The question arrives in almost the same words every time: can they even use that? A car was searched after a traffic stop that should have ended with a warning. A statement was taken in the back of a squad before anyone said anything about a lawyer. A warrant was issued on an affidavit that, read carefully, says less than it appears to. The client wants to know whether the evidence counts.
The answer is that it might not — but only if someone asks, in writing, in the right court, before a deadline that in most Wisconsin cases runs in ten days. A motion to suppress is not an argument you make at trial when the exhibit is offered. It is a pretrial proceeding with its own statute, its own hearing, its own burden, and its own waiver rule. The waiver rule is the part that costs people cases.
What a motion to suppress actually is
Start with the unglamorous definitions, because they explain the shape of everything else. Under Wis. Stat. § 971.30 (1), a “motion” is simply “an application for an order.” Section 971.30 (2) requires that, unless the court orders otherwise, every motion be in writing, carry a proper caption, and — the operative words — “state with particularity the grounds for the motion and the order or relief sought.”
Section 971.31 (1) then opens the pretrial door: “Any motion which is capable of determination without the trial of the general issue may be made before trial.” A suppression motion qualifies, because whether a search was lawful has nothing to do with whether the defendant did the thing charged. Those are separate questions, decided by different people, under different standards.
The remedy itself is constitutional rather than statutory. The Fourth Amendment’s exclusionary rule was made binding on the states in Mapp v. Ohio, 367 U.S. 643 (1961), and evidence derived from an unlawful search — the so-called fruit of the poisonous tree — is reached by the doctrine of Wong Sun v. United States, 371 U.S. 471 (1963). Wisconsin’s own constitution, article I, section 11, contains a search-and-seizure guarantee of its own. What Wisconsin’s statutes supply is the procedure: when you must ask, where, and what happens if you do not.
The deadline, and the waiver that follows it
This is the provision to read first, and it is blunt. Section 971.31 (2) provides that defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint or information, invalidity of the statute the prosecution rests on, or “the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived.”
And § 971.31 (5) (a) sets the clock: pretrial motions “shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.”
Three things follow that clients and even some lawyers get wrong.
First, the waiver is real and it has been upheld. Our Supreme Court held the waiver provision in sub. (2) constitutional in Day v. State, 52 Wis. 2d 122, 187 N.W.2d 790 (1971). A claim that an arrest was made without probable cause must be raised by pretrial motion. Lampkins v. State, 51 Wis. 2d 564, 187 N.W.2d 164 (1971). A challenge to the search of one’s person cannot be raised for the first time on appeal. Madison v. State, 64 Wis. 2d 564, 219 N.W.2d 259 (1974). There is no free pass for an argument nobody made in time.
Second, the ten days are not an absolute bar — the statute says “unless the court otherwise permits,” and courts frequently do permit, particularly where discovery has not yet produced the squad video or the warrant affidavit. But permission is a request granted at the court’s discretion, not a right. Relying on it is a strategy only in the sense that hoping is a strategy.
Third, there is a narrow surprise exception written into sub. (2) itself. The court may entertain the motion at trial, in which case the defendant waives any jeopardy that may have attached, and “the motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state’s possession of such evidence.” That is relief for genuine ambush, and it comes at the price of jeopardy — a real cost, not a technicality.
One timing wrinkle worth knowing: where the State begins a matter as a traffic citation and later decides to prosecute it as a crime, the defendant gets ten days from the date of the amended charge to object to the sufficiency of the complaint. State v. Mudgett, 99 Wis. 2d 525, 299 N.W.2d 621 (Ct. App. 1980).
In a felony, sequence matters as much as timing
Felony cases have an extra layer, and the order of operations is statutory.
Section 971.31 (5) (b) provides that in felony actions, motions to suppress evidence, motions under § 971.23, and objections to the admissibility of a defendant’s statements “shall not be made at a preliminary examination and not until an information has been filed.” The preliminary hearing is not the place to litigate the search. A motion filed after the information but before trial is timely even if the challenge was not asserted before arraignment. Rinehart v. State, 63 Wis. 2d 760, 218 N.W.2d 323 (1974).
Section 971.31 (5) (c) runs the other way and is easy to miss: in felony actions, objections based on the insufficiency of the complaint “shall be made prior to the preliminary examination or waiver thereof or be deemed waived.” That objection has to be raised earlier than the suppression motion, not later. Two different clocks, running in opposite directions, in adjacent paragraphs of the same subsection.
Statements are governed by a different rule
The admissibility of a defendant’s own statement — the confession, the roadside admission, the jailhouse phone call — is not handled under sub. (2) at all. Section 971.31 (3) provides that the admissibility of any statement of the defendant “shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.”
Read that carefully. The hearing happens either way. The defense choice is when. And the sub. (2) waiver rule does not apply to confessions, because sub. (2) is qualified by subs. (3) and (4). Upchurch v. State, 64 Wis. 2d 553, 219 N.W.2d 363 (1974).
That hearing has a Wisconsin name: a Goodchild hearing, after Goodchild, 27 Wis. 2d 244 (1965), and it is where voluntariness and the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), are litigated. It is an adversarial evidentiary proceeding, and our Supreme Court has said so in pointed terms: a Miranda–Goodchild hearing “is an evidentiary hearing for the parties. It is not a soliloquy for the court.” A defendant does not receive a full and fair hearing when the judge plays the prosecutor’s role and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798.
There is still a timing limit. A request for a Goodchild hearing made after direct testimony has concluded is not timely. Coleman v. State, 64 Wis. 2d 124, 218 N.W.2d 744 (1974). “Later” does not mean “whenever.”
You are not automatically entitled to a hearing
This surprises people, including people who have filed a motion and are waiting for a hearing date. Section 971.31 (4) provides that, except for statements under sub. (3), a motion shall be determined before trial unless the court defers it, and that “all issues of fact arising out of such motion shall be tried by the court without a jury.” No jury ever hears a suppression dispute.
But an evidentiary hearing “need not be granted as a matter of course when requested prior to trial.” The standards for granting one, drawn from Nelson, 54 Wis. 2d 489 (1972), together with the safeguards of Garner, 207 Wis. 2d 520 (1996), apply to a circuit court’s consideration of a pretrial motion. State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999). And a court is under no obligation to hold a hearing where the motion “presents nothing more than conclusory allegations and fails to show that there are any factual disputes that require a hearing.” State v. Radder, 2018 WI App 36, 382 Wis. 2d 749, 915 N.W.2d 180.
Which is why § 971.30 (2) (c)’s requirement to “state with particularity” is not boilerplate. A motion that says the search was unlawful earns nothing. A motion that says the officer extended a completed traffic stop by eleven minutes to wait for a dog, identifies the timestamps, and names the witness who will say so, earns a hearing. The pleading is the first half of the litigation.
The most valuable rule in the statute: a plea does not kill the appeal
Ordinarily a guilty or no-contest plea in Wisconsin forfeits most claims of error. Section 971.31 (10) carves out an exception that is worth more to defendants than anything else in the chapter:
“An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.”
This means a client who loses a suppression motion does not have to sit through a trial he expects to lose in order to preserve the issue. He can plead, take the sentence, and still have the appellate court decide whether the evidence should have been excluded. The Court of Appeals has described the purpose plainly: to promote judicial economy by giving defendants an incentive to plead in cases where the crucial question is whether the suppression ruling was right, since they know that if it was wrong their conviction will be reversed unless the State proves the error harmless. State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8. No separate motion to withdraw the plea is required to preserve the issue. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685 (1973).
Now the four limits, because each of them has ended an appeal.
- Harmless error still applies. Sub. (10) appeals are subject to a harmless-error test. State v. Armstrong, 225 Wis. 2d 121, 591 N.W.2d 604 (1999); Abbott, 2020 WI App 25. Winning the legal argument is not the same as winning the case.
- It does not reach civil forfeiture actions. Sub. (10) does not apply to civil forfeitures. County of Racine v. Smith, 122 Wis. 2d 431, 362 N.W.2d 439 (Ct. App. 1984). In Wisconsin a first-offense OWI is prosecuted as a civil forfeiture rather than as a crime, so the plead-and-appeal path that exists in a criminal case is not available in the same way. That is a reason to think hard before resolving a first offense while a suppression issue is live.
- It only covers suppression and statement rulings. Other pretrial evidentiary rulings are not preserved by the statute. A defendant who pleaded guilty waived the right to appeal the trial court’s ruling on other-acts evidence. State v. Nelson, 108 Wis. 2d 698, 324 N.W.2d 292 (Ct. App. 1982).
- The evidence has to matter to the count you plead to. Sub. (10) is inapplicable where the statement sought to be suppressed has no possible relevance to the charge the defendant actually pleaded to. State v. Pozo, 198 Wis. 2d 705, 544 N.W.2d 228 (Ct. App. 1995). In a multi-count case, what survives on appeal depends on which counts the plea covers.
One extension worth noting: a finding of not guilty by reason of mental disease or defect is a judgment of conviction for these purposes, so sub. (10) applies to it. State v. Smith, 113 Wis. 2d 497, 335 N.W.2d 376 (1983).
What suppression does not reach
Three limits are built into Wisconsin law, and all three disappoint clients who expected a paperwork error to end the case.
Technical irregularities in a warrant. Section 968.22 is one sentence: “No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.” An incorrect building address was a technical error where the search was of the building the informant identified and which was otherwise correctly described. State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993). Mistakes on the face of a warrant that twice misidentified a car were technical where the executing officer attached an affidavit correctly identifying the car three times by color, make, model, style, and plate, from personal knowledge. State v. Rogers, 2008 WI App 176, 315 Wis. 2d 60, 762 N.W.2d 795. The question is never whether the paperwork was clean; it is whether the error affected substantial rights.
Defects in form in the charging document. Section 971.26 provides that no indictment, information, complaint, or warrant is invalid, and no trial or judgment affected, “by reason of any defect or imperfection in matters of form which do not prejudice the defendant.” Prejudice is the test there too. And § 971.31 (8) adds that no proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court, which may order a curing amendment. If dismissal is granted on a defect in the charging document or in the institution of the proceedings, § 971.31 (6) lets the court hold the defendant or continue bail for up to 72 hours while the State files again.
Revocation hearings. If a client is on probation or extended supervision, the suppression remedy does not travel with him into the administrative hearing. Wis. Admin. Code § HA 2.05 (6) (c) permits the administrative law judge to admit evidence gathered by means not consistent with ch. DOC 328 or in violation of the law. The same search that gets evidence thrown out of the criminal case can still support revocation. (See our post on probation and extended-supervision revocation.)
A related tool with a sharper edge: discovery exclusion
Suppression is not the only way evidence gets kept out, and the discovery statute’s sanction is in some respects stronger. Section 971.23 (7m) (a) provides that the court “shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply,” and that the court may in appropriate cases grant a recess or continuance instead. Under § 971.23 (7m) (b), the court may additionally advise the jury of a failure, refusal, or untimely disclosure.
Note the verb: shall exclude, with good cause as the only escape. That is a different posture from a constitutional suppression motion, where the defense carries the argument uphill. Both belong on the pretrial checklist, and in felony cases § 971.31 (5) (b) puts § 971.23 motions on the same post-information timetable as suppression.
What this means practically
Get the date of the initial appearance or the arraignment and count ten days from it. That is the real deadline, and it starts running while the client is still absorbing the fact of being charged.
Ask for discovery immediately, because a particularized motion cannot be written without the squad video, the body camera, the dispatch log, the warrant, and the affidavit behind it. If those have not arrived, the motion to make is the one asking the court to extend the time “as the court otherwise permits” under § 971.31 (5) (a) — filed inside the ten days, not after them.
Separate the search question from the statement question in your own mind. They run on different tracks under subs. (2) and (3), and a Goodchild hearing is not a suppression hearing even when both arise from the same arrest.
And if a suppression motion has already been denied, do not assume the only choices are trial or surrender. Section 971.31 (10) exists precisely so that a client can accept a resolution and still have the search reviewed — with the forfeiture, relevance, and harmless-error limits above very much in mind.
Talk to a New Berlin criminal defense lawyer
Carson Law Office litigates suppression motions in New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities — traffic-stop extensions, warrantless vehicle and residence searches, warrant-affidavit challenges, and the voluntariness and Miranda questions that come up at a Goodchild hearing. If evidence in your case came from a stop, a search, or an interrogation you think was unlawful, the ten-day clock in § 971.31 (5) (a) is already running. Call (262) 860-8932 or email christopher@carsonlawoffice.com. You can also read more about our criminal defense practice, our posts on your rights during a stop, a search, and questioning and the difference between a felony and a misdemeanor, or contact us to arrange a consultation.
Carson Law Office · 15350 West National Avenue, Suite 101, New Berlin, WI 53151 · (262) 860-8932
This article is general information about Wisconsin criminal procedure and is not legal advice. Statutes and court rules are amended from time to time, deadlines in your own case may differ from the statutory default because a court has set a different schedule, and every suppression question turns on its own facts. Follow the dates in the orders and notices you receive from the court, and speak with an attorney about your own case.