Archives : 1998 : July

QUICK DECISION – Suppression Motion Must Be Filed Before Prelim

LOS ANGELES DAILY JOURNAL Vol. 111, No. 142 Friday, July 24, 1998

By: Imhoff & Associates, PC Criminal Defense Attorney

In light of amendments to California Penal Code Section 1538.5 that became effective Jan. l, it is no longer possible for counsel to wait until a preliminary hearing is in progress to decide whether to make a motion to suppress evidence.

In regard to suppression motions in general, the Legislature added Section 1538.5 (a)(2), which provides that a motion to suppress evidence “shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.”

Another Section 1538.5, subsection, pertaining to motions to suppress at the preliminary hearing, has also been added. Section 1538.5 (f)(2) states that ” the motion may be made at the preliminary examination only if at least five court days before the date set for the preliminary examination, the defendant has filed and personally served on the People, a written motion accompanied by a memorandum of points and authorities as required by {Section 1538.5 (a) (2)}.

“At the preliminary examination, the magistrate may grant the defendant a continuance for the purpose of filing the motion and serving the motion upon the People, at least five court days before resumption of the examination, upon a showing that the defendant or his or her attorney of record was not aware of the evidence or was not aware of the grounds for suppression before the preliminary examination.”

New Prosecution Response Requirement

The prosecution is not required to file a response, but if it does so, new subsection (f)(3) requires the response be filed at least two court days before the hearing.

It is likely that the district attorney’s response to a request for a continuance, based on a lack of prior awareness of the evidence or the grounds for suppression, will be that the defendant was provided with the police report and should have been aware of the evidence or the possible grounds for suppression from what is in the reports. It remains to be seen how liberally the magistrates will rule on motions to continue for the purpose of filing and serving a written motion.

But assume that no written motion to suppress has been filed because certain search issues were not apparent from the police report. Further assume that because no suppression motion was filed, questions on cross-examination concerning search issues will be objected to as irrelevant. How, then, will defense counsel become aware of grounds for suppression if questions dealing with the search will not be allowed unless a written motion to suppress has been filed?

Defendants Losing Suppression Motion

With the enactment of Section 1538.5 (i) some years ago, defendants making and losing a suppression motion at the preliminary hearing, who wanted to renew the motion in Superior Court, have been limited to the transcript of the preliminary hearing and to evidence that “could not reasonably have been presented at the preliminary hearing.” No such limitation is placed on the prosecution, which may recall witnesses who testified at the preliminary hearing.

Because the defense often does not have all its investigation completed at the time of the preliminary hearing, even as to search-and-seizure issues, the practical effect of Section 1538 (i) has been to greatly limit the number of cases in which defendants made a suppression motion at the preliminary hearing. Since the defendant is not automatically entitled to hearing de novo in Superior Court, the better strategy has been to wait until the case is in Superior Court before filing the suppression motion.

Filing a Suppression Motion

As a result of Section 1538.5 (i), magistrates have ruled irrelevant any questions dealing with search-and-seizure issues unless the defendant orally announced his intent to make a suppression motion at the preliminary hearing. A frequently heard inquiry from the bench has been: “Are you making a suppression motion, counsel?”

If the answer is “yes, your Honor,” the preliminary hearing becomes the “one bite at the apple” and an attorney making a suppression motion in Superior Court will be stuck with the preliminary hearing transcript. If the answer is “No, Your Honor” counsel will not be allowed to ask questions that even remotely deal with search-and-seizure issues. Now, with the enactment of Section 1538.5 (f)(2), an added hindrance to the making of a suppression motion at the preliminary hearing has been legislated.

What will be considered compliance with Section 1538.5(a)(2)? Two schools of thought exist on what kind of a motion will satisfy the code.

The minimalist approach suggests that counsel disclose as little as possible, which is consistent with the “don’t show your cards” strategy. The danger here is that a conservative judge might find the motion insufficient and not allow the suppression to be argued. It remains to be seen how strict the magistrates will be regarding the sufficiency of this motion.

Ever since Proposition 115 in 1990, it has been less and less possible for the defense to play the “don’t show your cards” game anyway. Consider the effect of California Penal Code Section 1054.3, the “reciprocal-discovery” statute. This statute requires that the defense disclose to the prosecution the names and addresses of intended trial witnesses, as well as any physical evidence defendant intends to offer at the trial. A possible sanction for non-compliance with this duty is the court not allowing the witness or the physical evidence to be presented.

Attorneys fortunate enough to belong to CLARAWEB will find forms of the minimalist motion, as well as more extensive ones, on this World Wide Web site, maintained by the California Public Defender’s Association.

One thing, however, is certain – if an attorney does not put the motion in writing, he or she will not be allowed to argue for suppression at the preliminary hearing. On the other hand, in light of how few suppression motions are granted at the preliminary hearing, and in light of the tremendous advantage given to the prosecution by Section 1538.5(i), maybe this isn’t such a great loss after all.