Suppressing evidence in a criminal case in California

Suppressing evidence in a criminal case in California is the topic of this blog post.

Suppressing evidence in a criminal case in California requires that you file a motion under Penal Code section 1538.5 requesting that the court suppress certain evidence.

I want to stress that any motion filed under Penal Code section 1538.5 can only be used to request the suppression of evidence that has been obtained as a result of a purportedly illegal search or seizure, in other words there must have been a violation of the Fourth Amendment.   A motion to suppress evidence may be used to challenge searches that were conducted either with or without a search warrant.

Penal Code § 1538.5(a)(1)(A) states in pertinent part that, “On motion, the court shall suppress evidence the People obtained as a result of a search or seizure on the grounds that the search or seizure without a warrant was unreasonable.

A motion to suppress evidence is an extremely powerful motion if used in the right situations.  This is due to the fact that the prosecution may not have a solid case against a defendant if evidence is excluded. If the court grant the motion and suppresses the evidence, the prosecutor's case against the moving defendant may lack any substantial evidence and if the court grants the motion this may convince the prosecution to either dismiss the charges, or negotiate a plea bargain with a much lighter sentence than what a defendant was formerly facing.

Any motion to suppress evidence must be in writing and include a memorandum of points and authorities that lists the specific items of property or evidence sought to be suppressed and the factual basis and legal authorities in support of the motion. See Penal Code §1538.5(a)(2).

Including a declaration containing competent evidence is essential because the moving defendant has the initial burden of showing that a search or seizure was without a warrant and that it was unreasonable under the circumstances.  You can meet this burden by showing that the police performed a warrantless seizure.

It is settled law in California that the burden of proving that a warrantless search was justified lies with the prosecution.

If a misdemeanor case the motion to suppress must be filed and heard before trial. See Penal Code § Section 1538.5(g). However you can request a continuance of up to 30 days in misdemeanor cases to prepare for the hearing on the motion.  See Penal Code § 1538.5(l).

If you were not aware of the grounds for the motion to suppress evidence until the case is already in trial, the motion may be made and heard during trial. See Penal Code § 1538.5(h).

In felony matters, the motion may be made either at the preliminary hearing or later, upon filing of the information.  See Penal Code §§ Section 1538.5(f)(1) and 1538.5(f)(2) for more details.

Attorneys or parties in California who would like to view a portion of a sample motion to suppress evidence from a warrantless search in California containing a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

Sample Motion to Suppress Evidence for California under Penal Code section 1538.5 by Stan Burman on Scribd


The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.