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Can The Officer Admit Hearsay Evidence At A Motion To Suppress Hearing?

Experienced Trial Attorney in Douglas County

Rules of evidence except those with respect to privileges do not apply to motions to suppress. Preliminary fact questions at a suppression hearing are treated the same as preliminary fact questions generally and thus subject to OC GA 24-1-104 (A). Cases under pre-2013 law were not always clear regarding whether hearsay was admissible at a suppression hearing. Part of the problem was Georgia's unique position that hearsay was illegal evidence with no probative value, a position that is rejected in the 2013 rules.

Courts also were not always clear as to when an out-of-court statement was truly hearsay when offered in the context of a suppression hearing. In determining probable cause or reasonable suspicion, out-of-court statements typically would not be offered for their truth but rather for their non-hearsay use as an effect on the hearer. When an officer arrests a suspect or searches a car based on what he has heard, the issue at the suppression hearing is not whether what he heard was true but whether what he heard was sufficiently reliable to constitute probable cause and legally justify the subsequent steps that the officer took.

In Daniel, for example, the out-of-court statement was offered to show that the officer had probable cause to order a blood test for alcohol. In Durden, the issue is whether the owner of the trailer had consented to a search. The out-of-court statement of the owner consenting to the search is not hearsay, it is not offered for its logical truth but offered only for the mere fact that it was said, thus proving that consent was given. In any event, under the new 2013 rules, out-of-court statements, whether offered at a suppression hearing for their truth or only to evaluate police conduct, are admissible. When offered for the truth, the trial court must decide whether their hearsay character so reduces their reliability that the facts are not proven by a preponderance of the evidence. In other words, the hearsay character of the evidence goes to weight, not admissibility. See Souder v. State 301 Ga. App. 348 (2009).

In Souder an Ofc. May testify about information that he obtained from others to explain his conduct and to provide a basis for making a warrant-less arrest. The existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not the hindsight, the material inquiry is whether the facts within the officer's knowledge at the time of the arrest constituted reasonable trustworthy information which was sufficient to authorize a prudent person to believe that the suspect committed an offense. A suppression hearing deals with what the government knew, whatever its source. In effect, in a probable cause hearing the hearsay evidence is admitted not for its truth but for the purpose of establishing what was known. The court must then weigh the knowledge in light of its reliability to determine if a reasonable officer would believe a crime had been committed and defendant was the culprit.

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