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Motion To Suppress Evidence – Penal Code 1538.5

If you were pulled over for no reason or the subject of an unlawful detention, search or arrest, the remedy to combat such illegal behavior is referred to as a Motion To Suppress Evidence. The goal of this motion is that all evidence gathered after the illegal behavior is suppressed, not allowed into court. Generally, most of the incriminating evidence, especially in DUI cases, is gathered or observed after an unlawful search and seizure.

For example, if one is pulled over for an invalid reason, all evidence gathered or observed after the stop would be suppressed. Such evidence would include: any blood or breath test result, any observations of the officer in regards to slurred speech, an odor of alcohol coming from the person or vehicle, any results of the field sobriety tests, basically all of the evidence in the case. In this context, assuming the District Attorney did not appeal the decision, the case would likely be dismissed for insufficient evidence.

The right to file such a Motion comes from several sources, the first being the Fourth Amendment to the United States Constitution, which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Colonial Untied States, the British used what was referred to as a “writ of assistance.”  A “writ of assistance” was a written order by a court to a law enforcement officer to carry out a duty.  British custom officers would receive these “writs” which gave them the ability to search anyone, or any property, with no reason or explanation. Further, the writs were permanent and could be transferred between parties, meaning an officer could assign a writ to another party. The holder of the writ was not responsible for any damage they caused. This clearly caused massive resentment in the States, and these “writs of assistance” were challenged in court by James Otis in Boston, Massachusetts. Otis lost, but John Adams was present in Court, and later appointed Otis to the Virginia Legislature, where the first law was passed outlawing such “writs of assistance,' and thus formed the foundation for the Fourth Amendment and the American Revolution.

Initially, the Fourth amendment was only applied to Federal matters. The states were not bound by it. It was not until 1961, that the United States Supreme Court, in the case of Mapp v. Ohio 367 US 643 (1961), declared that the Fourth Amendment also applied to the states. That decision flooded the United States Supreme Court and State Courts throughout the country with Fourth Amendment Cases. Much of the law today dealing with the Fourth Amendment was decided in the 1960s.

Today, the California Legislature has enacted Penal Code 1538.5, which along with the Fourth Amendment, provides the statutory authority to challenge unconstitutional searches and seizures.  You can read the text of Penal Code 1538.5 here.

  1. When to conduct the motion:
    1. In misdemeanor cases, there can be strict deadlines for setting a Motion to Suppress.  By law, the motion must be made prior to trial.
    2. The best practice is to file the motion within 45 days of the arraignment. This preserves the option of pretrial review by way of a writ. See Penal Code 1510

i.      The arraignment continues until a plea is entered. See Penal Code 988, 1024

  1. In felony matters, according to PC 1538.5(i), the defense can select between:

i.      Having the 1538.5 motion heard with the preliminary hearing, followed by limited special hearing if the defendant is held to answer; or

ii.      Having the 1538.5 motion heard after the preliminary hearing.

  1. Having the 1538.5 heard with the preliminary hearing:

i.      The 1538.5 only deals with the evidence the prosecution will introduce at the hearing.

ii.      The motion must be filed 5 court days before the hearing, as opposed to the normal 10 court days.

  1. The prosecutor has to serve their response at least two court days before the hearing.
  2. In San Diego County, the local court rules apply, and they specify 15 court days. Every County has different rules in regards to notice. If the County has no rules in regards to notice, the statewide court rules apply, discussed above.

iii.      After the preliminary hearing, the special limited hearing only deals with evidence presented at the preliminary hearing or evidence that the defense had no way of knowing about during the first 1538.5 hearing.

  1. Generally, no new evidence is presented, and the Court and the defense only argue the law based off of the preliminary hearing transcript.
  2. Having the 1538.5 heard after the preliminary hearing: all of the evidence in the case can be attacked, as opposed to just the evidence the prosecutor introduces.

i.      Normal notice requirements of 10 court days applies.

ii.      To preserve the ability to file a writ if the motion is denied, the motion must be filed or heard within 60 days of the arraignment in felony court.

  1. Normally, the 1538.5 motion must be heard prior to trial, however, it may be made during the course of trial:

i.      If defendant was previously unaware of the basis of the motion

  1. Unless the defense should have known of the basis (People v. Martinez (1975) 14 C3d 533); or

ii.      There was no chance to make the motion before trial.

iii.      The Court is not allowed to reconsider a 1538.5, prior to trial, which was already decided even with new evidence or new law. (People v. Dubose (1971) 17 CA3d 43)

  1. The only option for the defendant in that scenario is to make the motion during trial as discussed above.
  2. Burden of Proof: the burden is different when a search or seizure is conducted with a warrant or without a warrant.
    1. Without a Warrant: Broadly speaking, a search conducted with no warrant is presumed to be illegal, however many exceptions to the warrant requirement exist.

i.      The burden of justifying a warrantless search is on the District Attorney.

  1. The burden is also on the District Attorney if there was a warrant, but the search:
    1. Exceeded the scope of what the warrant allowed; or
    2. Evidence not originally targeted in the warrant was seized.
    3. With a Warrant: the burden is the opposite when there is a warrant: it is presumed to be a legal search or seizure, and the criminal defense attorney has the burden to show the warrant:

i.      Was not executed properly;

ii.      Or was not valid.

  1. Even under this scenario, Courts will not automatically suppress the evidence seized if law enforcement executing the warrant relied in good faith on the warrant being valid.
    1. Of course, the prosecution has the burden of showing that this reliance was objectively reasonable. (U.S v. Leon (1984) 468 US 897)
    2. The “good faith” exception applies to execution of search warrants and bench warrants.
    3. U.S v. Leon labeled four separate scenarios where “good faith” reliance was unacceptable and thus could not preclude the suppression of the evidence:
      1. The magistrate abandoned neutrality and disinterest;
      2. The magistrate issuing the warrant was misled by the officer who submitted the affidavit for the warrant, who knew or should have known the information was not true;
      3. The affidavit was so deficient in indications of probable cause that it would be unreasonable for any officer to believe probable cause existed; and
      4. The warrant was so vague in the places to be searched or items to be seized that the officers executing the warrant could not have reasonable believed it to be valid.
  2. Standard of proof: The standard of proof at a Motion to Suppress Evidence pursuant to Penal Code 1538. 5 is preponderance of evidence. (People v. James (1977) 19 C3d 99
    1. As stated in People v. Dickerson (1969) 273 CA 2d 645, because this is the standard, when there is a factual inconsistency in the testimony, the testimony on both sides is credible, and there is no warrant, the motion should be granted.

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