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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF _______

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,
vs.
_____________________,
Defendant.

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Case: ________
MOTION TO SUPRESS EVIDENCE,
(P.C. 1538.5)
Date: ________
Time: ________
Place: ________

TO THE DISTRICT ATTORNEY OF

COUNTY AND/OR

[HIS OR HER] REPRESENTATIVE:

PLEASE TAKE NOTICE that on __________ , at the hour of __________ or as soon
thereafter as counsel may be heard in the courtroom of the above-entitled court, the defendant
will move for an order suppressing the following evidence:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

This motion will be made on the ground that the search and seizure was unreasonable in
violation of the Fourth and Fourteenth Amendments to the United States Constitution and
violated the defendants reasonable expectation of privacy. More specifically,
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
This motion will be based on this notice of motion, the memorandum of points and
authorities served and filed herewith, any supplemental memoranda of points and authorities as
may hereafter be filed with the court or stated orally at the conclusion of the hearing on the
motion, on all the papers and records on file in this action, and on such oral and documentary
evidence as may be presented at the hearing of the motion.

Dated: April 27, 2015

Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________

[Attach Certificate of Service]

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF _______

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,

_______________________,
Defendant.

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Case: ________
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO SUPPRESS
EVIDENCE
(PC 1538.5)
Date: ________
Time: ________
Place: ________

Defendant submits the following points and authorities in support of the motion to suppress
evidence:
I. A DETENTION IS UNLAWFUL WITHOUT REASONABLE SUSPICION
A detention is unlawful unless the police have reasonable suspicion for that detention.
To justify an investigative stop or detention, the circumstances known or apparent to the officer
must include specific and articulable facts which, viewed objectively, would cause a reasonable
officer to suspect that (1). some activity relating to crime has taken place or is occurring or about
to occur, and (2). the person the officer intends to stop or detain is involved in that activity (In re
Tony C., 21 Cal. 3d 888, 893, 148 Cal. Rptr. 366, 582 P.2d 957 (1978)). The corollary to this
rule is that an investigative stop or detention predicated on circumstances which, when viewed
objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may
be acting in good faith. People v. Conway, 25 Cal. App.4th 385, 388-389] A detention based on
an anonymous tip without suitable corroboration is insufficient to justify an investigative stop
and frisk, even if the tip alleges that the suspect is in possession of a firearm. (Florida v. J.L., 529
U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000))

II. A PAT DOWN SEARCH IS ILLEGAL WITHOUT ARTICULABLE FACTS

SUPPORTING A REASONABLE BELIEF THE DEFENDANT IS ARMED AND
DANGEROUS

Even if a defendant is legally detained, a police officer may pat the defendant down only
if there are specific and articulable facts supporting a reasonable belief that the defendant is
armed and dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 909
(1968), the United States Supreme Court held that a police officer who lacks probable cause to
arrest could undertake a patdown search only where he has reason to believe that he is
dealing with an armed and dangerous individual The sole justification of the search is the
protection of the police officer and others nearby, and it must therefore be confined in scope to
an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for
the assault of the police officer.
The officer must be able to point to specific and articulable facts together with rational
inferences there from which reasonably support a suspicion that the suspect is armed and
dangerous. Where, as here, there are no such specific and articulable facts presented, the
patdown search cannot be upheld. (People v. Dickey, 21 Cal. App. 4th 952, 956, 27 Cal. Rptr. 2d
44 (2d Dist. 1994))

III. DURING A PAT DOWN SEARCH AN OBJECT MAY BE SEIZED ONLY IF IT IS

APPARENTLY A WEAPON OR CONTRABAND
Even if a defendant is legally patted down, an officer may seize an item felt during that
pat down only if it is immediately apparent that the object felt is a weapon or contraband. A
search which is initially a permissible pat down may become impermissible if contraband or a
weapon is not immediately apparent to the officer conducting the pat down. (People v. Collins, 1
Cal. 3d 658, 664, 83 Cal. Rptr. 179, 463 P.2d 403 (1970)). Feeling a soft object in a suspects
pocket during a pat-down, absent unusual circumstances, does not warrant an officers intrusion
into a suspects pocket to retrieve the object. The United States Supreme Court has held that a
soft object may not be retrieved by a police officer performing a pat down search unless its
incriminating character is immediately apparent. (Minnesota v. Dickerson, 508 U.S. 366, 113
S. Ct. 2130, 124 L. Ed. 2d 334 (1993). See People v. Dickey, 21 Cal. App. 4th 952, 957, 27 Cal.
Rptr. 2d 44 (2d Dist. 1994).

IV. A PROBATIONARY SEARCH CONDITION DOES NOT JUSTIFY AN ILLEGAL

SEARCH IF THE CONDITION IS UNKNOWN TO THE OFFICER
An otherwise unlawful search may not be justified by the circumstance that the suspect
was subject to a search condition of which the law enforcement officers were unaware when the
search was conducted. (People v. Sanders, 31 Cal. 4th 318, 335, 2 Cal. Rptr. 3d 630, 73 P.3d 496
(2003))
The requirement that the reasonableness of a search must be determined from the
circumstances known to the officer when the search was conducted is consistent with the primary
purpose of the exclusionary rule-to deter police misconduct. The rule serves to compel respect
for the constitutional guaranty in the only effectively available way-by removing the incentive to
disregard it. (Mapp v. Ohio, 367 U.S. 643, 656, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)).

V. IF THE EVIDENCE IN THIS CASE WAS OBTAINED THROUGH AN UNLAWFUL

ARREST OR DETENTION THE EVIDENCE MUST BE SUPPRESSED.
In Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the U.S.
Supreme Court made it clear not all evidence discovered after an illegal arrest or detention must
be suppressed. Although it suppressed the evidence against one of the defendants, the court
stated it was not holding all evidence is fruit of the poisonous tree simply because it would not
have come to light but for the illegal actions of the police. Rather, the more apt question in such a
case is whether, granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint. (Wong Sun v. U.S., 371 U.S. 471,
487-488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).
Relevant factors in this attenuation analysis include the temporal proximity of the Fourth
Amendment violation to the procurement of the challenged evidence, the presence of intervening
circumstances and the flagrancy of the official misconduct. (People v. Boyer, 38 Cal. 4th 412,
448, 42 Cal. Rptr. 3d 677, 133 P.3d 581 (2006); Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.
Ct. 2254, 45 L. Ed. 2d 416 (1975)).

CONCLUSION
For the foregoing reasons, the motion to suppress should be granted, unless and until the
prosecution timely pleads and then properly proves justification of this warrantless police
conduct.
Dated: April 27, 2015
Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________
[Attach Certificate of Service]

Penal Code 1538.5 authorizes a defendant to move to suppress any evidence, tangible or
intangible, that is the product of an illegal search or seizure. A motion to suppress evidence on
the grounds of an unreasonable search or seizure may be made at the preliminary hearing. (Pen
C 1538.5(a)(2)(f)). The motion must be made in writing with points and authorities and proof
of service. The written motion must include: (1). a list of the specific items of property or
evidence sought to be suppressed; (2). the factual basis for the motion; and (3). the legal
authorities that demonstrate why the motion should be granted (Pen C 1538.5(a)(2)).
The defendant must specify the precise grounds for suppression of the evidence, including the
inadequacy of any justification the prosecution may argue. However, the defendant need not
guess regarding a proposed justification and can wait for the prosecutions presentation. Once
the prosecution offers its justification for the search, the defendant must point out the factual
and legal inadequacies in order to preserve the issue on appeal. (People v. Williams, 20 Cal.
4th 119, 130-131, 83 Cal. Rptr. 2d 275, 973 P.2d 52 (1999))
Notice: A written motion to suppress must be filed and personally served on the prosecutor at
least five days before the date set for the preliminary hearing (Pen C 1538.5(f)(2)). The
preliminary hearing magistrate may grant a continuance for the purpose of filing the motion
upon a showing that counsel was not aware of the evidence or the grounds for suppression.
(Pen C 1538.5(f)(2)).
Discovery: In Magallan v. Superior Court, 192 Cal. App. 4th 1444, 121 Cal. Rptr. 3d 841 (6th
Dist. 2011), review denied, (June 8, 2011), the court held that when a defendant shows that he
needs discovery in order to have a full and fair opportunity to litigate his suppression motion at
the preliminary examination, the magistrate has the power to grant such discovery. The court
reasoned Pen. Code, 1538, subd. (f) is an express statutory provision which entitles a
defendant to the discovery necessary to support the suppression motion that it authorizes to be
brought in conjunction with the preliminary examination. As the Magallan court noted:
Proposition 115 did not eliminate a criminal defendants right to bring a suppression motion
at the preliminary examination. Hence, the need for discovery in support of such a motion was
left unchanged by Proposition 115s other changes to the nature of preliminary examinations.
Although Pen. Code, 1054, subd. (e) precludes discovery except where expressly required by

statute or mandated by the United States Constitution, as a mere statute it has no power to
preclude discovery where it is required to vindicate rights guaranteed by the California
Constitution. (People v. Superior Court, 78 Cal. App. 4th 403, 92 Cal. Rptr. 2d 829 (6th Dist.
2000)). A defendants right to due process under the California Constitution takes precedence
over the discovery statutes and entitles the defense to the discovery necessary to support a Pen.
Code, 1538, subd. (f) motion at the preliminary hearing, even if the requested material is not
enumerated in Pen. Code, 1054. (Magallan v. Superior Court, 192 Cal. App. 4th 1444, 121
Cal. Rptr. 3d 841 (6th Dist. 2011), review denied, (June 8, 2011).
What Evidence Can Be Suppressed: A motion to suppress is restricted to the evidence the
prosecution seeks to introduce at the preliminary hearing. (Pen C 1538.5(f)(1)). If the
prosecution chooses not to seek the introduction of certain evidence at the preliminary hearing,
it cannot be the subject of a motion to suppress at the preliminary hearing. The court may
restrict cross-examination at the preliminary examination regarding search issues, if the
defendant does not or cannot make a motion to suppress. (People v. Williams, 213 Cal. App. 3d
1186, 262 Cal. Rptr. 303 (2d Dist. 1989))
Effect if motion granted: If the motion to suppress is granted at the preliminary hearing and
as a result the case is dismissed, the prosecutor has two options to continue the prosecution;
(1). refile the charge and hold another preliminary hearing; or (2). move to reinstate the
complaint in the superior court under Pen C 871.5. If the prosecutor refiles the case, the
magistrates ruling and factual findings are not binding in any subsequent hearing. (Pen C
1538.5(j); People v. Glenn, 56 Cal. App. 4th 886, 65 Cal. Rptr. 2d 797 (2d Dist. 1997)). If the
prosecution moves in the superior court, within 15 days, to reinstate the complaint, the motion
is determined solely on the basis of the preliminary hearing transcript. (Pen C 871.5(c)). If
the reinstatement motion is decided against the prosecution, the case cannot be refiled. (Pen C
871.5(c))
Prosecution motion for de novo hearing: If the motion to suppress is granted at the
preliminary hearing, and the defendant is held to answer, the prosecution may request a new
Pen C 1538.5 hearing in the superior court. (Pen C 1538.5(j)). The prosecution must move
for the new hearing within 15 days after the preliminary hearing or the ruling becomes binding.

This special hearing is a de novo hearing and decided solely on the evidence presented at the
hearing. (Pen C 1538.5(j)). If the defendants motion to suppress is granted at this special
hearing and the case is not dismissed, and if the People have additional evidence that was not
presented at the hearing, they have the right during trial to show good cause why the evidence
was not presented and why the ruling should not be binding. (Pen C 1538.5(j))
Two dismissal rulefiling new complaint: When the magistrate at a preliminary hearing
grants a defense motion to suppress evidence, declines to hold the defendant to answer for the
charged offenses, and consequently dismisses the complaint, the prosecution may file a new
complaint (Pen C 1538.5). If the magistrate at the second preliminary hearing grants a
defendants second motion to suppress evidence and then dismisses the case for insufficient
evidence, the prosecution is prohibited from filing a new complaint. (Pen C 1538.5(p)).
However, if the prosecution discovers new evidence, related to the motion, which was not
reasonably discoverable at the time of the second suppression hearing, it may relitigate the
motion. Relitigation of the motion must be heard by the same judge who granted the motion at
the first hearing, if the judge is available (Pen C 1538.5(p)).
The statutory provisions under Pen C 871.5 is not subject to the statutory limitation of Pen C
1538.5(p) that, absent new evidence, prohibits the filing of a new complaint if the
defendants suppression motion has been granted twice. (People v. Toney, 32 Cal. 4th 228, 8
Cal. Rptr. 3d 577, 82 P.3d 778 (2004))
Renew motion in the trial court: If a motion to suppress was made at the preliminary
examination, the motion may be renewed in the trial court, but the ruling of the trial court is
based solely on the evidence contained in the transcript of the preliminary examination unless:
(1). the parties agree otherwise; (2). a party has other evidence that could not have reasonably
been presented at the preliminary examination; or (3). the People wish to recall a witness who
had previously testified at the preliminary examination. (Pen C 1538.5 (i); People v. Hansel,
1 Cal. 4th 1211, 4 Cal. Rptr. 2d 888, 824 P.2d 694 (1992)). If the prosecution objects to the
presentation of additional evidence by the defense, the court decides at an in camera hearing
whether the evidence could reasonably have been presented at the preliminary hearing. (Pen
C 1538.5 (i)). In ruling on a renewal of a suppression motion, the superior court

independently decides the legal issues, but is bound by any factual findings made by the
magistrate. (Pen C 1538.5 (i)); People v. Memro, 11 Cal. 4th 786, 846, 12 Cal. 4th 783d, 47
Cal. Rptr. 2d 219, 905 P.2d 1305 (1995))
995 Motion: The defendant may seek review of a preliminary hearing denial of a suppression
motion as part of a Pen C 995 motion. The motion judge is bound by the magistrates
findings of fact, and sits merely as a reviewing court; it must draw every legitimate inference
in favor of the prosecution, and cannot substitute its judgment as to the credibility or weight of
the evidence for that of the magistrate. (People v. Laiwa, 34 Cal. 3d 711, 195 Cal. Rptr. 503,
669 P.2d 1278 (1983))
Burden of producing evidence and proof: The defendant has the burden of producing
evidence. If there was no warrant, the defense must establish this fact (usually by stipulation).
Once the lack of a warrant is established, the burden shifts to the prosecution to justify the
search. (People v. Williams, 20 Cal. 4th 119, 130-131, 83 Cal. Rptr. 2d 275, 973 P.2d 52
(1999))
Standing: [A] Fourth amendment violation can be successfully urged only by those whose
rights were violated by the search itself, not by those aggrieved solely by the introduction of
damaging evidence. (Alderman v. U.S., 394 U.S. 165, 171-172, 89 S. Ct. 961, 22 L. Ed. 2d
176 (1969)). The issue of whether a defendant has standing to challenge a search and seizure
depends on whether the defendant had a reasonable expectation of privacy in the place
searched or object seized. (In re Lance W., 37 Cal. 3d 873, 210 Cal. Rptr. 631, 694 P.2d 744
(1985); Katz v. U.S., 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967))
Standing: In order to establish standing a defendant must show an actual (subjective).
expectation of privacy. . . [and that the expectation is] one that society is prepared to
recognize as reasonable. (Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed.
2d 220 (1979)). There is no set formula for determining whether a person has a reasonable
expectation of privacy in the place searched, but the totality of the circumstances are
considered. (People v. Koury, 214 Cal. App. 3d 676, 686, 262 Cal. Rptr. 870 (4th Dist. 1989)).
Among the factors sometimes considered in making the determination are whether the
defendant has a possessory interest in the thing seized or place searched; whether he has the

right to exclude others from that place; whether he has exhibited a subjective expectation that
it would remain free from governmental invasion; whether he took normal precautions to
maintain his privacy and whether he was legitimately on the premises. (In re Rudy F., 117
Cal. App. 4th 1124, 1132, 12 Cal. Rptr. 3d 483 (2d Dist. 2004)).
Applicable law: In California, issues relating to the suppression of evidence derived from
governmental searches and seizures are reviewed under federal constitutional standards.
(People v. Ayala, 23 Cal.4th 225, 254255, 96 Cal.Rptr.2d 682, 1 P.3d 3 (2000)).
Proposition 8 (Cal Const, Art I, 28(d)), adopted in 1982, requires the admission of all
relevant evidence except where suppression is required by the federal Constitution. (In re
Lance W., 37 Cal. 3d 873, 879, 210 Cal. Rptr. 631, 694 P.2d 744 (1985)). All state courts are
bound by the United States Supreme Court interpretations of the federal constitutional
protections. (People v. Bradley, 1 Cal. 3d 80, 86, 81 Cal. Rptr. 457, 460 P.2d 129 (1969)).
Decisions of the lower federal courts on questions of federal law are persuasive, and entitled to
great weight, but are not binding precedent, especially when the law on a particular question is
not well settled. (See, e.g., Wagner v. Apex Marine Ship Management Corp., 83 Cal. App. 4th
1444, 1451, 100 Cal. Rptr. 2d 533 (1st Dist. 2000); Yee v. City of Escondido, 224 Cal. App. 3d
1349, 1351, 274 Cal. Rptr. 551 (4th Dist. 1990). However, deference is required where
decisions on federal law by lower federal courts are numerous and consistent. Conrad v. Bank
of America, 45 Cal. App. 4th 133, 150, 53 Cal. Rptr. 2d 336 (3d Dist. 1996))
In Herring v. United States, 129 S.Ct. 695, 698, 701, 172 L.Ed.2d 496 (2009), the United
States Supreme Court reiterated that suppression is not an automatic consequence of a Fourth
Amendment violation. The Court stated that, before applying the exclusionary rule, courts
should examine whether the benefits of deterring police misconduct outweigh the substantial
social costs of suppression, including the principal concern of letting guilty and possibly
dangerous defendants go free-something that offends basic concepts of the criminal justice
system. Chief Justice Roberts, stated that [t]o trigger the exclusionary rule, police conduct
must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the justice system . the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances

recurring or systemic negligence. An error that arises from nonrecurring and attenuated
negligence is far removed from the core concerns that led us to adopt the rule in the first
place, (Herring v. United States, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009)).
Duty of Court to Resolve Factual Dispute: In ruling on defendants motion to suppress
evidence the court has a duty to resolve any disputed issue of fact, such as a credibility issue,
material to the resolution of a motion to suppress evidence. (People v. Rodriguez, 143 Cal.
App. 4th 1137, 49 Cal. Rptr. 3d 811 (2d Dist. 2006)) (the trial court failed to resolve the
credibility dispute, about whether officers allegedly fabricated their probable cause,
notwithstanding credible evidence that officers may have invented justification for traffic stop
in order to run warrant check on passenger and driver of vehicle)
Appellate Remedies: A defendant may appeal the ruling on a motion to suppress, following a
conviction, notwithstanding the fact that the conviction was the result of a plea of guilty or no
contest. (Pen C 1538.5(m)). However, in a felony prosecution, the defendant must have made
a motion at some point, in the superior court, to challenge the legality of the search or seizure.
Even after court unification a defendant must renew a suppression motion in the trial court in
order to preserve the issue for appeal. (People v. Hoffman, 88 Cal. App. 4th 1, 105 Cal. Rptr.
2d 372 (4th Dist. 2001) Making a motion to suppress at a preliminary examination is
insufficient to preserve the search and seizure issue for appeal; the defendant must make the
motion in the trial court. (People v. Hinds, 108 Cal. App. 4th 897, 134 Cal. Rptr. 2d 196 (3d
Dist. 2003)). The issue must be raised in the trial court by a renewed motion to suppress,
pursuant to Pen C 1538.5, or by a motion to set aside the information pursuant to Pen C
995. (People v. Burns, 20 Cal. App. 4th 1266, 1271, 25 Cal. Rptr. 2d 230 (2d Dist. 1993)).
Notwithstanding the broad language of Pen C 1237.5, the denial of a 1538.5 motion may be
raised on appeal from a guilty plea without issuance of a certificate of probable cause. (People
v. Panizzon, 13 Cal. 4th 68, 74-75, 51 Cal. Rptr. 2d 851, 913 P.2d 1061 (1996))
Appellate Remedies: However, a defendants suppression motion before a magistrate
adequately preserves the issue for purposes of appeal, where the superior court considers the
validity of the search in deciding to grant a prosecution motion to reinstate the complaint
pursuant to Pen C 871.5. (People v. Gutierrez, 124 Cal. App. 1481, 21 Cal. Rptr 3d 926

(2004)).
If a defendant is required to contest the legality of the search in the trial court in order to
preserve that challenge for appeal, the defendant cannot preserve for appeal an evidentiary
issue not raised or argued in the trial court. On appeal from the trial courts order, the appellate
courts will consider only the arguments raised before the trial court. (People v. Hawkins, 211
Cal. App. 4th 194, 149 Cal. Rptr. 3d 469 (2d Dist. 2012), review denied, (Feb. 27, 2013);
(People v. Lilienthal, 22 Cal. 3d 891, 150 Cal. Rptr. 910, 587 P.2d 706 (1978).