• Archives

  • Blog Stats

    • 668,323 hits
  • Categories

Motion to suppress evidence in California

A motion to suppress evidence in California under Penal Code section 1538.5 is the topic of this blog post. Section 1538.5 covers only the suppression of evidence obtained as a result of a purportedly illegal search or seizure, in other words a violation of the Fourth Amendment.   A motion to suppress evidence may be used to challenge searches that were conducted either with or without a search warrant.

Penal Code § 1538.5(a)(1)(A) states in pertinent part that, “On motion, the court shall suppress evidence the People obtained as a result of a search or seizure on the grounds that the search or seizure without a warrant was unreasonable.”

A motion to suppress evidence can be a powerful tool as the prosecution may not have a solid case against a defendant if evidence is excluded. If the motion to suppress evidence is granted, the prosecutor’s case against the moving defendant may be so lacking in evidence that it essentially falls apart. That may prompt the prosection to either dismiss the charges, or negotiate a favorable plea bargain.

The motion to suppress evidence must be in writing and must also be accompanied by a memorandum of points and authorities that lists the specific items of property or evidence sought to be suppressed and the factual basis and legal authorities in support of the motion. See Penal Code §1538.5(a)(2).

The law in California is well settled that the burden of proving that a search conducted without a warrant was justified lies with the prosecution. However the moving defendant has the initial burden of showing that a search or seizure was without a warrant and that it was unreasonable under the circumstances. The defendant can meet this burden by showing that the police performed a warrantless seizure.

The California Supreme Court has ruled that the the prosecution must also meet the burden of proving that a defendant’s manifestation of consent was the product of their free will and not a mere submission to an express or implied assertion of authority. Consent is not voluntary if it merely reacts to coercion or duress.

In misdemeanor cases, the motion to suppress must be made and heard before trial. See Penal Code § Section 1538.5(g). However, the defense is entitled to a continuance of up to 30 days in misdemeanor cases to prepare for the hearing on the motion. See Penal Code § 1538.5(l).

If the defendant was not aware of the grounds for the motion until the case is already in trial, the motion may be made and heard during trial. Penal Code § 1538.5(h).

In felony matters, the motion may be made either at the preliminary hearing or later, upon filing of the information. See Penal Code §§ Section 1538.5(f)(1) and 1538.5(f)(2) for more details.

Attorneys or parties in California who would like to view a portion of a sample motion to suppress evidence from a search conducted without a warrant in California sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Advertisements

What is your opinion?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: