The following form is a Motion that adopts the "notice pleadings" format of the Federal Rules of Civil Procedure, which have been adopted by most states in one form or another.
West Virginia Motion to Suppress Evidence when Property was Seized as Result of an Unlawful Search, Seizure, and Arrest
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FAQ
Rule 412 is a new "rape shield" rule. The rule is intended to provide the standard for the introduction of evidence of a victim's sexual history. The rule supersedes the rape shield statute, W.Va. Code § 61-8B-11, to the extent that the statute is in conflict with the rule.
ARTICLE 1A. SEARCH AND SEIZURE. If the judge or magistrate is satisfied that there is probable cause to believe that grounds therefor exist, he shall issue a warrant identifying the property and particularly describing the place, or naming or particularly describing the person, to be searched.
While in general, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the material in question was seized in violation of his constitutional rights, there are several situations where the burden shifts to the government. United States v.
The standard of proof for a motion to suppress evidence is ?preponderance of the evidence.? This means that whatever side has the burden of proof must show that it is more likely than not their position is correct.
The concept of a motion to suppress is based on the ?exclusionary rule.? The exclusionary rule, grounded in the Fourth Amendment, excludes from trial evidence obtained in violation of a defendant's constitutional rights and protects citizens from unlawful searches and seizures.
Rule 41 - Search and seizure (a)Authority to issue warrant. - Upon the request of a law enforcement officer or an attorney for the state, a search warrant authorized by this rule may be issued by a magistrate or a judge of a circuit court within the county wherein the property or person sought is located.
The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute. The burden of proof is usually on the person who brings a claim in a dispute.
For instance, evidence seized pursuant to an unlawful arrest may be suppressed at trial, while a voluntary confession made after that arrest will not automatically be suppressed. But if the confession is too closely tied to the illegal arrest which may not be truly voluntary, it may be suppressed; see Wong Sun v.
