AddressBlock

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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 QUASH SEARCH
WARRANT
Date: ________
Time: ________
Place: ________

TO THE DISTRICT ATTORNEY OF [NAME OF COUNTY] AND/OR [HIS/HER]

REPRESENTATIVE:
PLEASE TAKE NOTICE that on [date of hearing], at [time of hearing], or as soon
thereafter as the matter may be heard in the courtroom of Department [name of department] of
the above-entitled court, the defendant will move the court for an order quashing search warrant
[number of warrant] and suppress as evidence and restore to the defendant all property seized
under authority of and during the execution of the above-numbered warrant.
This Motion will be made on the ground that the search and seizure pursuant to the
warrant was unreasonable in violation of the Fourth and Fourteenth Amendments to the United
States Constitution in that there was no probable cause for the issuance of the search warrant and
the executing officers could not reasonably rely on the validity of the warrant.
The motion will be based on this notice of motion, on the memorandum of points and
authorities served and filed herewith, on such supplemental memoranda of points and authorities
as hereafter may be filed with the court, on all the papers and records on file in this action, and
such oral and documentary evidence as may be presented at the hearing of the motion.

Dated: April 27, 2015

Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________

AddressBlock
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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: ________

POINTS AND AUTHORITIES IN

SUPPORT OF MOTION TO QUASH
WARRANT AND SUPPRESS EVIDENCE
Date: ________
Time: ________
Place: ________

Defendant submits the following points and authorities in support of the motion to quash the
search warrant:
I. STALE INFORMATION CANNOT ESTABLISH PRESENT PROBABLE CAUSE FOR
A SEARCH
There are two probable cause prerequisites for the issuance of a search warrant. The first
is the commission element, i.e., probable cause to believe a crime has been committed and,
second, the nexus element, i.e., a factual showing that evidence related to the suspected
criminal activity probably will be found at the location to be searched at the time of the search
and not some other time. United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996); United
States v. Grubbs, 547 U.S. 90, 94 (2006); United States v. Kennedy, 427 F.3d 1136 (8th Cir.
2005); United States v. Greany, 929 F.2d 523, 52425 (9th Cir.1991); United States v. Hove, 848
F.2d 137, 140 (9th Cir.1988); Alexander v. Superior Court, 9 Cal. 3d 387, 393 (1973).
Stale information in a search warrant affidavit does not establish present probable cause
for a search. Information that is remote in time may be deemed stale and thus unworthy of
consideration in determining whether an affidavit for a search warrant is supported by probable

cause. Such information is deemed stale unless it consists of facts so closely related to the time
of the issuance of the warrant that it justifies a finding of probable cause at that time. (United
States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006))
A search warrant requires probable cause to believe that the items described in the
warrant will be found at the place to be searched at the time of the search. (United States v.
Grubbs, 547 U.S. 90, 94, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006)) Such probable cause consists
of a fair probability that contraband or evidence of a crime will be found in a particular place
at the time of the search. See Illinois v. Gates, 462 U.S. 213, 238 (1983); The belief that the items
sought will be found at the location to be searched cannot be based on mere suspicion. (United
States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir.1994))
In Sgro v. U.S., 53 S.Ct. 138, 85 A.L.R. 108, 77 L.Ed. 260 (1932), in which the Supreme
Court held illegal a search warrant first issued July 6, returned unexecuted on July 27 and later
reissued on the basis of the information in the July 6 affidavit, the Court explained the
importance of fresh information in the affidavit in determining the existence of probable cause at
the time of the issuance of a search warrant:
While the statute does not fix the time within which proof of probable cause must be
taken by the judge or commissioner, it is manifest that the proof must be of facts so closely
related to the time of the issuance of the warrant as to justify a finding of probable cause at that
time.
Therefore, in order to satisfy the Fourth Amendment, the affidavit in support of a search
warrant must inform the magistrate of facts so closely related to the time of the issue of the
warrant as to justify a finding of probable cause at that time. (Alexander v. Superior Court, 9
Cal.3d 387, 393 (1973); see also, People v. Hirata, 175 Cal.App.4th 1499 (2009) (warrant stale
where there was 82-day delay between drug transaction and date of warrant issued); People v.
Hulland, 110 Cal.App.4th 1646, 1652, 2 Cal.Rptr.3d 919 (2003) (delay of 34 days between a
controlled sale of heroin and officers affidavit for search warrant insufficient to establish present
probable cause); Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003) (tip from informant was stale
where informants involvement with alleged dealer ended more than two years before tip was
used to obtain search warrant); U.S. v. Jones, 641 F.2d 425 (6th Cir. 1981) (officers knowledge

that defendant and his brother used to associate, even if correct, was stale since based on events
which occurred at least two years before search); U.S. v. Charest, 602 F.2d 1015, 1017 (1st Cir.
1979) (affidavit submitted 18 days after homicide averring reliable informant told police
defendant had shot victim, did not provide reasonable basis for believing that weapon used in the
crime would still be found in defendants residence).
II. CONTINUOUS ACTIVITY EXCEPTION DOES NOT APPLY
This case is unlike those involving warrants for prior records that are maintained in the
regular course of business. (See Andresen v. Maryland, 427 U.S. 463 (1976) (the Supreme Court
held a three-month delay between the completion of the transactions on which the warrants were
based and the ensuing searches did not render stale the information because it was reasonable to
believe law office and real estate business records prepared in the ordinary course of business
would be kept for the three month period); see also U.S. v. Ninety-Two Thousand Four Hundred
TwentyTwo Dollars and FiftySeven Cents ($92,422.57), 307 F.3d 137 (3d Cir. 2002) (warrant
not stale in complex food stamp fraud and money laundering scheme, despite 11-month lapse
between events alleged in affidavit and execution of warrant, where scheme had allegedly gone
on for some time and warrant was for types of company business records typically retained by
businesses more than 11 months).
Nor does this case involve repeated conduct by the defendant, such as habitually selling
contraband, which may give rise to a finding that the criminal activity is continuous. (See U.S. v.
Williams, 603 F.2d 1168 (5th Cir. 1979) (no staleness when informant gave his tip to police
officer within the last six months, because affidavit described a continuing course of narcotics
manufacture and distribution which was still operating when warrant was executed);
III. UNSUPPORTED OPINIONS OF THE AFFIANT ARE INSUFFICIENT TO
ESTABLISH PROBABLE CAUSE
Opinions and conclusions of the affiant, without disclosing the underlying facts, are
insufficient to establish the warrant probable cause requirement of the Fourth Amendment. The
inferences necessary to determine probable cause are to be drawn by the magistrate, not the
affiant. (Johnson v. United States, 333 U.S. 10, 1313 (1948); People v. Smith, 180 Cal.App.3d

72, 8687 (1986); People v. Pellegrin, 78 Cal.App.3d 913, 916917 (1977); see also United
States v. Rosario, 918 F.Supp. 524, 52830 (D.R.I. 1996) (agents opinion, based on her
knowledge of behavior and practices of narcotics dealers cannot, by itself, furnish requisite
nexus between criminal activity and place to be searched.).
While an officers training and experience may be considered in determining probable
cause, it cannot substitute for the lack of evidentiary nexus, prior to the search, between the
location to be searched and probable cause to believe the search will produce evidence of the
suspected criminal activity. (See United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) (no
probable cause to search where no facts showed any connection between defendants criminal
activity and safe deposit boxes in defendants name).
IV. THE GOOD FAITH EXCEPTION IS INAPPLICABLE
Evidence obtained in violation of the Fourth Amendment need not be suppressed where
the officer executing the warrant did so in objectively reasonable reliance on the warrants
authority. The test for determining whether this exception applies is whether a reasonably well
trained officer would have known that the search was illegal despite the magistrates
authorization. (United States v. Leon, 468 U.S. 897, 922924, 104 S.Ct. 3405, 82 L.Ed.2d 677
(1984)).
The prosecution bears the burden of proving that the officers reliance on the warrant was
objectively reasonable. (People v. Hulland, 110 Cal.App.4th 1646, 16541656, 2 Cal.Rptr.3d
919 (2003)).
The fact that the magistrate signed the warrant cannot be the basis of the officers good
faith. The affiants own training and experience are irrelevant in determining the issue of good
faith. The determination must be made on the basis of whether a reasonably well-trained officer
would have known that the affidavit failed to establish probable cause. People v. Maestas, 204
Cal. App. 3d 1208 (1988).
It is not objectively reasonable for officers to believe that a search is legal where there is
a long delay between the search and the crime described in the affidavit. (See People v. Hulland,
110 Cal.App.4th 1646, 1655, 2 Cal.Rptr.3d 919 (2003); People v. Hirata, 175 Cal.App.4th 1499,

1508, 96 Cal.Rptr.3d 918 (2009))

Dated: April 27, 2015
Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________

Stale information in a search warrant affidavit does not establish present probable cause
for a search. Information that is remote in time may be deemed stale and thus unworthy of
consideration in determining whether an affidavit for a search warrant is supported by probable
cause. Such information is deemed stale unless it consists of facts so closely related to the time
of the issuance of the warrant that it justifies a finding of probable cause at that time. (United
States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006))
There are two probable cause prerequisites for the issuance of a search warrant. The first
is the commission element, i.e., probable cause to believe a crime has been committed and,
second, the nexus element, i.e., a factual showing that evidence related to the suspected
criminal activity probably will be found at the location to be searched at the time of the search
and not some other time. (U.S. v. Zayas-Diaz, 95 F.3d 105 (1st Cir. 1996); U.S. v. Grubbs, 547
U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed. 2d 635 (2006); U.S. v. Kennedy, 427
F.3d 1136 (8th Cir. 2005); U.S. v. Greany, 929 F.2d 523 (9th Cir. 1991); U.S. v. Hove, 848 F.2d
137 (9th Cir. 1988) (rejected by, U.S. v. Taxacher, 902 F.2d 867 (11th Cir. 1990)); Alexander v.
Superior Court, 9 Cal. 3d 387, 107 Cal. Rptr. 483, 508 P.2d 1131 (1973)).
Such probable cause consists of a fair probability that contraband or evidence of a
crime will be found in a particular place at the time of the search. See Illinois v. Gates, 462 U.S.
213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); U.S. v. $191,910.00 in U.S. Currency, 16 F.3d
1051 (9th Cir. 1994) (mere suspicion that items will be found insufficient); U.S. v. Ramos, 923
F.2d 1346 (9th Cir. 1991) (overruled by, U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001)); U.S. v.
Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed. 2d 635 (2006)
(anticipatory warrant cannot be executed before occurrence of triggering event, otherwise there
would be no reason to believe the item described in the warrant could be found at the searched
location); People v. Hirata, 175 Cal. App. 4th 1499, 96 Cal. Rptr. 3d 918 (2d Dist. 2009), citing
U.S. v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed. 2d 635 (2006)).
Although there is no bright line rule indicating when information becomes stale, delays of
more than four weeks are generally considered insufficient to demonstrate present probable
cause. (People v. Hulland, 110 Cal.App.4th 1646, 1652, 2 Cal.Rptr.3d 919 (2003) (a delay of 34
days between a controlled sale of heroin and the officers affidavit for the search warrant has

been held insufficient to establish present probable cause).

Continuous activity exception: Delays beyond four weeks may be justified where there is
a reasonable inference that the defendants actions will continue until the time of the search.
(People v. Hulland, 110 Cal.App.4th 1646, 1652, 2 Cal.Rptr.3d 919 (2003). However, the
affidavit must contain facts showing that such activity will persist. (People v. Hirata, 175
Cal.App.4th 1499, 96 Cal.Rptr.3d 918 (2009)).
Anticipatory Warrants: Anticipatory warrants present the contrasting situation of
information not stale but too fresh because the probable cause has not been established by past
events. Such a warrant is based on a showing that all of the requisites for a valid warrant will
occur at a specified future time, on the occurrence of a specified event. (Alvidres v. Superior
Court, 12 Cal. App.3d 575, 582, 90 Cal. Rptr. 682 (1970))
Anticipatory warrants are, in principle, no different from ordinary warrants. Both require
the magistrate to determine that it is probable that contraband or evidence of a crime will be on
the described premises when the warrant is executed. To satisfy the Fourth Amendment
requirement of probable cause, two prerequisites of probability must be satisfied. First, it must
be probable that if the triggering condition occurs, the property listed in the warrant will be on
the described premises when the warrant is executed. Second, it must be likely that the triggering
condition will occur. The affidavit must supply the magistrate with sufficient information to
evaluate each of these aspects of the probable cause determination. The Fourth Amendment
specifies only two matters that must be particularly described in a search warrant, the place to
be searched and the persons or things to be seized. Hence, there is no requirement that the
triggering condition for an anticipatory search warrant be set forth in the warrant itself. (United
States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 1500, 164 L.Ed.2d 195, 203 (2006) (search was
valid; successful delivery of videotape of child pornography would plainly establish probable
cause for search, and affidavit established probable cause to believe that videotape would be
successfully delivered)
Good faith exception: This exception provides that evidence obtained in violation of the
Fourth Amendment need not be suppressed where the officer executing the warrant did so in
objectively reasonable reliance on the warrants authority. The test for determining whether the

exception applies is whether a reasonably well trained officer would have known that the search
was illegal despite the magistrates authorization. (United States v. Leon, 468 U.S. 897, 922
924, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).
An officers reliance on an invalid warrant is not objectively reasonable if the record
reflects that: (1) the affidavit was so lacking in indicia of probable cause that it would be entirely
unreasonable for an officer to believe such cause existed, or (2) the warrant was so facially
deficient that the executing officer could not reasonably presume it to be valid. (See People v.
Hulland, 110 Cal.App.4th 1646, 1652, 2 Cal.Rptr.3d 919 (2003) (Police officers reliance on
invalid search warrant to search defendants home based on stale information from controlled
drug

buy

was

not

objectively

reasonable);