Chapter 5 - §5. Procedure for excluding evidence

• Jurisdiction: United States

§5. Procedure for excluding evidence

§5.1. Motion to suppress. A challenge to the admission of evidence gained as a result of a Fourth Amendment violation should be made by a motion to suppress. See Pen. C. §1538.5(a); People v. Williams (1999) 20 Cal.4th 119, 127. A motion to suppress under Pen. C. §1538.5 provides a criminal defendant the "sole and exclusive" means before trial to suppress evidence obtained as a result of a search or seizure. People v. Fayed (2020) 9 Cal.5th 147, 182. A failure to raise an issue through a timely motion to suppress will result in waiver of the issue. See Evid. C. §353; U.S. v. Murillo (9th Cir.2002) 288 F.3d 1126, 1135; People v. Evans (2d Dist.1973) 34 Cal.App.3d 175, 181; cf. People v. Raley (1992) 2 Cal.4th 870, 892 (rejecting constitutional argument on appeal because no objection to hearsay evidence raised at trial). Under California law, Pen. C. §1538.5 provides the "comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial." People v. Brooks (1980) 26 Cal.3d 471, 475; see Pen. C. §1538.5. Under that statute, a motion to suppress must meet several requirements.

1. Form requirements. A motion to suppress must be in writing and be accompanied by a supporting memorandum and proof of service. Pen. C. §1538.5(a)(2).

2. Supporting memorandum. The supporting memorandum must state the grounds requiring the evidence be suppressed. Pen. C. §1538.5(a)(2); Brooks, 26 Cal.3d at 480; see People v. Silveria (2020) 10 Cal.5th 195, 235 (D must specify specific basis); Williams, 20 Cal.4th at 135 (D must specify precise grounds). While the defense must state the legal and factual bases for the motion, this does not require a particularly detailed showing. See Williams, 20 Cal.4th at 135-36 (D satisfied requirement by making prima facie showing that police acted without warrant). It does require raising all potential bases, however, to prevent a finding of waiver on those issues. See id. at 130 (when D seeks to raise specific argument other than lack of warrant for why warrantless search or seizure was unreasonable, D must specify argument in pleadings); see, e.g., Davis v. Appellate Div. of Superior Ct. (2d Dist.2018) 23 Cal.App.5th 387, 390-91 (motion was insufficiently specific to provide prosecution with notice and basis for suppression); People v. Bush (3d Dist.2001) 88 Cal.App.4th 1048, 1052 n.3 (when D only objected to dispatch information on staleness, argument that original source of information had not been established was waived); People v. Oldham (4th Dist.2000) 81 Cal.App.4th 1, 14-15 (when D only raised issue of father's consent to search D's room, argument that consent did not cover search of specific items found in bedroom was waived). The memorandum must also list all property or evidence sought to be suppressed. Pen. C. §1538.5(a)(2).

3. Standing requirements. A motion to suppress must be made by a party with standing to challenge the evidence. See U.S. v. Leon (1984) 468 U.S. 897, 910. A defendant will have standing to object if he can show that he had a reasonable expectation of privacy in the thing or place searched or if he can establish that the government physically intruded on a constitutionally protected area. See Byrd v. U.S. (2018) ___ U.S. ___, 138 S.Ct. 1518, 1526 (reasonable expectation of privacy); Florida v. Jardines (2013) 569 U.S. 1, 5 (constitutionally protected area); U.S. v. Jones (2012) 565 U.S. 400, 404-07 (same); Minnesota v. Carter (1998) 525 U.S. 83, 88 (reasonable expectation of privacy); Rakas v. Illinois (1978) 439 U.S. 128, 134, 143 (same); Caskey, Expert Series: California Search and Seizure §2:13 (2021 ed.) (recognizing both standing requirements); see also Rawlings v. Kentucky (1980) 448 U.S. 98, 106 (suggesting that standing and whether search occurred should be merged into one inquiry); People v. Ayala (2000) 23 Cal.4th 225, 254 n.3 (noting that U.S. Supreme Court has largely abandoned term "standing" while retaining standing analysis, and suggesting that courts should refrain from using term in future). See "Constitutionally protected area," ch. 5-A, §2.1.1(1)(a); "Reasonable expectation of privacy" ch. 5-A, §2.1.1(1)(b). Standing must be personal to the defendant, as Fourth Amendment rights are personal rights that cannot be asserted vicariously. Rakas, 439 U.S. at 133.

Note

While the issue of standing is essentially a question of whether the defendant had a legitimate expectation of privacy in the thing searched or seized or whether the thing fell within one's constitutionally protected area, courts have not wholly embraced the shift away from use of the term "standing," As a result, practitioners seeking standing may want to rely on cases that specifically address the issue.

(1) Standing under reasonable-expectation-of-privacy standard. When determining whether a defendant has standing under the reasonable-expectation-of-privacy standard, courts have considered various factors, including any claims of ownership, whether the defendant has a property or possessory interest in the thing seized or place searched, whether the defendant has a right to exclude others from that place, whether the defendant has exhibited a subjective expectation of privacy, whether the defendant took normal precautions to maintain privacy, and whether the defendant was legitimately on the premises. People v. McPeters (1992) 2 Cal.4th 1148, 1172; see Byrd, ___ U.S. at ___, 138 S.Ct. at 1527. The following are some examples of how standing has been addressed under this standard.

(a) Homes & businesses. Whether a defendant has standing to challenge a search or seizure involving a home or business will generally depend on the level of ownership, control, or possession that the defendant maintains over the area. See Rakas, 439 U.S. at 143 n.12. For example, when a defendant was authorized to stay at another's residence for several days, had unencumbered access, spent the night, and had joint control and supervision over all the areas, the defendant had standing to challenge the search of the residence. People v. Henderson (4th Dist.1990) 220 Cal.App.3d 1632, 1641-42. But see Carter, 525 U.S. at 91 (no standing when Ds were not overnight guests, were present for commercial transaction, were present for short time, and had no previous connection to resident); People v. Cowan (6th Dist.1994) 31 Cal.App.4th 795, 800-01 (no standing when evidence showed only that D was someone who had visited in past and was allowed to use apartment when he visited). Whether a guest will have standing to challenge the search of another's residence will depend on several factors, including the area searched and the level of control exercised by the guest. See, e.g., People v. Welch (1999) 20 Cal.4th 701, 747-48 (guest did not have standing to object to search of backyard when host consented and D was not joint occupant), overruled on other grounds, People v. Blakeley (2000) 23 Cal.4th 82; People v. Hamilton (5th Dist.1985) 168 Cal.App.3d 1058, 1065 (D, who was overnight guest, had standing to challenge search of bedroom when he was sole occupant of room, it appeared D had slept there, no evidence was discovered anywhere else in apartment, and D was present for entire search); cf. People v. Hernandez (3d Dist.1988) 199 Cal.App.3d 1182, 1189-90 & n.4 (when D had resided in bedroom for three days and claimed residence there, no standing to challenge search of other...