish the necessary factual basis to succeed on the motion.
¶16 The real heart of Radder’s argument is that simply by raising the burden-of-proof-shifting claim that a warrantless search has taken place, he in fact has stated enough to satisfy Wis. Stat. § 971.30. He is wrong. Our supreme court has explained,
The rationale underlying [Wis. Stat.] § 971.30’s particularity requirement is notice—notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues. Neither the principle of notice, nor Wis. Stat. § 971.30 makes an exception for motions raising Fourth Amendment challenges.
Caban, 210 Wis. 2d at 605-06 (citations omitted). The fact that the State would bear the burden of proof at a hearing does not mean Radder simply gets to raise questions and put the State to its proof. Circuit courts do not need to hold evidentiary hearings on demand, even for Fourth Amendment claims. While it is true that neither Garner nor Velez specifically addressed pretrial Fourth Amendment claims, the rationale applies just the same. The court must guard its use of scarce judicial resources, and the State is entitled to notice of the factual disputes supporting a purported constitutional violation…. The court is under no obligation to hold an evidentiary hearing if a defendant’s motion presents nothing more than conclusory allegations and fails to show that there are any factual disputes that require a hearing. This is both practical and, in our view, the best reading of the applicable law set forth in Garner and Velez….
Applying this standard to Radder’s motions, the court concludes the motions were not sufficiently particular to entitle him to a hearing and therefore the circuit court didn’t erroneously exercise its discretion by denying the motions without a hearing. (¶¶18-23).
Judge Reilly concurs, but only because he concludes (and laments) that evidentiary hearings on suppression motions are no longer required after State v. Zamzow, 2017 WI 29, 374 Wis. 2d 220, 892 N.W.2d 637, which held defendants have no Sixth Amendment right to confrontation at a suppression hearing. He fears Zamzow means suppression claims can be disposed of based on a “paper review” of hearsay evidence in, e.g., the criminal complaint. (¶¶27-32).
Eloquent as this lamentation is, however, don’t overlook (and, if necessary, don’t fail to cite) State v. Jiles, 2003 WI 66, ¶35, 262 Wis. 2d 457, 663 N.W.2d 798, where the supreme court observed that “it will be a rare case that the State is able to meet its burden of proof at a Miranda-Goodchild hearing [regarding whether a statement must be suppressed] by relying exclusively on an unsworn police report” and indeed held that the state had failed to meet its burden in that case.