Can a criminal defense lawyer file a broad 'blanket' motion to suppress, and must the lawyer investigate every ground first?

Currency note

This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 3.3 on candor to the tribunal, 3.1 on meritorious claims, and 1.1 on competence) before relying on any specific rule mentioned here.

Plain-English summary

A criminal defense lawyer asked whether filing a "blanket" motion to suppress in an OMVI case violates the disciplinary rules. The lawyer had filed a motion to suppress that included an allegation that the officer who calibrated the Intoxilyzer was not qualified; the motion was granted because the State failed to establish that the instrument had been calibrated by a senior operator. After the case, the prosecutor wrote claiming a violation of DR 7-106(C)(1), which bars a lawyer appearing before a tribunal from stating or alluding to any matter that will not be supported by admissible evidence, because the lawyer admitted knowing the officer was a qualified senior operator.

The Board discussed Anderson's Ohio Criminal Practice and Procedure, which advises that a motion to suppress be specific enough for the prosecutor to prepare and that a focused motion is more persuasive than a shot-gun approach. The Board agreed but did not believe a blanket or shot-gun motion to suppress rises to a disciplinary violation, reasoning that it would be impractical to prohibit defense lawyers from alluding to matters they know may not be supported by admissible evidence, that Crim. R. 12(B)(3) requires pretrial filing of suppression motions and failure to raise grounds waives them under Crim. R. 12(G), and that failing to raise uncertain issues could prejudice the defendant or lead to an ineffective-assistance claim. The Board concluded a defense lawyer may file a blanket motion to suppress, but stressed that no lawyer may ever state or allude to a fact the lawyer knows to be untrue, and that a defense lawyer should make some investigation before filing.

Common questions

Q: Does filing a broad "blanket" motion to suppress violate the Code?

A: No. The Board concluded that filing a blanket or shot-gun motion to suppress does not rise to a disciplinary violation, given the pretrial-filing and waiver rules in criminal cases.

Q: Must the lawyer fully investigate every ground before filing?

A: No. The Board concluded a criminal defense lawyer is not required to conduct a complete investigation before filing a motion to suppress, though it stated the lawyer should make some investigation.

Q: Could the lawyer assert grounds known to be false?

A: No. The Board stressed that no lawyer may state or allude to any matter before a tribunal that the lawyer knows to be false, citing DR 7-106(C)(1) and the duty not to deceive a court.

Background and rules framework

The opinion applies former DR 7-106(C)(1) of the Ohio Code of Professional Responsibility (not asserting unsupported matters before a tribunal), read with the criminal procedure rules on suppression motions. The current parallels are Ohio Prof. Cond. R. 3.3 (candor toward the tribunal), 3.1 (meritorious claims and contentions), and 1.1 (competence), with Model Rules 3.3, 3.1, and 1.1.

Citations and references

Rules of Professional Conduct:

• Former DR 7-106(C)(1), Ohio Code of Professional Responsibility

Court rules:

• Ohio Crim. R. 12(B)(3) (pretrial motions to suppress) and 12(G) (waiver of grounds not raised)

Other authorities cited:

• Anderson's Ohio Criminal Practice and Procedure, Section T23.5, on the specificity of suppression motions

See also

• Ohio BPC Opinion 1988-025: Prosecutor Statements After a Completed Investigation
• Ohio BPC Opinion 1988-008: Part-Time Prosecutors and Criminal Defense

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-033.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 88-33
Issued December 20, 1988

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: It is not a violation of the Code of Professional Responsibility for a criminal defense lawyer to file a "blanket" motion to suppress on behalf of his or her client. However, no lawyer, in appearing in his or her professional capacity before a tribunal, shall state or allude to any matter that he or she knows to be false. Given the time constraints of some criminal cases, a criminal defense lawyer cannot be required to always conduct a complete investigation of a client's case prior to filing a motion to suppress.

OPINION: We have before us your request for an advisory opinion on whether it is a violation of the disciplinary rules for a criminal defense lawyer to file a "blanket" motion to suppress in an OMVI case. In your particular situation, you filed a motion to suppress on behalf of a client, which contained specific reasons for the suppression including an allegation that the calibrating officer who checked the calibration of the Intoxilyzer machine was not qualified to do the calibration. According to your request, the motion to suppress was eventually granted, based upon the fact that the State failed to establish as a foundation for admission of the Intoxilyzer results that the instrument had been calibrated by a senior operator.

After final disposition of the case, the prosecutor wrote you a letter claiming that you violated DR 7-106(C)(1) which states,

[i]n appearing in his professional capacity before a tribunal, a lawyer shall not...state or allude to any matter...that will not be supported by admissible evidence.

The prosecutor's position is that, most likely, there was no question in your mind that the officer did possess a senior operator's permit when he checked the calibrations of the machine and that, at a minimum, you should have made an inquiry regarding this matter prior to filing the motion to suppress. In your request letter you admit that you knew that the officer was a qualified senior operator.

Anderson's Ohio Criminal Practice and Procedure, section T23.5, states that a motion to suppress should be specific enough to allow the prosecutor to prepare for the evidentiary hearing. Furthermore, Anderson's submits that

defense counsel seems well advised to make his motion to suppress as specific as possible. While the shot-gun approach in a motion to suppress is not uncommon, a more persuasive motion to suppress is normally the one that focuses directly on the specific issue or issues that the defendant intends to raise.

We agree with this discussion but do not believe that a blanket motion to suppress or the shot-gun approach rises to the level of a disciplinary violation. It would be impractical to prohibit criminal defense lawyers from stating or alluding to any matter which they know may not be supported by admissible evidence. Moreover, the criminal defense lawyer is required to file any motion to suppress prior to trial. Rule of Crim. Proc. 12(B)(3). Failure to raise any motion to suppress evidence prior to trial would constitute waiver thereof. Rule of Crim. Proc. 12(G). In addition, failure to raise those issues in a motion to suppress, which the criminal defense lawyer is unsure of, threatens interference with a defendant's rights or could lead to an ineffective assistance of counsel claim.

Therefore, it is our opinion that the criminal defense lawyer should not be prohibited from filing a blanket motion to suppress. However, we do not purport to advise that a lawyer is ever permitted to state or allude to any court a fact which he or she knows to be untrue. Clearly, all lawyers are prohibited from ever deceiving any court of law.

In regard to making an investigation prior to filing a motion to suppress, we believe that a criminal defense attorney should make some investigation.

In conclusion, it is our opinion and you are so advised that a criminal defense lawyer may file a "blanket" motion to suppress on behalf of his or her client. However no lawyer, in appearing in his or her professional capacity before a tribunal, shall state or allude to any matter that he or she knows to be false. A criminal defense lawyer is not required under the Code of Professional Responsibility to conduct a complete investigation of a client's case prior to filing a motion to suppress.

This is an informal, non-binding advisory opinion based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility.