Penal Code 1538.5

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Penal Code 1538.5 PC Motion to Suppress

California Penal Code 1538.5 PC “Motion to Suppress” is another widely-used motion during the pre-trial process. This motion arises out of an illegal search and seizure. It can be filed for a number of reasons, including:

•The belief that evidence was acquired pursuant to an illegal search and/or seizure

•A desire to have a pre-trial opportunity to question law enforcement officers to either 1) reveal weakness in the prosecutor's case, or

2) attempt to elicit testimony that can be used to impeach the witness during trial.

If this motion is granted, the wrongfully-obtained evidence will be “suppressed”, or excluded from evidence. Prevailing on this motion is a good sign that the case against you will be weakened or dismissed.

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.”

This is a violation of the Fourth Amendment.

This motion must be in writing and must also be accompanied by a memorandum of points and authorities which lists the specific items of property or evidence sought to be suppressed and must also include the factual basis and legal authorities in support of the motion. Penal Code §1538.5(a)(2)The law in California states that the burden of proving that a search without a warrant was justified lies with the prosecution. However, the defendant has the initial burden of proving that the search or seizure without a warrant was unreasonable under the circumstances. The California Supreme Court has also ruled that the prosecution must meet the burden of proof that a defendant's demonstration of consent was the product of free will and not a submission to an express or implied authority. Note: Consent is not voluntary if it reacts to coercion or duress. If the defendant was not aware of the grounds for the motion until the case is already in trial, this motion can then be heard during trial. According to Penal Code §1538.5(f)(1) and §1538.5(f)(2), in felony matters, the motion may be made either at the preliminary hearing or later, upon the filing of the information.

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