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California Penal Code Section 1538.5

Legal Research Home > California Laws > Penal Code > California Penal Code Section 1538.5

1538.5.  (a) (1) A defendant may move for the return of property or
to suppress as evidence any tangible or intangible thing obtained as
a result of a search or seizure on either of the following grounds:
   (A) The search or seizure without a warrant was unreasonable.
   (B) The search or seizure with a warrant was unreasonable because
any of the following apply:
   (i) The warrant is insufficient on its face.
   (ii) The property or evidence obtained is not that described in
the warrant.
   (iii) There was not probable cause for the issuance of the
warrant.
   (iv) The method of execution of the warrant violated federal or
state constitutional standards.
   (v) There was any other violation of federal or state
constitutional standards.
   (2) A motion pursuant to paragraph (1) 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.
   (b) When consistent with the procedures set forth in this section
and subject to the provisions of Sections 170 to 170.6, inclusive, of
the Code of Civil Procedure, the motion should first be heard by the
magistrate who issued the search warrant if there is a warrant.
   (c) (1) Whenever a search or seizure motion is made in the
superior court as provided in this section, the judge or magistrate
shall receive evidence on any issue of fact necessary to determine
the motion.
   (2) While a witness is under examination during a hearing pursuant
to a search or seizure motion, the judge or magistrate shall, upon
motion of either party, do any of the following:
   (A) Exclude all potential and actual witnesses who have not been
examined.
   (B) Order the witnesses not to converse with each other until they
are all examined.
   (C) Order, where feasible, that the witnesses be kept separated
from each other until they are all examined.
   (D) Hold a hearing, on the record, to determine if the person
sought to be excluded is, in fact, a person excludable under this
section.
   (3) Either party may challenge the exclusion of any person under
paragraph (2).
   (4) Paragraph (2) does not apply to the investigating officer or
the investigator for the defendant, nor does it apply to officers
having custody of persons brought before the court.
   (d) If a search or seizure motion is granted pursuant to the
proceedings authorized by this section, the property or evidence
shall not be admissible against the movant at any trial or other
hearing unless further proceedings authorized by this section,
Section 871.5, 1238, or 1466 are utilized by the people.
   (e) If a search or seizure motion is granted at a trial, the
property shall be returned upon order of the court unless it is
otherwise subject to lawful detention. If the motion is granted at a
special hearing, the property shall be returned upon order of the
court only if, after the conclusion of any further proceedings
authorized by this section, Section 1238 or 1466, the property is not
subject to lawful detention or if the time for initiating the
proceedings has expired, whichever occurs last. If the motion is
granted at a preliminary hearing, the property shall be returned upon
order of the court after 10 days unless the property is otherwise
subject to lawful detention or unless, within that time, further
proceedings authorized by this section, Section 871.5 or 1238 are
utilized; if they are utilized, the property shall be returned only
if, after the conclusion of the proceedings, the property is no
longer subject to lawful detention.
   (f) (1) If the property or evidence relates to a felony offense
initiated by a complaint, the motion shall be made only upon filing
of an information, except that the defendant may make the motion at
the preliminary hearing, but the motion shall be restricted to
evidence sought to be introduced by the people at the preliminary
hearing.
   (2) 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 paragraph (2) of subdivision (a). 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.
   (3) Any written response by the people to the motion described in
paragraph (2) shall be filed with the court and personally served on
the defendant or his or her attorney of record at least two court
days prior to the hearing at which the motion is to be made.
   (g) If the property or evidence relates to a misdemeanor
complaint, the motion shall be made before trial and heard prior to
trial at a special hearing relating to the validity of the search or
seizure. If the property or evidence relates to a misdemeanor filed
together with a felony, the procedure provided for a felony in this
section and Sections 1238 and 1539 shall be applicable.
   (h) If, prior to the trial of a felony or misdemeanor, opportunity
for this motion did not exist or the defendant was not aware of the
grounds for the motion, the defendant shall have the right to make
this motion during the course of trial.
   (i) If the property or evidence obtained relates to a felony
offense initiated by complaint and the defendant was held to answer
at the preliminary hearing, or if the property or evidence relates to
a felony offense initiated by indictment, the defendant shall have
the right to renew or make the motion at a special hearing relating
to the validity of the search or seizure which shall be heard prior
to trial and at least 10 court days after notice to the people,
unless the people are willing to waive a portion of this time. Any
written response by the people to the motion shall be filed with the
court and personally served on the defendant or his or her attorney
of record at least two court days prior to the hearing, unless the
defendant is willing to waive a portion of this time. If the offense
was initiated by indictment or if the offense was initiated by
complaint and no motion was made at the preliminary hearing, the
defendant shall have the right to fully litigate the validity of a
search or seizure on the basis of the evidence presented at a special
hearing. If the motion was made at the preliminary hearing, unless
otherwise agreed to by all parties, evidence presented at the special
hearing shall be limited to the transcript of the preliminary
hearing and to evidence that could not reasonably have been presented
at the preliminary hearing, except that the people may recall
witnesses who testified at the preliminary hearing. If the people
object to the presentation of evidence at the special hearing on the
grounds that the evidence could reasonably have been presented at the
preliminary hearing, the defendant shall be entitled to an in camera
hearing to determine that issue. The court shall base its ruling on
all evidence presented at the special hearing and on the transcript
of the preliminary hearing, and the findings of the magistrate shall
be binding on the court as to evidence or property not affected by
evidence presented at the special hearing. After the special hearing
is held, any review thereafter desired by the defendant prior to
trial shall be by means of an extraordinary writ of mandate or
prohibition filed within 30 days after the denial of his or her
motion at the special hearing.
   (j) If the property or evidence relates to a felony offense
initiated by complaint and the defendant's motion for the return of
the property or suppression of the evidence at the preliminary
hearing is granted, and if the defendant is not held to answer at the
preliminary hearing, the people may file a new complaint or seek an
indictment after the preliminary hearing, and the ruling at the prior
hearing shall not be binding in any subsequent proceeding, except as
limited by subdivision (p). In the alternative, the people may move
to reinstate the complaint, or those parts of the complaint for which
the defendant was not held to answer, pursuant to Section 871.5. If
the property or evidence relates to a felony offense initiated by
complaint and the defendant's motion for the return or suppression of
the property or evidence at the preliminary hearing is granted, and
if the defendant is held to answer at the preliminary hearing, the
ruling at the preliminary hearing shall be binding upon the people
unless, upon notice to the defendant and the court in which the
preliminary hearing was held and upon the filing of an information,
the people, within 15 days after the preliminary hearing, request a
special hearing, in which case the validity of the search or seizure
shall be relitigated de novo on the basis of the evidence presented
at the special hearing, and the defendant shall be entitled, as a
matter of right, to a continuance of the special hearing for a period
of time up to 30 days. The people may not request relitigation of
the motion at a special hearing if the defendant's motion has been
granted twice. If the defendant's motion is granted at a special
hearing, the people, if they have additional evidence relating to the
motion and not presented at the special hearing, shall have the
right to show good cause at the trial why the evidence was not
presented at the special hearing and why the prior ruling at the
special hearing should not be binding, or the people may seek
appellate review as provided in subdivision (o), unless the court,
prior to the time the review is sought, has dismissed the case
pursuant to Section 1385. If the case has been dismissed pursuant to
Section 1385, either on the court's own motion or the motion of the
people after the special hearing, the people may file a new complaint
or seek an indictment after the special hearing, and the ruling at
the special hearing shall not be binding in any subsequent
proceeding, except as limited by subdivision (p). If the property or
evidence seized relates solely to a misdemeanor complaint, and the
defendant made a motion for the return of property or the suppression
of evidence in the superior court prior to trial, both the people
and defendant shall have the right to appeal any decision of that
court relating to that motion to the appellate division, in
accordance with the California Rules of Court provisions governing
appeals to the appellate division in criminal cases. If the people
prosecute review by appeal or writ to decision, or any review
thereof, in a felony or misdemeanor case, it shall be binding upon
them.
   (k) If the defendant's motion to return property or suppress
evidence is granted and the case is dismissed pursuant to Section
1385, or the people appeal in a misdemeanor case pursuant to
subdivision (j), the defendant shall be released pursuant to Section
1318 if he or she is in custody and not returned to custody unless
the proceedings are resumed in the trial court and he or she is
lawfully ordered by the court to be returned to custody.
   If the defendant's motion to return property or suppress evidence
is granted and the people file a petition for writ of mandate or
prohibition pursuant to subdivision (o) or a notice of intention to
file a petition, the defendant shall be released pursuant to Section
1318, unless (1) he or she is charged with a capital offense in a
case where the proof is evident and the presumption great, or (2) he
or she is charged with a noncapital offense defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1, and the court
orders that the defendant be discharged from actual custody upon
bail.
   (l) If the defendant's motion to return property or suppress
evidence is granted, the trial of a criminal case shall be stayed to
a specified date pending the termination in the appellate courts of
this state of the proceedings provided for in this section, Section
871.5, 1238, or 1466 and, except upon stipulation of the parties,
pending the time for the initiation of these proceedings. Upon the
termination of these proceedings, the defendant shall be brought to
trial as provided by Section 1382, and, subject to the provisions of
Section 1382, whenever the people have sought and been denied
appellate review pursuant to subdivision (o), the defendant shall be
entitled to have the action dismissed if he or she is not brought to
trial within 30 days of the date of the order that is the last denial
of the petition. Nothing contained in this subdivision shall
prohibit a court, at the same time as it rules upon the search and
seizure motion, from dismissing a case pursuant to Section 1385 when
the dismissal is upon the court's own motion and is based upon an
order at the special hearing granting the defendant's motion to
return property or suppress evidence. In a misdemeanor case, the
defendant shall be entitled to a continuance of up to 30 days if he
or she intends to file a motion to return property or suppress
evidence and needs this time to prepare for the special hearing on
the motion. In case of an appeal by the defendant in a misdemeanor
case from the denial of the motion, he or she shall be entitled to
bail as a matter of right, and, in the discretion of the trial or
appellate court, may be released on his or her own recognizance
pursuant to Section 1318. In the case of an appeal by the defendant
in a misdemeanor case from the denial of the motion, the trial court
may, in its discretion, order or deny a stay of further proceedings
pending disposition of the appeal.
   (m) The proceedings provided for in this section, and Sections
871.5, 995, 1238, and 1466 shall constitute the sole and exclusive
remedies prior to conviction to test the unreasonableness of a search
or seizure where the person making the motion for the return of
property or the suppression of evidence is a defendant in a criminal
case and the property or thing has been offered or will be offered as
evidence against him or her. A defendant may seek further review of
the validity of a search or seizure on appeal from a conviction in a
criminal case notwithstanding the fact that the judgment of
conviction is predicated upon a plea of guilty. Review on appeal may
be obtained by the defendant provided that at some stage of the
proceedings prior to conviction he or she has moved for the return of
property or the suppression of the evidence.
   (n) This section establishes only the procedure for suppression of
evidence and return of property, and does not establish or alter any
substantive ground for suppression of evidence or return of
property. Nothing contained in this section shall prohibit a person
from making a motion, otherwise permitted by law, to return property,
brought on the ground that the property obtained is protected by the
free speech and press provisions of the United States and California
Constitutions. Nothing in this section shall be construed as
altering (1) the law of standing to raise the issue of an
unreasonable search or seizure; (2) the law relating to the status of
the person conducting the search or seizure; (3) the law relating to
the burden of proof regarding the search or seizure; (4) the law
relating to the reasonableness of a search or seizure regardless of
any warrant that may have been utilized; or (5) the procedure and law
relating to a motion made pursuant to Section 871.5 or 995, or the
procedures that may be initiated after the granting or denial of a
motion.
   (o) Within 30 days after a defendant's motion is granted at a
special hearing in a felony case, the people may file a petition for
writ of mandate or prohibition in the court of appeal, seeking
appellate review of the ruling regarding the search or seizure
motion. If the trial of a criminal case is set for a date that is
less than 30 days from the granting of a defendant's motion at a
special hearing in a felony case, the people, if they have not filed
a petition and wish to preserve their right to file a petition, shall
file in the superior court on or before the trial date or within 10
days after the special hearing, whichever occurs last, a notice of
intention to file a petition and shall serve a copy of the notice
upon the defendant.
   (p) If a defendant's motion to return property or suppress
evidence in a felony matter has been granted twice, the people may
not file a new complaint or seek an indictment in order to relitigate
the motion or relitigate the matter de novo at a special hearing as
otherwise provided by subdivision (j), unless the people discover
additional evidence relating to the motion that was not reasonably
discoverable at the time of the second suppression hearing.
Relitigation of the motion shall be heard by the same judge who
granted the motion at the first hearing if the judge is available.
   (q) The amendments to this section enacted in the 1997 portion of
the 1997-98 Regular Session of the Legislature shall apply to all
criminal proceedings conducted on or after January 1, 1998.


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Last modified: March 17, 2014