California "Motion to Suppress Evidence" Hearings
Penal Code 1538.5 PC
Police frequently search people and places, and seize property, (a) without probable cause, (b) without a warrant, or (c) with an improperly-issued warrant.
If this happened to you, your criminal defense lawyer should file a Penal Code 1538.5 "Motion to Suppress." If the motion is granted, this could lead to the evidence--and the whole case--getting thrown out of court.
As a law firm made up of former cops and former prosecutors, we're very adept at identifying improper police conduct...and then fighting back through hard-hitting suppression motions.
Below, our California criminal defense attorneys1 address the following:
1. The Life-Cycle of a Suppression Motion
1.1. Your story
1.2. Your lawyer's investigation
1.3. The anatomy of a legal "motion"
1.4. The prosecution case
1.5. The suppression hearing
1.6 The ruling
2. Overview of a 1538.5 Motion to Suppress Evidence
2.1. Evidentiary exclusions
2.2. Specific grounds for raising a 1538.5 motion
2.3. Presumptions about reasonableness
2.4. "Secondary" and "derivative" evidence
3. Legal Definition of "Reasonable Expectation of Privacy"
4. Procedural Aspects
4.1. Misdemeanor charges
4.2. Felony charges
4.3. Options for the prosecution
4.4. Proceedings where suppressed
evidence is admissible
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California's Arraignment Process; Pretrial Proceedings; Preliminary Hearings; California Jury Trials; California Search Warrants; Police Misconduct; California Pitchess Motions; Penal Code 995 Motion to Set Aside the Information; and California Sentencing Hearings.
1. The Life-Cycle of a Suppression Motion
Before we can explain the legalities of a Penal Code 1538.5 PC suppression motions, let's take you through some of the basics. In the section below, we will describe how a motion to suppress comes to be, from the initial attorney / client consultation to hearing and ruling in court.
1.1. Your story
Let's say that you believe you were the victim of racial profiling. You were driving late at night in an affluent neighborhood…where you live…obeying all traffic laws, and yet the police nonetheless pulled you over. The cops ordered you out of the car and conducted a "pat down" search, where they discovered some cocaine in your pocket. You were booked, arrested, and are now facing California Health and Safety Code 11350 HS drug possession charges.2
Rightfully so, you're furious. You want help fighting your possession charge so you seek a criminal defense attorney's advice. You tell the attorney your story and he/she has a solution…file a 1538.5 PC motion to suppress evidence.
If your motion is successful, the cocaine will be excluded from evidence which means that the prosecution no longer has a case against you.
And while all cases and motions may not be this straightforward, a successful motion will typically at least persuade the prosecutor to reduce, if not dismiss, your charge(s).
1.2. Your lawyer's investigation
Before an attorney will file a motion to exclude (that is, "suppress" evidence), he/she will need to conduct an investigation.
First, he/she will review all of the prosecution's evidence. This evidence…which is generally comprised of the police report, the prosecutor's "complaint" against you, witness statements, your criminal history, etc….is exchanged during a process known as discovery. The lawyer will look into the officer's account and any corroborating evidence that he/she presented.
Second, the attorney will conduct an independent investigation. He/she may
- ask you to once again give your version of the incident (so that he/she can ask you about any discrepancies in the officer's account),
- possibly ask the court to provide the names of any other people who complained that…on prior occasions…the officer engaged in wrongful conduct (a request formally made through what is known as a California Pitchess motion), and/or
- research the relevant case law to determine if your situation is appropriate for a suppression motion.
If…after investigating all of the facts and researching the applicable laws…the attorney determines that the police
- illegally stopped and/or searched you (or your property), or
- illegally seized evidence,
he/she will file the motion on your behalf.
1.3. The anatomy of a legal "motion"
A "motion" is a written request that you file with the court, asking the judge to take a specific, requested action. A motion contains
- persuasive arguments that explain why the requested relief is appropriate in your case, as well as
- legal references (also known as legal authority) which support your arguments so that the judge knows that he/she can legally grant the requested relief in line with the circumstances of your case and consistent with past case law and/or your rights under the California and U.S. Constitutions.
With respect to a Penal Code 1538.5 PC motion to suppress, the relief that your attorney is requesting is suppression (or exclusion) of the controversial evidence. Simply put, the Fourth Amendment to the United States Constitution protects society from unreasonable searches and seizures (discussed more fully below in Section 3. The Legal Definition of "Reasonable Expectation of Privacy").
When the police violate that Constitutional right, their misconduct is punished, and you reap the benefits…that is, by having the illegal evidence excluded from your case.
Once your attorney writes the motion, he/she "files" the motion with the court (that is, he/she submits it for review) and also provides a copy for the prosecution.
1.4. The prosecution case
Once the prosecution receives the motion, it has the opportunity to respond. Most likely, the prosecutor will oppose your motion and argue that the police did not illegally discover or obtain the controversial evidence.
Before responding, the prosecutor will also
- examine the prosecution's evidence (the police report, any witness statements, etc.),
- interview the officer as to his/her take on the situation, and
- research the law, paying particular attention to the legal authority that your attorney used in his/her motion.
Once these steps are complete, the prosecutor will file his/her written "objection" or "response" to the motion with the court and provide a copy to your criminal defense attorney as well. After that, both sides proceed to a scheduled hearing.
1.5. The suppression hearing
The suppression hearing is where both sides have the opportunity to argue orally their positions to the court. And even though this hearing is bound by the California rules of Evidence, it is nonetheless more "relaxed" than a jury trial.
In fact, one of the major differences between this and a jury trial is that certain types of "hearsay"…that is, out-of-court statements that are offered in court…is admissible to help the judge determine whether the officer acted legally or illegally.
At the hearing, the defense attorney may have you testify…something that you would discuss and prepare for ahead of time…as well as any other witnesses that may have been with you at the time. And the prosecutor will have the opportunity to cross-examine (that is, re-question) everyone who testifies on your behalf.
Similarly, the prosecutor will most likely have the officer testify, as well as any other witnesses that he/she feels will help bolster the state's case. And, of course, your attorney will also have the opportunity to cross-examine any prosecution witnesses.
After all the testimony has been given, the attorneys will have a final turn to ask the judge for the desired ruling and to try to persuade him/her to rule in their favor.
1.6 The ruling
Once the judge has heard all of the evidence, he/she must decide whether to (1) exclude the controversial evidence, or (2) permit its admissibility. If the judge rules in your favor, the evidence is not admissible and…depending on the strengths of the rest of the prosecution's case…this may result in the prosecutor dismissing your entire case or in a generous plea bargain to a reduced charge.
However, if the judge rules against you, the evidence will remain admissible. At that point, you and your attorney will discuss whether you should
- plead guilty or nolo contendere (more commonly referred to as "no contest") to the charged offense(s),
- try to "strike a deal" with the prosecution so that you can plead guilty or nolo contendere ("no contest") to a reduced charge, or
- proceed to trial.
2. Overview of a 1538.5 Motion to Suppress Evidence
Simply put, California Penal Code section 1538.5 PC authorizes a defendant to move for
- the suppression (that is, exclusion) of any evidence that is the product of an illegal search and seizure, and/or
- for a return of any property that was illegally seized.3
To prevail on this motion, you must only prove that the search / seizure was illegal by a preponderance of the evidence.4 A "preponderance of the evidence" means that it is more likely than not that the search / seizure was unreasonable.
2.1. Evidentiary exclusions
This motion does not apply to coerced confessions or illegal identifications unless they are either (1) the result of an illegal search and/or seizure, or (2) are intertwined with an illegal search / seizure.5
Example: If, for example, you claim that you are the victim of a coerced confession…a confession which led to the seizure of evidence…you would present that evidence during a 1538.5 hearing.
If you prove that your confession was coerced, any physical evidence that was obtained as a result will be suppressed.6 However, the motion may not be used to suppress the confession itself (that would be addressed in a separate motion). 7
And conversely, any observations, statements, or testimony that is obtained in violation of an illegal search/seizure, unlawful arrest, or unlawful detention is also subject to suppression.8
2.2. Specific grounds for raising a 1538.5 motion
Specifically, 1538.5 motions may be based on the fact that
- the search or seizure without a warrant was unreasonable, or
- the search or seizure with a warrant was unreasonable because
a) the warrant was insufficient on its face,
b) the property or evidence obtained was not listed in the warrant (that is, the evidence was "beyond the scope" of the warrant),
c) there was no probable cause for the issuance of the warrant,
d) the method of execution of the warrant violated Constitutional standards (for example, the officers were guilty of police misconduct), and/or
e) there was any other violation of Constitutional rights.9
2.3. Presumptions about reasonableness
Searches without a warrant are…for the most part…presumed to be unreasonable. When there is no warrant, the prosecution must prove that the intrusion was lawful and justified.10
Similarly, if the seized evidence was not listed in the warrant…or if the search exceeded the scope of the warrant…the prosecutor must prove that the officers acted reasonably and lawfully under the circumstances.11
However, searches with a warrant are presumed to be lawful and reasonable. The burden is then on the defense to prove that the warrant was invalid or unlawfully executed. Ways to prove these claims include (but are not limited to):
- allegations that the officer who applied for the California search warrant intentionally misled the judge about the facts justifying the warrant (which could additionally justify the filing of police misconduct charges),
- the warrant lacked specificity with respect to the place to be searched or the things to be seized such that the officers could not reasonably have presumed that it was valid, or that
- the judge who issued the warrant abandoned his/her role of being neutral and disinterested.12
2.4. "Secondary" and "derivative" evidence
Along these same lines, if the defense alleges that there is some secondary or derivative evidence that was discovered as an indirect result of the illegal search or seizure, that, too, is subject to the motion to suppress.13
If the defense makes this claim, it is up to the prosecution to prove that the "taint" has dissipated by proving one of three theories:
- that the possibly tainted evidence is so far removed from the illegal search / seizure that is doesn't make sense to enforce the exclusionary rule,14
- that the evidence was found pursuant to an independent source,15 or
- that there is a "reasonably strong probability" that the evidence would have ultimately been discovered regardless of the illegal search.16
3. Legal Definition of "Reasonable Expectation of Privacy"
Before the court will even entertain your 1538.5 motion to suppress evidence, you must prove that you had a reasonable expectation of privacy (sometimes referred to as "standing") in the premises searched or the items seized.17
As Santa Ana criminal defense attorney Zachary McCready18 explains, "This is an objective standard. Whether or not you personally believe you had a ‘reasonable expectation of privacy' is irrelevant. The issue is whether you had an objectively reasonable expectation of privacy…that is, one that society would be ready to accept as reasonable."19
It therefore follows that if you do not have a reasonable expectation of privacy in the place searched or in the items seized, the court will not suppress the evidence. If you do have a reasonable expectation of privacy…and the police unlawfully invade or interfere with that right…the court will suppress the evidence.
The following are some examples of cases where California courts have held that a reasonable expectation of privacy did not exist:
- There is no reasonable expectation of privacy in abandoned property (a wastebasket in a vacated hotel room, an abandoned rental car, an abandoned cell phone, etc.).20
- There is no reasonable expectation of privacy in a vehicle which you have stolen (or, for that matter, in a place where you are not entitled to be).21
- A passenger in a car who does not have either a property or possessory interest in the car does not have a reasonable expectation of privacy in the car.22
And some cases where courts have held that the person does have a reasonable expectation of privacy:
- People do have a reasonable expectation of privacy in their homes (when cops arrived at defendant's house to investigate an anonymous tip that there was a loud party, they heard nothing. Instead of leaving, they illegally entered his property and illegally looked through a side window where they watched him package cocaine).
- People do have a reasonable expectation of privacy in a tent or tarp that is designed to shield the inhabitant from public view.23
- Students in public schools do have a reasonable expectation of privacy in their personal belongings that they bring to school.24
Keep in mind that just because you have a reasonable expectation of privacy does not mean that you have an absolute right to do / have anything you want within those boundaries. It simply means that the police cannot violate that expectation without following proper procedures.
4. Procedural Aspects
Penal Code 1538.5 "motions to suppress evidence" are subject to the rules of the California Evidence Code.25 The exception is that certain types of hearsay (that is, out-of-court statements that are offered for their truth) may be admissible on the issue of probable cause.
"Probable cause" is "a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime."26 This comes into play in helping to determine whether there was enough probable cause for the police to justify the intrusion that you claim resulted in an illegal search and/or seizure.27
Because it is the defense who files this motion, the defense is responsible for setting its parameters. If, for example, the motion is being raised on the basis of there being no warrant, the defense presents that evidence…that is, the fact that there was no warrant…a fact to which the prosecution would typically stipulate. The burden then shifts to the prosecution to justify the intrusion.28
4.1. Misdemeanor charges
If you face only misdemeanor charges, your criminal defense lawyer may file a 1538.5 motion to suppress evidence as early as your California arraignment. As part of the pretrial process, this motion must be heard prior to your jury trial.29
If the losing party chooses to appeal, it must do so within 30 days of the ruling.30
4.2. Felony charges
If you face felony charges…or misdemeanor and felony charges filed in the same case…your lawyer has two options:
- your lawyer may argue this motion at your preliminary hearing (where he/she will be limited to evidence that the prosecutor intends to introduce at that hearing), or
- your lawyer may choose to wait and simply litigate the issue during a special suppression motion hearing after the preliminary hearing, and during the pretrial conference phase (which means that he/she isn't bound by the prosecutor's agenda).31
Assuming your motion is heard during the preliminary hearing, if your motion is denied in whole or in part, you are entitled to a "special hearing" on the issue prior to trial.
At this hearing, a new judge will make an independent determination about the legal issues presented. And although the judge is bound by any "factual" determinations that the prior judge made, this rule does not apply if those findings are affected by new evidence that is just being presented.32
During this "special" hearing, you are limited to arguing evidence that is included in the preliminary hearing transcript and to evidence that has been newly discovered. If your motion is denied, you may appeal within 30 days.33
Alternatively, you can challenge the judge's ruling by filing a California Penal Code 995 motion to set aside the information.
Finally, in the event that your attorney had no reasonable basis to know that there was an issue concerning illegally obtained evidence until the time of your trial, your attorney has the right to file a 1538.5 motion during the course of your jury trial.34
4.3. Options for the prosecution
If…during the preliminary hearing…the judge finds that after excluding the illegally obtained evidence there is not enough evidence to "hold the defendant to answer", the prosecutor has several options.
The first is to refile the charges. The second is to seek a grand jury indictment. The third is to move to reinstate the complaint.
However, if the defense's felony 1538.5 motion to suppress evidence is granted twice, the prosecutor may not refile unless there is newly discovered evidence that was not reasonably available at the time of the motion.35
4.4. Proceedings where suppressed evidence is admissible
The exclusionary rule does not apply to all proceedings but rather only those "where its deterrence benefits outweigh its ‘substantial social costs'".36 Illegally obtained evidence may therefore be admissible during
- parole revocation hearings,
- California sentencing hearings,
- grand jury proceedings, and
- civil deportation hearings.37
Some final thoughts…
Even if your attorney does not win the motion, any testimony that is elicited during the hearing can be used during your trial to impeach the testifying officer's credibility. This is a common reason to file the motion even if the defense doesn't necessarily believe that he/she will prevail on it.
When to file and argue a 1538.5 motion to suppress evidence will vary case-by-case. It is a tactical decision that your California criminal defense attorney will discuss with you when the time arises.
Call us for help…
For questions about California 1538.5 PC "motions to suppress evidence", or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to law and motion in Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.38
To learn about Nevada motions to suppress, go to our page on Nevada motions to suppress.
Legal References:
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions.
2California Health and Safety Code 11350 HS drug possession. ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")
3Penal Code 1538.5 PC – Motion to return property or suppress evidence. ("(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.")
4People v. James (1977) 19 Cal.3d 99, 106. ("Defendant first contends the evidence of the stolen television set in his house was obtained by an illegal search and seizure. Our guiding principles are well settled. (1) Inasmuch as the search herein was conducted without a warrant, the burden was on the People to establish justification under a recognized exception to the warrant requirement. ( People v. Rios (1976) 16 Cal.3d 351, 355-356 [128 Cal.Rptr. 5, 546 P.2d 293].) (2) The People relied on consent, which constitutes such an exception. ( People v. Michael (1955) 45 Cal.2d 751, 753 [290 P.2d 852].) In that event, however, the People had the additional burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. ( People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].)FN4 The voluntariness of the consent is in every case "a question of fact to be determined in the light of all the circumstances." ( People v. Michael, supra, 45 Cal.2d at p. 753; accord, People v. Reyes (1974) 12 Cal.3d 486, 501 [116 Cal.Rptr. 217, 526 P.2d 225].) FN4 The People may discharge the foregoing burdens [during a California 1538.5 hearing] by a preponderance of the evidence.")
5People v. Mattson (1990) 50 Cal.3d 826, 850-851. ("Section 1538.5 is properly used only to exclude evidence obtained in violation of a defendant's state and/or federal (Fourth Amendment) right to be free of unreasonable search and seizure.FN11 Although the procedure may be used to exclude confessions that are the product of an unlawful search and seizure, and the question of whether a confession was unlawfully obtained may be decided by the court in order to rule on the admissibility of physical evidence that is discovered as a result of the confession, section 1538.5 may not be used to suppress admissions and confessions on grounds that they are the product of Fifth Amendment and/or Sixth Amendment violations.")
6People v. Vasila (1995) 38 Cal.App.4th 865, 873. ("In order to introduce a defendant's statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. ( People v. Markham (1989) 49 Cal.3d 63, 71 [260 Cal.Rptr. 273, 775 P.2d 1042].) If a statement is found to be involuntary, [California Penal Code 1538.5 PC holds] the statement and other evidence derived from it are inadmissible for any purpose.")
7People v. Mattson (1990) 50 Cal.3d 826,851. ("Here defendant sought to exclude his confessions and admissions solely on the ground that they were obtained in violation of his right against self-incrimination and his right to counsel. He did not assert that they were the product of an unlawful search and seizure. Although his self-incrimination and counsel claims had to be decided in order to rule on the part of his motion that sought to exclude evidence obtained in the search of his car, only that latter aspect of the motion was properly brought pursuant to section 1538.5. The trial court was clearly aware of the distinct bases for the attempt to exclude the confessions, however, having stated that the admissibility of the confessions should be litigated in a motion pursuant to Evidence Code section 402.")
8People v. Massey (1976) 59 Cal.App.3d 777, 782. ("While no case squarely answers the question here before us, we conclude that the use of a 1538.5 motion was proper in the case at bench. Where the evidence sought to be suppressed is physical evidence, seized or seen, the exclusionary rules serve to protect rights granted by the Fourth Amendment and its state counterpart. In order to protect those rights, Keithley, supra, 13 Cal.3d, and Mahle, supra, 3 Cal.App.3d, invoked the Miranda rule, a rule designed to protect rights granted by the Fifth Amendment and its California counterpart. An illegal arrest is a violation of the same Fourth Amendment rights as is a search or seizure of physical property. The rules excluding confessions exist for the same purpose as does Miranda - namely, to protect Fifth Amendment rights. We can see no reason why, if a violation of a Fifth Amendment right may be used to show a violation of Fourth Amendment rights, the converse should not be true. Since there was here a "seizure" and an "intangible" thing, we conclude that a Fourth Amendment violation of defendant's rights should permit him to contest the admissibility of a confession obtained as a result of that violation, in a proceeding falling within the literal language of section 1538.5.")
9See California Penal Code 1538.5 PC -- Motion to return property or suppress evidence, endnote 3, above.
10People v. Williams (1999) 20 Cal.4th 119, 127. ("Here, of course, the search was without a warrant. Defendant notes that the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure ( Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23] ( Badillo); see also People v. Williams (1988) 45 Cal.3d 1268, 1300 [248 Cal.Rptr. 834, 756 P.2d 221]; Guided v. Superior Court (1973) 10 Cal.3d 1, 15, fn. 15 [109 Cal.Rptr. 684, 513 P.2d 908]), and therefore a warrantless search is presumptively unreasonable…[and at 130]… In sum, we conclude that under section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. In the interest of efficiency, however, defendants need not guess what justifications the prosecution will argue. Instead, they can wait for the prosecution to present a justification.")
11People v. Murray (1978) 77 Cal.App.3d 305, 308. (""The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. [Citation.] The Penal Code demands reasonable particularity ( Pen. Code, § 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized. [Citations.]" It has been stated that nothing should be left to the discretion of the officer. ( Marron v. United States (1927) 275 U.S. 192, 196 [72 L.Ed. 231, 237, 48 S.Ct. 74].)…[and at 309-310]… Respondent relies upon the plain view doctrine to uphold the seizure as enunciated in Skelton v. Superior Court (1969) 1 Cal.3d 144, 157 [81 Cal.Rptr. 613, 460 P.2d 485], wherein the Supreme Court instructed: "When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers' efforts." Most commonly, the plain view doctrine is applied to items which are inherently recognizable as contraband, such as drugs, drug paraphernalia or illegal weapons….[and at 310-311]… While a search and seizure conducted pursuant to a warrant is presumed to be legal and the burden is on the defendant to show the illegality ( Theodor v. Superior Court, supra., 8 Cal.3d 77, 101), the seizure before us was not pursuant to a warrant but was by virtue of the plain view doctrine. The burden therefore in this regard is upon the prosecutor (see Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23]) to show the applicability of the plain view doctrine. The prosecutor has failed to carry that burden. The two television sets upon which counts one and two were predicated were not inherently identifiable as contraband nor were they identified at the scene as having obliterated serial numbers or other distinctive markings to set them apart from any other Sony or RCA sets of the same make and model. It follows therefore that the seizure was not justified under the plain view doctrine and evidence thereof should have been suppressed [pursuant to defense counsel's 1538.5 motion to suppress evidence].")
12U.S. v. Leon (1984) 468 U.S. 897, 923.
13Wong Sun v. U.S. (1963) 371 U.S. 471, 484-485. ("The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule: ‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' 251 U.S. at 392, 40 S.Ct. at 183.")
14U. S. v. Ceccolini (1978) 435 U.S. 268.
15See Wong Sun v. U.S., endnote 13, above.
16People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 680-681. ("It is urged by Tunch that without the invalid police search the evidence of his automobile would not have been inevitably discovered. It is true that the term does ordinarily have the connotation of "certainty," but so considered it appears to be a misnomer. Nowhere in the many definitive authorities does it appear that the police with "certainty" would have obtained the evidence "from an independent source." Instead the rule's requirement is that it would have been discovered "in the normal course of a lawfully conducted investigation" ( Lockridge v. Superior Court, supra., 3 Cal.3d 166, 170; and see People v. Chapman, supra., 261 Cal.App.2d 149, 167; Santiago v. State, supra., 444 S.W.2d 758, 761; People v. Fitzpatrick, supra., 32 N.Y.2d 499, 506), or "would have been ultimately revealed by usual and commonplace police investigative procedures" ( People v. Ramsey, supra., 272 Cal.App.2d 302, 313; and see People v. Thomsen, supra., 239 Cal.App.2d 84, 91), or that "there are independently sufficient 'leads"' ( United States v. Resnick, supra., 483 F.2d 354, 357), or there was a "likelihood that it would have subsequently been discovered through other police efforts" ( Gissendanner v. Wainwright, supra., 482 F.2d 1293, 1297), or that the police would reasonably be expected to obtain the evidence "by an independent investigation" ( People v. Tucker, supra., 172 N.W.2d 712, 717). The test is not one of certainty, but rather of a reasonably strong probability.")
17People v. Carter (2005) 36 Cal.4th 1114, 1141. ("" ‘An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded space or the seized thing. ( United States v. Salvucci (1980) 448 U.S. 83, 91-92 [100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628].) The legitimate expectation of privacy must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge [known in California as a Penal Code 1538.5 motion to suppress evidence].' ( People v. Hernandez (1988) 199 Cal.App.3d 1182, 1189, 245 Cal.Rptr. 513, italics in original.)" ( People v. McPeters, supra, 2 Cal.4th 1148, 1171, 9 Cal.Rptr.2d 834, 832 P.2d 146.) The burden is on the defendant to establish that a legitimate expectation of privacy ( Rawlings v. Kentucky (1980) 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633) was violated by government conduct.")
18Santa Ana criminal defense attorney Zachary McCready defends clients throughout Orange County, including Fullerton, Anaheim, Newport Beach, Tustin, Irvine and Westminster.
19U.S. v. Jacobsen (1984) 466 U.S. 109, 113. ("The first clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...." This text protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.FN4 A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.FN5")
20People v. Parson (2008) 44 Cal.4th 332, 345. ("It has long been settled, however, that a warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property. ( Abel v. United States (1960) 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 [wastebasket contents in vacated hotel room]; People v. Smith (1966) 63 Cal.2d 779, 800-801, 48 Cal.Rptr. 382, 409 P.2d 222 [abandoned rental car]; People v. Daggs (2005) 133 Cal.App.4th 361, 365, 34 Cal.Rptr.3d 649 [abandoned cell phone].) Thus, "when a day-to-day room guest of a hotel or motel departs without any intention of occupying the room any longer and without making any arrangement for payment of his bill, an inference arises that he has abandoned his tenancy.... This is so even though the guest leaves some of his personal belongings behind."")
21See People v. Carter, endnote 17, above. ("In the present case, defendant, as the driver of a stolen vehicle, lacked a legitimate expectation of privacy to contest the search of that vehicle. (See Rakas v. Illinois (1978) 439 U.S. 128, 141, fn. 9, 99 S.Ct. 421, 58 L.Ed.2d 387 [" ‘No interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' "]; accord People v. Melnyk (1992) 4 Cal.App.4th 1532, 1533, 6 Cal.Rptr.2d 570.) To accept defendant's assertion that he had a legitimate expectation of privacy while driving a stolen vehicle would be to overlook the word "unreasonable" in the Fourth Amendment's proscription against "unreasonable searches and seizures."")
22People v. Valdez (2004) 32 Cal.4th 73, 122. ([With respect to a California Penal Code 1538.5 motion to suppress evidence,] "A passenger in a vehicle may not challenge the seizure of evidence from the vehicle if the passenger asserts "neither a property nor a possessory interest in the automobile nor an interest in the property seized." ( Rakas v. Illinois (1978) 439 U.S. 128, 148, 99 S.Ct. 421, 58 L.Ed.2d 387.) As a passenger, defendant lacked a reasonable expectation of privacy in the area under the driver's side seat and thus cannot challenge the seizure of the gun. ( Id. at pp. 148-149, 99 S.Ct. 421.) The trial court therefore did not err in denying the motion to suppress.")
23People v. Hughston (2008) 168 Cal.App.4th 1062, 1070-1071. ("As the Colorado Supreme Court reasoned in Schafer, supra, 946 P.2d at p. 944: "Whether pitched on vacant open land or in a crowded campground, a tent screens the inhabitant therein from public view. Though it cannot be secured by a deadbolt and can be entered by those who respect not others, the thin walls of a tent nonetheless are notice of its occupant's claim to privacy unless consent to enter be asked and given. One should be free to depart the campsite for the day's adventure without fear of this expectation of privacy being violated. Whether of short or longer term duration, one's occupation of a tent is entitled to equivalent protection from unreasonable government intrusion as that afforded to homes or hotel rooms. [Citations.]"")
24In re Lisa G. (2004) 125 Cal.App.4th 801, 808. ("On the other hand, students in public schools have a legitimate expectation of privacy in the personal effects they bring to school. ( In re Cody S. (2004) 121 Cal.App.4th 86, 91, 16 Cal.Rptr.3d 653.) They may "carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds." ( New Jersey v. T.L.O., supra, 469 U.S. at p. 339, 105 S.Ct. 733.) We conclude Ms. Craig's initial limited search of Lisa's purse for identification was unreasonable under the Fourth Amendment.")
25Jauregi v. Superior Court (1999) 72 Cal.App.4th 931, 939. ("Evidence Code section 300, not mentioned by either party, reads in relevant part that "Except as otherwise provided by statute, this code applies in every action before ... a ... superior court, ...." FN13 If this command were not clear enough, the Law Revision Commission Comment to section 300 resolves any conceivable ambiguity in the statutory language; the Commission states that section 300 "makes the Evidence Code applicable to all proceedings conducted by California courts except those court proceedings to which it is made inapplicable by statute...." (Cal. Law Revision Com. com., 29B West's Ann. Evid. Code (1995 ed.) foll. § 300, p. 46.) The case law is equally explicit: "Evidence Code section 300 makes it clear that, except as otherwise provided by statute, the Evidence Code applies to every evidentiary hearing in the state courts....[which includes a California Penal Code 1538.5 hearing]" ( Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927 [85 Cal.Rptr. 493]; see also Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074 [2 Cal.Rptr.2d 160, 820 P.2d 262].)")
26People v. Ingle (1960) 53 Cal.2d 407, 412.
27People v. Magana (1979) 95 Cal.App.3d 453, 462-463.
28People v. Williams (1999) 20 Cal.4th 119, 129-130. ("Therefore, defendants must do more than merely assert that the search or seizure was without a warrant. The search or seizure must also be unreasonable; that is, it must not fall within any exception to the warrant requirement. To address properly both concepts included in section 1538.5, defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances…Nevertheless, we can discern no reason for requiring defendants to guess what justification the prosecution will offer at the risk of forfeiting the right to challenge that justification. Under such a rule, defendants would routinely safeguard their rights by enumerating, and then refuting, every possible justification for a warrantless search or seizure. Motions to suppress would be filled with pages of unnecessary argument about justifications that the prosecution is readily willing to concede are inapplicable. Because law enforcement personnel, not the defendant, made the decision to proceed without a warrant, they, not the defendant, are in the best position to know what justification, if any, they had for doing so. Therefore, when the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion…Moreover, once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. (See, e.g., People v. Coleman (1991) 229 Cal.App.3d 321, 324-325 [280 Cal.Rptr. 54] ( Coleman).) Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the search or seizure without a warrant was "unreasonable." This specificity requirement does not place the burden of proof on defendants. (Cf. People v. Sedillo (1982) 135 Cal.App.3d 616, 624 [185 Cal.Rptr. 475] ( Sedillo).) As noted, the burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances.")
29California Penal Code 1538.5 PC -- Motion to suppress evidence. ("(g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made before trial and heard prior to trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanor filed together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable. (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.")
30California Rules of Court Rule 8.853 -- Time to appeal. ("(a) Normal time. A notice of appeal must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.")
31California Penal Code 1538.5 PC -- Motion to suppress evidence. ("(f)(1) If the property or evidence relates to a felony offense initiated by a complaint, the motion shall be made only upon filing of an information, except that the defendant may make the motion at the preliminary hearing, but the motion shall be restricted to evidence sought to be introduced by the people at the preliminary hearing…(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. Any written response by the people to the motion shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing, unless the defendant is willing to waive a portion of this time. If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.")
32People v. Memro (1995) 11 Cal.4th 786, 846. ("When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial court's factual findings, upholding them if they are supported by substantial evidence, but we then independently review the court's determination that the search did not violate the Fourth Amendment. ( People v. Loewen (1983) 35 Cal.3d 117, 123 [196 Cal.Rptr. 846, 672 P.2d 436].)")
33See California Penal Code 1538.5 PC -- Motion to suppress evidence, subdivision "i", endnote 31, above.
34People v. Minjares (1979) 24 Cal.3d 410.
35California Penal Code 1538.5 PC -- Motion to suppress evidence. ("(p) If a defendant's motion to return property or suppress evidence in a felony matter has been granted twice, the people may not file a new complaint or seek an indictment in order to relitigate the motion or relitigate the matter de novo at a special hearing as otherwise provided by subdivision (j), unless the people discover additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.")
36Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357, 363.
37See same. See also 364. ("We therefore hold that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights.")
See also People v. Brewster (1986) 184 Cal.App.3d 921, summary. ("The court also held that it was not error for the sentencing judge to rely on evidence of an illegally-seized gun in imposing sentence, where the gun, although suppressed in an earlier unrelated murder prosecution against defendant, would clearly have been admissible under federal sentencing law, made binding on the state by enactment of Cal. Const., art. I, § 28, subd. (d).")
38Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.
