Chapter 62: Motions to Suppress Evidence (Fourth Amendment)
Generally
Types of suppression motions: There are three types of motions by which a defendant may seek to suppress evidence obtained by officers on grounds it was obtained as the result of an illegal search or seizure:
(1) Motions to Suppress (1538.5 Motions)
(2) Motions to Quash Search Warrant
(3) Motions to Traverse Search Warrant
Suppression Procedures Covered Elsewhere
Suppression Prerequisite Chapter 58
Cost-Benefit Analysis
Miranda suppression Chapter 46
Miranda Suppression Rules
Involuntariness suppression Chapter 47
Interrogation
Sixth Amendment suppression Chapter 49
Questioning Charged Suspects
Lineup suppression Chapter 52
Lineups and Showups
Motions to Suppress (1538.5)
Definitions
Motion to suppress: A Motion to Suppress Evidence, also known as a "1538.5 motion,"[1] is a proceeding in which a defendant seeks an order that prohibits prosecutors from using certain evidence at trial on grounds that it was obtained by means of an illegal search or seizure.
"Search": A "search" can occur in two ways:
Intrusion on reasonable privacy interest (The Katz test): A search results if officers intruded into an area where a person had a reasonable expectation of privacy. See Chapter 59
Standing.
Intrusion + intent to obtain information (The Jones test): Even if a person did not have a reasonable expectation of privacy in a place or thing, a "search" of it results if officers intruded upon it for the purpose of obtaining incriminating evidence against a person who owned, controlled, or lawfully possessed it.[2]
"Seizure": A "seizure" of property occurs when there is "some meaningful interference with an individual's possessory interests in that property."[3]
"Standing": Even if officers searched or seized private property, a person will not be permitted to challenge the legality of the search unless he had "standing" to do so, which exists if he had a reasonable expectation of privacy in the property. See Chapter 59
Standing.
"Illegal" search: Under the Fourth Amendment, a search is illegal if it was unreasonable.[4]
Requirements to suppress: Evidence can be suppressed only if (1) the judge determines that an officer obtained the evidence in violation of the Fourth Amendment, and (2) the costs of suppression outweigh its benefits. For example, suppression may be deemed unwarranted if the evidence was obtained by means of a search warrant that, although it failed to establish probable cause, the existence of probable cause was a "close" call.[5] This second requirement is covered in Chapter 58
Cost-Benefit Analysis.
Purpose of suppression: To deter unreasonable police conduct.[6]
How the motion must be brought: Per Penal Code§ 1538.5.[7]
What may be suppressed: The following evidence may be suppressed if obtained by means of an unreasonable search or seizure: (1) primary and derivative physical evidence,[8] (2) statements by suspects,[9] and (3) observations by officers.[10]
Search of servers in foreign country: This subject is addressed by the Se
When the motion must be made
Misdemeanors: The motion must be made before trial,[11] unless counsel had no opportunity to do so or unless counsel was unaware of the grounds for the motion.[12]
Felonies: The motion may be made as follows:
Motions before preliminary hearing: The defendant may make the motion to be heard in conjunction with the preliminary hearing.[13]
When the motion must be filed: The defense must file its motion and serve it on the prosecution at least five court days before the preliminary hearing.[14] If counsel fails to comply with the notice requirements, he may be given an opportunity to comply only if he proves (1) he was unaware of the existence of the evidence he is seeking to suppress, or (2) he was unaware of the grounds for suppressing it.[15]
Prosecution's response: The prosecution's written response must be filed and served at least two court days before the hearing.[16] A response by the prosecution to the defendant's response is not required.[17]
Limitation on suppressible evidence: The only evidence that may be suppressed is evidence that the prosecution intends to present at the preliminary hearing.[18]
Pretrial motions
If the motion was not heard at preliminary hearing: If the defense did not file a motion in conjunction with the preliminary hearing, it may do so before trial.[19] The motion will ordinarily be heard in a department that regularly hears suppression motions.
If the motion was heard at preliminary hearing: If a motion to suppress was made and denied at the preliminary hearing, the defense may renew the motion at a pretrial hearing, usually in the Law and Motion Department.[20]
When motion must be filed: The defense must file its motion and serve it on the prosecution at least ten court days before the hearing.[21]
Prosecution's response: The prosecution's written response must be filed and served at least two court days before the hearing.[22] A written response by the defense is not required.[23]
Hearing procedure
Transcript: The court will consider the transcript of the preliminary hearing.[24]
Prosecution may call witnesses: The prosecution may present additional testimony from witnesses who testified at the preliminary hearing.[25]
Restriction on defense evidence: The defense may present evidence only if it could not reasonably have presented it at the preliminary hearing.[26]
Presumptions in favor of judge's findings: The factual findings of the preliminary hearing judge are binding if supported by substantial evidence.[27]
Motions in trial court
Before trial: The motion may be made in the trial court if there was no opportunity beforehand, or if counsel was unaware of grounds for it.[28]
Notice to prosecution: The defense must notify the prosecution of the hearing date at least ten court days in advance.[29]
Prosecution's response: The prosecution's response must be filed and served at least two court days before the hearing.[30] The defense need not respond.[31]
During trial: Motions brought during trial are untimely and are disapproved except when there has been a change in the applicable law, or the defense discovered material evidence pertaining to the issue that would not have been obtained earlier by due diligence.[32]
Defendant's moving papers: A motion to suppress must (1) be in writing, (2) contain a list of all evidence that the defense seeks to suppress, (3) state the factual basis for the motion, (4) include a memorandum of points and authorities, and (5) include proof of service on the prosecution.[33] "A legal contention stated as a bare assertion without supporting authority is forfeited."[34]
Problem areas
Continuances: It is an abuse of discretion for a court to deny a continuance "when it is reasonably foreseeable that dismissal of the case will result, unless dismissal would be in furtherance of justice."[35]
Too many issues: "The claims chosen should be few and carefully measured for maximum effect. A circumspect approach boosts credibility, while raising every conceivable challenge on appeal can dilute the persuasiveness of plausible arguments."[36]
Absurd theories: Defense attorneys do not have a duty to seek suppression by resorting to bizarre and ridiculous theories. As the Court of Appeal aptly observed,
"We find nothing in the cases on the duties of counsel which commends the raising of absurdities, and, as any experienced trial lawyer knows, one can only go to the intellectual credibility well so often before he runs the risk of it being dry for his best arguments."[37]
Hearing procedure
Burden of proof: The burden of proof is as follows:
Warranted search: If the evidence was obtained pursuant to a warrant:
Standing: The defense has the burden of proving standing: See Chapter 59
Standing
Illegal search: The defense also has the burden of proving that a warranted search or seizure was unlawful. This is because a search made pursuant to a warrant is presumptively valid.[38]
Warrantless search: If the evidence was obtained in the course of a warrantless search:
Defense burden
Standing: The defense has the burden of proving standing: See Chapter 59
Standing.
Warrantless search: The defense has the burden of proving that the search was made without a warrant. This burden can be met by "simply asserting the absence of a warrant and making a prima facie showing to support that assertion."[39] Because this is seldom a contested issue, it is usually resolved by stipulation.
Prosecution burden: If the defense meets its burden, the burden shifts to the prosecution to prove—by a preponderance of the evidence—that the search or seizure was lawful.[40]
Hearsay: Prosecutors rely on hearsay in establishing probable cause.[41] Also see Chapter 1
Principles of Probable Cause and Reasonable Suspicion (Information Inadmissible in Court, Hearsay).
Officers' legal theory is not binding: It is immaterial that officers testified they conducted the search based on a particular legal theory, so long as there existed another legal theory that supported the officers' actions.[42]
If a witness refuses to be cross-examined: If a witness testifies but asserts the privilege against self-incrimination during cross-examination, the court may strike his testimony.[43]
Court's duties: The judge should (1) make findings of fact, (2) select the applicable rules of law, and (3) apply the law to the facts to establish whether or not there has been a constitutional violation.[44] The judge may call and question witnesses.[45] If the motion is granted, the court should specify the suppressed evidence.[46] The judge is not required to make findings of fact, state what inferences were drawn from the evidence, state his or her views of the applicable law, or state reasons for the ruling.[47]
Using defendant's testimony at trial: If the defendant testifies at the hearing, his testimony is inadmissible at trial to prove his guilt, but may be admissible for impeachment.[48]
Evidence admissible in other proceedings: Even if a court rules that certain evidence was obtained in violation of the Fourth Amendment, it may nevertheless be admissible in other proceedings as follows:
Probation and parole hearings: Suppressed evidence may be used at probation and parole hearings.[49]
Impeachment at trial: A statement obtained in violation of the Fourth Amendment may be used to impeach the defendant at trial.[50]
Knock-notice violations: Evidence seized as the result of a knock-notice violation will not be suppressed if, in all other respects, the officers entered in a reasonable manner. See Chapter 21
Forcible Entry.
Evidence of assault on officer: Evidence that the suspect assaulted an officer in the course of a search or seizure will not be suppressed on grounds the suspect had been detained or arrested unlawfully.[51] Also see Chapter 60
"Fruit of the Poisonous Tree"
(Attenuation, Independent intervening event, Committing a new crime).
SVPA proceedings: Evidence obtained in violation of the Fourth Amendment may not be suppressed in court proceedings to determine whether a defendant may be committed under the Sexually Violent Predators Act.[52]
Motions to Quash
: A Motion to Quash is the means by which a defendant may seek suppression of all evidence obtained during the execution of a search warrant on grounds that the affidavit failed to establish probable cause for the search.[53]
Procedure
If affidavit was sealed: If the affidavit was ordered sealed, the required procedure is discussed in Chapter 66
Motions to Review Sealed Affidavit (Hobbs).
If affidavit was not sealed: The court will simply read the affidavit and determine whether the facts contained within its four corners provided the issuing judge with a "substantial basis" for believing there was probable cause.[54]
Certified copy is sufficient: Prosecutors are not required to introduce the original warrant; a certified copy is sufficient.[55]
Common sense interpretation: In determining whether probable cause existed, the court will apply common sense—not hypertechnical analysis.[56]
Deference to issuing judge: The court will give "great deference" to the issuing judge's conclusion that the affidavit was sufficient.[57] This means that courts will resolve all conflicts in favor of the judge's determination and will indulge in all reasonable inferences to uphold the warrant.[58] Further, marginal affidavits will be resolved in favor of upholding the warrant.[59]
The Severance Rule: If the judge rules that the seizure of some of the evidence was supported by probable cause, but the seizure of other evidence was not, it will suppress only the evidence was obtained without probable cause.[60] Exception: All evidence will be suppressed if the amount of illegally-seized evidence was so great that the search took on the character of a "general" or unrestricted search.[61]
Motions to Traverse (Franks Motions)
: A Motion to Traverse (also known as a Franks Motion) is a motion to suppress evidence obtained by means of a search warrant on grounds that the affiant or other officer intentionally or recklessly misrepresented or distorted the facts upon which probable cause was based.[62]
Defendant's moving papers: A defendant who files a Motion to Traverse must make a "substantial preliminary showing" by way of affidavit, declaration, or other substantive statement—or its absence must be "satisfactorily explained"[63]—that demonstrates either of the following:
False information included: If the defendant contends that the affidavit contained false or distorted information, his moving papers must contain the following:
(1) A list of the specific information he claims is false or distorted.
(2) An explanation of why he believes the information is false or distorted.[64]
(3) An explanation of how he knows that the source of the information was a law enforcement officer.
(4) An explanation of why he believes the officer (a) knew the information was false or distorted,[65] or (b) included it in reckless disregard of its accuracy.
(5) An explanation why he believes the false or distorted information was necessary to establish probable cause.[66]
Material information omitted: If the defendant contends that the affiant intentionally or recklessly omitted material information from the affidavit, his moving papers must contain the following:
(1) A list of the specific information he claims was omitted.
(2) An explanation of why he believes the affiant or other law enforcement officer (a) intentionally omitted the information for the purpose of misleading the judge, or (b) omitted the information in reckless disregard of whether the judge was misled.
(3) An explanation of why he believes that the affidavit would have failed to establish probable cause if the omitted information had been included in the affidavit.[67]
Hearing procedure: The court will grant the motion if probable cause does not exist after the illegally-obtained information was deleted from the affidavit or after the omitted information was added to it.[68]
Defendant Discovery
: To obtain the information it needs to make the substantial preliminary showing (discussed above), the defense may seek certain information from officers and prosecutors. See Chapter 66
Motions to Review Sealed Affidavit (Hobbs)and Chapter 64
Motions to Obtain Informant's Records.
Burden of proof
Defendant's burden: Because a search warrant is presumptively valid, the defendant has the burden of proving his allegations by a preponderance of the evidence.[69]
If defendant meets his burden: If the defendant meets this burden, the warrant will shift to the prosecution and will not be given deferential treatment.[70]
Requirements for suppression: A warrant will be declared invalid under Franks only if the court finds that all of the following were true:
(1) False or omitted information: The affidavit contained false information, or certain relevant information was omitted.
Presumption of validity: There is a presumption that the information contained in search warrant affidavits is accurate and that no material information was omitted.[71]
"False": One definition of "false" information was provided by the 8th Circuit as follows: Information is false if the affiant "entertains serious doubts as to the truth of the affidavit or has obvious reasons to doubt the accuracy of the information."[72]
(2) "Material" information: The false or omitted information was "material," meaning the affidavit would no longer establish probable cause if the information was added to or deleted from the affidavit.[73]
(3) Information from officer: The person responsible for adding or omitting the information was an officer.[74]
(4) Intentional or reckless: The officer added or omitted the information for the purpose of misleading the judge or in reckless disregard as to whether the judge was misled; i.e., ordinary negligence is insufficient.[75]
Notes
[1] CAL: Pen. Code§ 1538.5.
[2] USSC:
Florida v. Jardines (2013) 569 US 1, 5 ["When the
government obtains information by physically intruding on persons, houses, papers, or effects, a 'search' within the original meaning of the Fourth Amendment had undoubtedly occurred."]; US v. Jones (2012) 565 US 400, 404 ["We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search.'"]. CAL: P v. Ammons (1980) 103 CA3 20, 26 ["A 'search,' as that term is used in the Fourth Amendment to the federal Constitution and in our own Constitution, implies some exploratory investigation or an invasion and a quest, a looking for or seeking out
[3] QUOTE FROM:
US v. Jacobsen (1984) 466 US 109, 113. OTHER:
US v. Miller (DCC 2015) 799 F3 1097, 1102 ["It is well
established that the reasonableness of a seizure turns on the
nature and extent of interference with possessory, rather than
privacy, interests"].
[4] USSC: New Jersey v.
T.L.O. (1985) 469 US 325, 337 ["the underlying command of
the Fourth Amendment is always that searches and seizures be
reasonable, what is reasonable depends on the context within which
a search takes place"]; Delaware v.
Prouse (1979) 440 US 648, 653-54 ["The essential purpose of
the proscriptions in the Fourth Amendment is to impose a standard
of 'reasonableness' upon the exercise of discretion by government
officials."]; Chimel v. California (1969) 395
US 752, 765 ["To say that the search must be reasonable is to
require some criterion of reason. It is no guide ... to say that
an 'unreasonable search' is forbidden—that the search must be
reasonable. What is the test of reason which makes a search
reasonable? The test is the reason underlying and expressed by the
Fourth Amendment ..." Quoting US v.
Rabinowitz (1950) 339 US 56, 83 (dis. opn. of Frankfurter,
J.)]; US v. White (1971) 401 US 745, 753
["the Fourth Amendment is ruled by fluid concepts of
reasonableness"]. CAL: Alvidres v.
Superior Court (1970) 12 CA3 575, 580 ["This key word
'unreasonable' sets the tone for any analysis of the application
of these constitutional provisions to police action in a given
case."]; P v. Gonzales (1960) 182 CA2 276,
280 ["Reasonableness is not a mere matter of abstract theory but a
practical question to be determined in each case in light of its
own circumstances."]; P v. Henderson (1990) 220 CA3
1632, 1649 ["The underlying constitutional requirement for all
searches and seizures is that they be reasonable."]; Pen. Code
§§ 1538.5(a)(1)(A)-(B). ALSO SEE: Chapman
v. US (1961) 365 US 610, 618 (1961) (Frankfurter,
J., concurring) ["The course of true law pertaining to searches
and seizures, as enunciated here, has not–-to put it mildly–-run
smooth."].
[5] USSC: US v.
Ventresca (1965) 380 US 102, 106 ["in a doubtful or
marginal case a search under a warrant may be sustainable where
without one it would fall"]. CAL: P v.
Varghese (2008) 162 CA4 1084, 1104 ["the resolution of
doubtful or marginal cases should be largely determined by the
preference to be accorded to warrants"].
[6] USSC: Utah v. Strieff (2016)
579 US 232, 241 ["The exclusionary rule exists to deter police
misconduct"]; Herring v. US (2009) 555 US 135, 144 ["To
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."]; Davis v. US (2011)
564 US 229, 236-37 ["The rule's sole purpose, we have repeatedly
held, is to deter future Fourth Amendment violations."];
Davis v. Mississippi (1969) 394 US
721, 724 ["The exclusionary rule was fashioned as a sanction to
redress and deter overreaching governmental conduct prohibited by
the Fourth Amendment."]; Michigan v.
Tucker (1974) 417 US 433, 447 ["By refusing to admit
evidence gained as a result of such conduct, the courts hope to
instill in those particular investigating officers, or in their
future counterparts, a greater degree of care toward the rights of
an accused."]. CAL: P v. Osuna (1986) 187 CA3
845, 855 ["The goal of the exclusionary rule is to protect all
members of society by inducing those we employ to enforce our laws
to conduct themselves in a reasonable manner."]. ALSO SEE:
Spano v. New York (1959) 360 US 315, 320-21
["[There is a] deep-rotted feeling that the police must obey the
law while enforcing the law; that in the end life and liberty can
be as much endangered from illegal methods used to convict those
thought to be criminals as from the actual criminals
themselves."].
[7] CAL: P v.
Williams (1999) 20 C4 119, 127 [Section 1538.5 governs
motions to suppress evidence obtained as a result of a search or
seizure."]; P v. Mattson (1990) 50 C3 826, 851;
P v. Richards (1977) 72 CA3 510, 513; P v.
Campa (1984) 36 C3 870, 885.
[8] USSC: Segura v.
US (1984) 468 US 796, 804 ["the exclusionary rule reaches
not only primary evidence obtained as a direct result of an
illegal search or seizure, but also evidence later discovered and
found to be derivative of an illegality or 'fruit of the poisonous
tree'"]. CAL: P v. Williams (1988) 45 C3
1268, 1299 ["[Suppressible] evidence includes not only what was
seized in the course of the unlawful conduct itself—the so-called
'primary' evidence—but also what was subsequently obtained through
the information gained by the police in the course of such
conduct—the so-called 'derivative' or 'secondary' evidence."];
Pen. Code§ 1538.5(a); P v. Mattson (1990) 50 C3
826, 850.
[9] USSC: Florida v.
Royer (1983) 460 US 491, 501 ["statements given during a
period of illegal detention are inadmissible"]; Wong Sun
v. US (1963) 371 US 471, 485 ["Thus, verbal evidence
which derives so immediately from an unlawful entry and an
unauthorized arrest is no less the 'fruit' of official illegality
than the more common tangible fruits of the unwarranted
intrusion."]. CAL: P v. Mattson (1990) 50 C3
826, 851; P v. Boyer (1989) 48 C3 247, 267;
P v. Richards (1977) 72 CA3 510, 514 ["An illegal
arrest, alone, is utterly irrelevant. All that matters is whether
the illegal arrest resulted in tainted evidence."]. OTHER:
US v. Fellers (8C 2005) 397 US 1090, 1095
["Where the fruits of the Fourth Amendment violation are
confessions, the courts apply the exclusionary rule to ensure that
the confession is not causally linked to the initial
illegality."].
[10] CAL: Kirby v.
Superior Court (1970) 8 CA3 591, 595; P v.
Camacho (2000) 23 C4 824. 9th CIR: US
v. Hammett (9C 2001) 236 F3 1054, 1057-58 ["The
exclusionary rule precludes law enforcement officers from using
'information' obtained in violation of the Fourth Amendment."].
[11] CAL: Pen. Code§ 1538.5(g).
[12] CAL: Pen. Code§ 1538.5(h).
[13] CAL: Pen. Code§ 1538.5(f).
[14] CAL: Pen. Code§ 1538.5(f)(2).
[15] CAL: Pen. Code§ 1538.5(f)(2).
[16] CAL: Pen. Code§ 1538.5(f)(3).
[17] CAL: In re Justin K. (2002)
98 CA4 695, 698.
[18] CAL: Pen. Code§ 1538.5(f).
[19] CAL: Pen. Code§ 1538.5(i).
[20] CAL: Pen. Code§ 1538.5(i).
[21] CAL: Pen. Code§ 1538.5(i).
[22] CAL: Pen. Code§ 1538.5(i).
[23] CAL: In re Justin K. (2002)
98 CA4 695, 698.
[24] CAL: Pen. Code§ 1538.5(i);
P v. Bennett (1998) 68 CA4 396 [it was error for the
trial court to grant the defendant a de novo motion
to suppress after the motion had been heard during the preliminary
hearing].
[25] CAL: Pen. Code§ 1538.5(i);
P v. Hansel (1992) 1 C4 1211.
[26] CAL: Pen. Code§ 1538.5(i);
P v. Drews (1989) 208 CA3 1317, 1324-27;
Anderson v. Superior Court (1988) 206 CA3 533, 538.
[27] CAL: P v.
Fulkman (1991) 235 CA3 555, 560; Anderson v.
Superior Court (1988) 206 CA3 533, 539; P v.
Lawler (1973) 9 C3 156, 160. NOTE: A search warrant
will not be presumed to be valid if the affidavit contained
information that was subsequently stricken because it was obtained
illegally. P v. Weiss (1999) 20 C4 1073, 1083.
[28] CAL: Pen. Code§ 1538.5(h).
[29] CAL: Pen. Code§ 1538.5(i).
NOTE: The failure of the defense to file its suppression
motion at least ten calendar days before the hearing, may be
deemed an admission that the motion is without merit. Cal Rules of
Court, rule 227.5.
[30] CAL: Pen. Code§ 1538.5(i).
[31] CAL: In re Justin K. (2002)
98 CA4 695, 698.
[32] CAL: P v.
Jackson (1992) 7 CA4 1367, 1370, fn.3; P v.
Pham (1987) 189 CA3 1531, 1534 [1538.5 procedure designed
to avoid litigating search and seizure issues during trial];
P v. Ramos (1997) 15 C4 1133, 1163; P v.
Superior Court (Edmonds) (1971) 4 C3 605, 609; P v.
Martinez (1975) 14 C3 533, 537.
[33] CAL: P v. Silveria (2020)
10 C5 195, 235; P v. Williams (1999) 20 C4 119, 123
["a defendant must state the grounds for the motion with
sufficient particularity to give notice to the prosecution of the
sort of evidence it will need to present in response"];
P v. Oldham (2000) 81 CA4 1, 11; P v.
Smith (2002) 95 CA4 283, 298-300; P v.
Hallman (1989) 215 CA3 1330, 1339-40; Pen. Code§
1538.5(a)(2).
[34] QUOTE FROM: P v.
Watkins (2009) 170 CA4 1403, 1410.
[35] QUOTE FROM:
P v Brown (2023) __ C5 __ [2023 WL 2638717].
[36] OTHER: US v. Friedman (7C
2020) 971 F3 700, 709-10.
[37] QUOTE FROM: P v.
Kane (1984) 150 CA3 523, 528, fn.7. CAL:
P v. Terrell (1999) 69 CA4 1246,1252 [a defense
attorney "has no duty to make his client happy by interposing
useless suppression motions."].
[38] CAL: P v.
Hernandez (1974) 43 CA3 581, 590 ["where a search is made
pursuant to a warrant, the burden of proving the invalidity of the
search rests upon the challenger"]; P v.
Hernandez (1974) 43 CA3 581, 590 ["where a search is made
pursuant to a warrant, the burden of proving the invalidity of the
search rests upon the challenger"]; P v.
Amador (2000) 24 C4 387, 393 ["when the police do obtain a
warrant, that warrant is presumed valid"]; P v.
Hobbs (1994) 7 C4 948, 969 ["a presumption of validity
attached to the warrant"]; P v. Luttenberger (1990)
50 C3 1, 21 ["the warrant affidavit is presumed truthful"];
P v. Ramirez (1988) 202 CA3 425, 428; Evid.
Code§ 664.
[39] QUOTE FROM: P v.
Williams (1999) 20 C4 119, 130. CAL: P v.
Smith (2002) 95 CA4 283, 294-95;
In re Arthur J. (1987) 193 CA3 781, 784; P v.
Hallman (1989) 215 CA3 1330, 1340;
In re Baraka H. (1992) 6 CA4 1039, 1043; P v.
Thompson (1990) 221 CA3 923, 936-37; Badillo
v. Superior Court (1956) 46 C2 269, 272;
P v. Williams (1988) 45 C3 1268, 1300; P v.
Barrett (1969) 2 CA3 142, 146 ["The defense makes out a
prima facie case of illegality by establishing that the arrest or
search was made without a warrant; the burden then rests upon the
prosecution to show justification."].
[40] USSC: US v.
Matlock (1974) 415 US 164, 178 ["the controlling burden of
proof at suppression hearings should impose no greater burden than
proof by a preponderance of the evidence"]. CAL: Evid. Code
§ 115; P v. Ramirez (1992) 6 CA4 1583, 1588;
P v. Bishop (1996) 44 CA4 220, 236 ["Once a
defendant shows the search was warrantless, the burden shifts to
the People to justify the search by establishing the search fell
within an exception to the warrant requirement."]; P v.
Camacho (2000) 23 C4 824, 830; P v.
Smith (2002) 95 CA4 283, 296; P v.
Jenkins (2000) 22 C4 900, 972; P v.
Dyke (1990) 224 CA3 648, 657; P v.
Hallman (1989) 215 CA3 1330, 1337, 1340; P v.
Manning (1973) 33 CA3 586, 600; P v.
Fein (1971) 4 C3 747, 752; P v. Taylor (1986)
178 CA3 217, 229; P v. James (19797) 19 C3 99, 106;
P v. Williams (1999) 20 C4 119, 127.
[41] CAL:
P v. Superior Court (Price) (1982) 137 CA3 90, 96 [proving
the existence of probable cause "is not limited to evidence that
would be admissible at the trial on the issue of guilt"].
[42] CAL: P v. Le (1985)
169 CA3 186, 193 ["Under the federal authorities, it is not
essential that the ... the search is being conducted on the basis
of a particular legal theory so long as the objective facts, when
fully determined, afford probable cause."]. 9th CIR:
Gallegos v. City of Los Angeles (9C 2002) 308
F# 987, 992 ["Whether or not Gallegos's detention was an arrest or
an investigatory stop depends on what the officer did, not
on how they characterize what they did."]. OTHER:
US v. Garcia (7C 2004) 376 F3 648, 651
["Police officers' diction does not affect the constitutional
inquiry."].
[43] CAL: P v.
Seminoff (2008) 159 CA4 518, 527-28.
[44] CAL: P v.
Dyke (1990) 224 CA3 648, 657.
[45] CAL:
In re Reginald C. (1985) 171 CA3 1072, 1078 ["Where the
only issue before the court is whether or not it should subject
society to the self-immolation of the exclusionary rule in order
to penalize, and thereby hopefully to educate, an offending
officer and inspire him to improve, it behooves every trial judge
to do his utmost to determine
exactly what it was the officer did. ¶ The high price our
citizens must pay whenever we in the judiciary blind ourselves to
the truth, should never be exacted merely because counsel have
failed to ask sufficient appropriate questions."].
[46] CAL: P v.
Superior Court (Arketa) (1970) 10 CA3 122, 126.
[47] CAL: P v.
Manning (1973) 33 CA3 586, 599-600; P v.
Fulkman (1991) 235 CA3 555, 561.
[48] USSC: Simmons
v. US (1968) 390 US 377, 390. CAL: P v.
Drews (1989) 208 CA3 1317, 1325 ["However, if a defendant's
testimony at a pretrial suppression hearing is inconsistent with
his testimony at trial, the People may use such pretrial testimony
for impeachment."].
[49] USSC:
Penn. Board of Probation and Parole v.
Scott (1998) 524 US 357. CAL:
P v. Lazlo (2012) 206 CA4 1063, 1070; P v.
Harrison (1988) 199 CA3 803.
[50] USSC: Kansas v.
Ventris (2009) 556 US 586, 590 [the Fourth Amendment "says
nothing about excluding [the fruits of a violation] from evidence
… Inadmissibility has not been automatic"]; US
v. Havens (1980) 446 US 620, 624-27;
US v. Leon (1984) 468 US 897, 910.
CAL: P v. Macias (1997) 16 C4 739, 755.
[51] CAL:
In re Richard G. (2009) 173 CA4 1252, 1261; P
v. Matthews (1994) 25 CA4 89, 96 [to suppress such
observations "would stretch the exclusionary rule beyond the
bounds of common sense and public policy. This result would be
immunity for a new crime"]. 9th CIR: US v.
Mitchell (9C 1987) 812 F2 1250, 1253 ["A person does not
have a license to kill a police officer merely because the officer
arrested him without probable cause."].
[52] CAL: P v. Landau (2013) 214
CA4 1, 11-12.
[53] CAL: Pen. Code§§
1538.5(a)(1)(B)(i), 1538.5(a)(1)(B)(iii).
[54] QUOTE FROM: Illinois v.
Gates (1983) 462 US 213, 236, 238-39. CAL:
P v. Hepner (1994) 21 CA4 761, 775; P v.
Glenos (1992) 7 CA4 1201, 1206; P v.
Tuadles (1992) 7 CA4 1777, 1783-84; P v.
McDaniels (1994) 21 CA4 1560, 1564; P v.
Cleland (1990) 225 CA3 388, 392. 9th CIR: US
v. Martinez (9C 1979) 588 F2 1227, 1234 ["In
general, the legality of a search warrant will depend upon the
sufficiency of what is found within the four corners of the
underlying affidavit. An affidavit is sufficient if it shows
probable cause"]. ALSO SEE: P v.
Frank (1985) 38 C3 711, 729 ["If the necessary facts are
not stated in the affidavit, it comes too late for the prosecution
to attempt to fill the gaps"].
[55] CAL: P v.
Jordan (1984) 155 CA3 769, 778.
[56] USSC: Illinois v.
Gates (1983) 462 US 213, 238, 241; Massachusetts v
Upton (1984) 466 US 727, 732; US v.
Ventresca (1965) 380 US 102, 108-9. CAL:
P v. McDaniels (1994) 21 CA4 1560, 1564.
NOTE: An affidavit is not defective on grounds it did not
contain all the information the officer had developed
in support of probable cause. P v. Lim (2000)
85 CA4 1289, 1297-98.
[57] QUOTE FROM: Illinois v.
Gates (1983) 462 US 213, 236; Massachusetts
v. Upton (1984) 466 US 727, 732-33; US
v. Leon (1984) 468 US 897, 914. CAL:
P v. Tuadles (1992) 7 CA4 1777, 1783; P v.
Glenos (1992) 7 CA4 1201, 1206; P v.
McDaniels (1994) 21 CA4 1560, 1564; P v.
Cleland (1990) 225 CA3 388, 392.
[58] CAL: P v.
Tuadles (1992) 7 CA4 1777, 1784.
[59] USSC: Illinois v.
Gates (1983) 462 US 213, 237, fn.10; US v.
Ventresca (1965) 380 US 102, 109. CAL: P v.
Tuadles (1992) 7 CA4 1777, 1784; P v.
Frank (1985) 38 C3 711, 722; P v.
Cleland (1990) 225 CA3 388, 392.
[60] CAL: P v.
Superior Court (Marcil) (1972) 27 CA3 404, 415 ["Even if it
be assumed that any one category is overbroad and lacking in the
requisite particularity, any thing properly seized as the result
of an authorized search for articles properly described may be
used in evidence."]. 9th CIR: US v.
SDI Future Health, Inc. (9C 2009) 568 F3 684, 707 ["In
general, we do not allow severance of partial suppression when the
valid portion of the warrant is a relatively insignificant part of
an otherwise invalid search."]; US v.
Gomez-Soto (9C 1984) 723 F2 649, 654 ["In this warrant,
Item 12 is only one of thirteen descriptions, twelve of which are
sufficiently particularized. It is practicable, therefore, for us
to severe Item 12 from the warrant and uphold the portion that
remains."]. OTHER: US v. Galpin (2C 2013) 720 F3
436, 448 ["When a warrant is severable, the portion of the warrant
that is constitutionally infirm—usually for lack of particularity
or probable cause—is separated from the remained and evidence
seized pursuant to that portion is suppressed; evidence seized
under the valid portion may be admitted."]; Cassady
v. Goering (10C 2009) 567 F3 628, 637 ["The rule in
this circuit in criminal cases is that the severability doctrine
is only applicable if the valid portions of the warrant are
sufficiently particularized, distinguishable from the invalid
portions, and make up the greater part of the warrant."].
[61] CAL: Aday v.
Superior Court (1961) 55 C2 789, 797 ["We recognize the
danger that warrants might be obtained which are essentially
general in character but as to minor items meet the requirement of
particularity, and that wholesale seizures might be made under
them, in the expectation that the seizure would in any event be
upheld as to the property specified. Such an abuse of the warrant
procedure, of course, could not be tolerated."]; Burrows
v. Superior Court (1974) 13 C3 238, 250 ["Assuming
arguendo that the warrant is severable, the direction to seize
'any file or documents' relating to the Millers is too broad to
comport with constitutional requirements."]. 9th CIR:
US v. Sears (9C 2005) 411 F3 1124, 1130 ["We
also take into account the relative size of the valid and invalid
portions of the warrant in determining whether severance is
appropriate."]; US v. Spilotro (9C 1986) 800
F2 959, 967 [the particularly-described evidence was "only a
relatively insignificant part of the sweeping search"]; US
v. Kow (9C 1995) 58 F3 423, 428 ["severance is not
available when the valid portion of the warrant is a relatively
insignificant part of an otherwise invalid search"]. OTHER:
US v. Galpin (2C 2013) 720 F3 436, 449 ["severance may be
inappropriate where, for instance, the sufficiently particularized
portion is only a relatively insignificant part of a sweeping
search"]; Cassady v. Goering (10C 2009) 567
F3 628, 641 ["Here, the invalid portions of the warrant are
sufficiently broad and invasive so as to contaminate the whole
warrant."]; US v. Sells (10C 2006) 463 F3
1148, 1158 ["Total suppression may still be required even where a
part of the warrant is valid (and distinguishable) if the invalid
portions so predominate the warrant that the warrant in essence
authorizes a general [search]."].
[62] USSC: Franks v.
Delaware (1978) 438 US 154. CAL: P v.
Luttenberger (1990) 50 C3 1, 9. OTHER:
US v. Daniels (7C 2018) 906 F3 673, 677 ["To secure a
Franks hearing, a defendant must put forth an offer
of proof that is more than conclusory and gestures toward more
than negligent mistakes. What is needed is direct evidence of the
affiant's state of mind or else circumstantial evidence of a
subjective intent to deceive."].
[63] USSC: Franks v.
Delaware (1978) 438 US 154, 171. CAL:
P v. Lee (2015) 242 CA4 161, 172 P v.
Estrada (2003) 105 CA4 783, 790 ["Because of the difficulty
of meeting the 'substantial preliminary showing' standard,
Franks hearings are rarely held."]; P v.
Brown (1989) 207 CA3 1541, 1547; P v. Duval
(1990) 221 CA3 1105, 1113 ["[Defendant's] offer of proof consisted
entirely of his testimony that the statement attributed to the
informant was false, and that 'no such [informant] exists.' These
self-serving conclusory statements constitute a general denial and
fall far short of meeting the
Franks requirement"]; P v. Wilson (1986) 182
CA3 742, 750 ["With specific reference to facially sufficient
warrants issued by neutral magistrates, it is a rare day indeed
when they can be successfully challenged. One who ventures upon
that effort better have his facts and figures, and they should be
compelling. A fishing expedition will not be entertained."].
OTHER: US v. McMurtrey (7C 2013) 704 F3 502, 509
["It is relatively difficult for a defendant to make the
"substantial preliminary showing" required under
Franks. Allegations of negligent or innocent mistakes do
not entitle a defendant to a hearing, nor do conclusory
allegations of deliberately or recklessly false information."].
NOTE:
Purpose of requirement of substantial preliminary showing:
This requirement was "intended in part to avoid misuse of the
evidentiary hearing for purposes of discovery. P v.
Luttenberger (1990) 50 C3 1, 17.
[64] NOTE: The fact that the search
warrant was successful in that officers found the evidence for
which the warrant was issued is a circumstance that tends to
indicate the information was accurate. P v.
Benjamin (1999) 77 CA4 264, 275 ["while probable cause for
a search cannot be supported by the results of the search, there
is no reason why the results of the search cannot support the
truthfulness of the statements made in a search warrant affidavit
by an affiant whose credibility is under attack"].
[65] OTHER: US v.
Blauvelt (4C 2011) 638 F3 281, 289 ["We have not applied
[the collective knowledge] doctrine to impute knowledge of facts
to an officer seeking a warrant merely because such facts are
accessible to the law enforcement community at large."].
[66] USSC: Franks v.
Delaware (1978) 438 US 154, 155-56, 170-2. CAL:
P v. Luttenberger (1990) 50 C3 1, 10;
P v. Sandoval (2015) 62 C4 394, 410 ["Sandoval was not
entitled to an evidentiary hearing because he made only conclusory
allegations that admittedly were based upon assumptions."];
P v. Lewis (2006) 39 C4 970, 989 ["Nor has Lewis
shown that the detective knew Mizell was lying or mistaken, even
assuming her statement to him was untrue."]; P v.
Lopez (1985) 173 CA3 125, 135 ["with the omissions added
back and the affidavit retested, sufficient information still
existed to support a finding of probable cause"]; P v.
Benjamin (1999) 77 CA4 264, 274 ["self-serving denials
alone—such as those in defendant's declaration—are routinely
discounted in determining whether a showing for a
Franks hearing had been made out"]. 9th CIR:
US v. Meek (9C 2004) 366 F3 705, 717 ["even
if the statement was recklessly made, the difference was not
material to a finding of probable cause"]; US v.
Craighead (9C 2008) 539 F3 1073, 1082 ["Craighead did not
point to one specific statement in the affidavit that was false or
misleading. Therefore, he did not meet his burden to demonstrate
cause for a Franks hearing."]; US v.
Napier (9C 2006) 436 F3 1133, 1136 [the defendant must make
"a substantial preliminary showing that the affiant 'knowingly and
intentionally, or with reckless disregard for the truth' inserted
a false statement in the warrant affidavit."]; US
v. Staves (9C 2004) 383 F3 977, 982 ["Because
the motion to suppress does not identify any false statement in
the wiretap affidavit, the district court properly denied a
Franks hearing."]. OTHER: US v.
Engler (8C 2008) 521 F3 965, 969 ["Such a showing is not
easily made. Engler must show that if the allegedly unsupported
content in the warrant affidavit is ignored, the remaining
contents of the affidavit would not be enough to establish
probable cause."].
[67] USSC: Franks v.
Delaware (1978) 438 US 154, 171; Maryland v.
Garrison (1987) 480 US 79, 85 ["The validity of the warrant
must be assessed on the basis of the information that the officers
disclosed, or had a duty to discover and to disclose, to the
issuing Magistrate."]. CAL: P v. Sandoval (2015) )
62 C4 394, 410 ["the material that he asserts was deliberately
omitted from the affidavit was not material; its absence did not
make the affidavit substantially misleading"]; P v.
Gibson (2001) 90 CA4 371, 381; P v.
Panah (2005) ) 35 C4 395, 473; P v.
Rochen (1988) 203 CA3 684, 689-90; P v.
Wilson (1986) 182 CA3 742, 747-48; P v.
Aston (1985) 39 C3 481, 497-98; P v.
Sousa (1993) 18 CA4 549, 562-63; P v.
Carpenter (1997) 15 C4 312, 363-65; P v.
Glance (1989) 209 CA3 836, 846-48. 9th CIR:
US v. Chavez-Miranda (9C 2002)
306 F3 973, 979 ["the movant must show that any omitted
information is material"]. OTHER: US v.
Croto (1C 2009) 570 F3 11, 15 ["the omitted information did
not minimize or alter the detailed facts seat out in the affidavit
that provided probable cause"]; US v.
Tate (4C 2008) 524 F3 449, 455. NOTE:
Immaterial omissions: The ruling in P v.
Kurland (1980) 28 C3 376, 390 that immaterial omissions
were actionable was abrogated by Proposition 8. See P v.
Madrid (1992) 7 CA4 1888, 1899.
[68] OTHER: US v. Daniels (7C
2018) 906 F3 673, 676] ["The role of a judge considering a
defendant's motion for a Franks hearing is to remove any
overt falsehood from the affidavit—or else incorporate any omitted
material facts that undermine probable cause, if an omission is
what rendered the affidavit misleading—and see if probable cause
remains."].
[69] USSC: Franks v.
Delaware (1978) 438 US 154, 156, 171-72. CAL:
P v. Torres (1992) 6 CA4 1324, 1334; P v.
Madrid (1992) 7 CA4 1888, 1899; P v.
Sandlin (1991) 230 CA3 1310, 1316.
[70] CAL: P v.
Weiss (1999) 20 C4 1073, 1083. OTHER: US
v. Rodriguez (8C 2005) 414 F3 827, 842 ["Rodriguez
does nothing more than point out minor descriptive inaccuracies—he
has made no showing of intent or recklessness on the part of [the
officer]."].
[71] USSC: Franks v.
Delaware (1978) 438 US 154, 169 ["There is, of course, a
presumption of validity with respect to the affidavit supporting
the search warrant."].
[72] OTHER: US v.
Stevens (8C 2008) 530 F3 714, 718; US
v. Neal (8C 2008) 528 F3 1069, 1072.
[73] USSC: Franks v.
Delaware (1978) 438 US 154, 156, 171-72. CAL:
P v. Scott (2011) 52 C4 452, 485 [including
the challenged information "would not have undermined the showing
of probable cause"]; P v. McKim (1989) 214 CA3 766,
772; P v. Gibson (2001) 90 CA4 371, 381.
OTHER: US v. Hancock (7C 2016) 844 F3 702, 708
[omitted information about CI's criminal history not material
based of strong independent evidence of his reliability];
US v. Glover (DCC 2012) 681 F3 411, 419 [failure to
disclose that the officers' decision to go to the defendant's home
[where they smelled PCP] was the result of wiretap information did
not constitute Franks error because the information "would
only have strengthened the case for probable cause"]; US
v. Spencer (DCC 2008) 530 F3 1003, 1008 ["Assuming
it were a fact, it was not material because it would not negate
probable cause."].
[74] USSC: Franks v.
Delaware (1978) 438 US 154, 171; McCray v.
Illinois (1967) 386 US 300, 307 ["the magistrate is
concerned, not with whether the informant lied, but with whether
the affiant is truthful in his recitation of what he was told,"
quoting State v. Burnett (N.J. 1964) 201 A2
39, 45]. OTHER: US v. Johnson (7C
2009) 580 F3 666, 671 ["there is no evidence that [the officer]
was aware of these inaccuracies"].
[75] USSC: Franks v.
Delaware (1978) 438 US 154, 156. 9th CIR:
US v. Perkins (9C 2017) 850 F3 1109, 1116. OTHER:
US v. Hansmeier (7C 2017) 867 F3 807, 813 ["Negligence is
not enough to justify suppressing evidence. Moreover, a
Franks violation based on an omission requires a showing
that the material information was omitted deliberately or
recklessly to mislead the issuing magistrate."]; US
v. Stevens (8C 2008) 530 F3 714, 718
["Inaccurate statements that result from negligence or innocent
mistake are insufficient"]; US v. Neal (8C
2008) 528 F3 1069, 1073 ["there is no evidence that the officers
involved in the investigation acted intentionally, deliberately,
or with reckless disregard for the truth"]; US v.
Johnson (7C 2009) 580 F3 666, 671 [failure to corroborate
informant's tip was not reckless because the informant was
reliable].