How to suppress evidence in California from an illegal search and seizure

How to suppress evidence in California obtained as a result of an illegal search and seizure is the topic of this blog post.   The proper procedure for suppressing evidence obtained from a search and seizure conducted without a valid warrant is specified in California Penal Code section 1538.5. This motion to suppress evidence may be used to challenge searches that were conducted either with or without a search warrant although this blog post will discuss only searches conducted without a valid search warrant.  

The provisions of California Penal Code section 1538.5(a)(1)(A) state 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 result in the prosecution either dismissing the charges or offering a plea bargain with a much lighter sentence than what a defendant was previously facing.  This is due to the fact that if the evidence is suppressed the prosecutor's case against the moving defendant may be so lacking in evidence that they will have no choice but to dismiss or offer 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).

It is settled law in California that the burden of proving that a warrantless search was justified lies with the prosecution.  The defendant does however have the initial burden of showing that a search or seizure was without a warrant and that it was unreasonable under the circumstances.  A defendant can meet this burden by showing that the police performed a warrantless seizure.

In misdemeanor cases, the motion to suppress must be made and heard before trial. See Penal Code § 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. See 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 §§ 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 warrantless search in California sold by the author can use the link shown below.

http://www.scribd.com/doc/216964612/Sample-Motion-to-Suppress-Evidence-for-California-under-Penal-Code-section-1538-5

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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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.