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Motions to Suppress Evidence California Penal Code 1538 5 PC

By Spodek Law Group | July 8, 2021
(Last Updated On: December 21, 2022)

In California criminal cases, a motion to suppress proof is a pre-trial motion by the accused asking the court to exclude evidence gained by way of an illegal search. Often called a “suppression motion” or “1538.5 motion,” an accused makes the motion either 

(1) as part of the preliminary hearing or

 (2) at a separate pretrial hearing.

Penal Code 1538.5 provides that a bar shall suppress evidence that was acquired:

  • Through an unreasonable police search that was done without a search warrant,2 OR
  • Through a police search conducted with a warrant, IF
    • The warrant was lacking required elements,
    • The evidence obtained was not the type described in the warrant,
    • The warrant was issued without any probable cause, or
    • The search was carried out in a manner that violated the California Constitution or the U.S. Constitution.

The Process for a Penal Code 1538.5 motion to suppress evidence

Based on whether you are charged with a crime , your motion to suppress  record may be addressed:

  • During your preliminary hearing, or
  • During a pretrial hearing held specifically to inscribe your motion to suppress 

A motion to suppress evidence is just one type of pre-trial motion that your criminal defense attorney may file in order to initiate a fight against the charges against you before your  case even begins. Other pretrial motions incorporate Penal Code 995 PC motions to set aside the information, and Pitchess motions to get more information on potential police misconduct.

In order to help you better know how a Penal Code 1538.5 PC motion to repress works, the California criminal defense attorneys of Spodek Law Group will teach you the following:

  1. What exactly is a 1538.5 motion?
  2. What occurs at a motion to suppress hearing?
  3. Are there other pretrial motions to put forward?

1. What exactly is a 1538.5 motion?

California Penal Code section 1538.5 PC authorizes an accused to move for the elimination of any evidence that is result of an unlawful search and/or the return of any possession that was illegally seized.

The actual legal definition of an “unlawful search or seizure”

Penal Code 1538.5 PC gives the reasons why a search or seizure may be illegal—and, by extension, why a motion to suppress the evidence uncovered in that search may be honored.

The criteria are:

  1. The search was executed without a search warrant, and was “unreasonable.”
  2. The search was executed with a warrant but was unreasonable, for one of the following reasons:
  1. The warrant was inadequate on its face,
  2. The property was not of the kind described in the warrant,
  3. The warrant was issued without probable reason,
  4. The warrant was executed in a way that breached the California constitution or the U.S. Constitution 
  5. There was any other infringe of state or federal constitutional standards.

The Burden of proof for a motion to suppress

The question of who bears the burden of proof relies on whether or not the search or seizure was conducted without a warrant

In particular:

  • If the search was executed without a warrant, the supposition is that it was unreasonable—and the burden is on the lawyer to prove that it was actually reasonable
  • If the search was conducted with a warrant, then it is assumed to have been legal—and the burden is on the defense to prove that it wasn’t.

The actual legal definition of “reasonable expectation of privacy”

Before the judge will even look at your 1538.5 motion to suppress evidence, you must prove that you had a “reasonable expectation of privacy” in the place that was explored  or the items that were seized. 

Places and property in which one does not have a reasonable expectation of privacy in California law include:

  • Abandoned property 
  • A vehicle  which you have stolen
  • A car in which you are riding…however  you have no ownership 

On the other hand, one can have a reasonable expectation of privacy in

  • Their home,
  • Their vehicle,
  • The contents of their mobile phone,
  • A tent designed to protect inhabitant from public view
  • For public school students, the personal belongings that they carry to school.

 The concept of “derivative” evidence / fruit of the poisonous tree

a motion to suppress evidence may also apply to other evidence that is the indirect result of an illegal search. This is referred to as “derivative” evidence. 

If you attempt to argue through a Penal Code 1538.5 motion that certain evidence is “fruit of the poisonous tree” and should be eliminated, the prosecution will try to get the proof admitted anyway by arguing one of three theories:

  1. that the possibly tainted proof is so far removed from the illegal search or seizure that is doesn’t make sense to enforce the exclusionary rule,
  2. that the evidence was found through an independent way
  3. that there is a “reasonably strong probability” that the evidence would have ultimately been discovered even without the illegal exploration.

2. What occurs at a motion to suppress hearing?

For Misdemeanor charges

If one faces only misdemeanor charges, your criminal defense lawyer may file a 1538.5 motion to suppress evidence as early as your California arraignment.

For Felony charges

If you face felony charge your defense lawyer has 2 options:

  1. your lawyer may insist this motion at your preliminary hearing 
  2. your lawyer may choose to wait and have the motion to suppress handled at a special suppression hearing devoted only to this issue

The Suppression hearing

The suppression hearing is where both parties have the opportunity to argue their positions on the motion to suppress. It happens before a judge—not a jury.

The suppression hearing will include some or all of:

  • Testimony from you about the unlawful   search,
  • Testimony from any witnesses who can assist your case,
  • Evidence from the police involved in the search 
  • Cross-examination of you and your witnesses by the attorney for the accomplishment,
  • Cross-examination of the prosecution’s witnesses by your prosecutor, and
  • Oral arguments by your criminal defense advocate and the prosecuting attorney 

Penal Code 1538.5 suppression hearings must adhere to the rules of the California Evidence Code. 

Final ruling on a motion to suppress evidence

Once the judge has heard all of the arguments , he or she must rule whether to exclude or admit the controversial evidence. Depending on the details of the situation , the judge may also decide to grant the suppression motion in part—excluding some, but not all, of the evidence in question.

If the motion to suppress evidence is granted, the district attorney’s case against you may well fall apart. He or she may choose to

  • dismiss the charges against you, or
  • propose a generous plea bargain.

But if the district attorney is determined to press forward with the charges nevertheless, he or she may also

  • appeal the granting of the motion to suppress evidence,
  • dismiss the charges and file a new objection ,
  • find a grand jury indictment, 
  • try to reinstate the original complaint.

If the judge rules against you  ,the evidence will remain justifiable. At that point, you and your attorney will decide together whether you should

  • plead guilty or nolo contendere to the charged crime,
  • attempt to “strike a deal” with the prosecution so that you can plead guilty or nolo to a reduced charge, or proceed to trial.

If the judge does not grant your motion to suppress, you may then file an appeal within 30 days of the ruling.

Exceptions:  Proceedings where suppressed evidence is still admissible 

 if you win on a motion to suppress evidence, that evidence may still be admissible at

  • a parole revocation hearing,
  • a grand jury hearing, or
  • a civil deportation hearings for immigrants facing deportation because of criminal convictions.

3. Are there other pretrial motions to put forward?

A Penal Code 1538.5 motion to suppress is only one of several kinds of motions your California criminal defense attorney may choose to file as part of the pretrial process. 

The Penal Code 995 PC motion to set aside the information

A Penal Code 995 PC “motion to set aside the information” is essentially a plea for the judge to dismiss one or more of the charges against you. Its reasonable to file this motion if you and your attorney believe that either:

  • Your rights were breached during your preliminary hearing, or
  • There is no probable reason to charge you with the crime.

The Pitchess motions

A California Pitchess motion is a plea for information contained in a law enforcement officer’s personnel file.   Pitchess motions are only valid if you can show “good cause” to believe that the officer may be guilty of misconduct, and that the misconduct is relevant to the defense in your case.  Recently, California Governor Gavin Newsom approved Assembly Bill 1600 (AB 1600) which shortens notice requirements and speeds up the timeframe for responding to Pichess Motions in criminal proceedings. 

If you or a loved one is in need of assistance with Penal Code 1538.5 PC motion to suppress evidence and you are looking to hire an attorney for representation, we invite you to contact us at Spodek Law Group. We can give  free consultation in office or by phone. 

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