Chapter 6 Search and Seizure Motions

• Jurisdiction: United States

Chapter 6 Search and Seizure Motions

The Fourth Amendment of the U.S. Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This principle originally stood for the concept that "each man's home is his castle" protected from unreasonable intrusion by the government. It gives rise to the "right of privacy" interpreted as existing under the Constitution.

1538.5 Motion and Wilder Motion

California Penal Code Section §1538.5 authorizes a defendant to make a motion for suppression of tangible or intangible evidence that is the product of an illegal search and seizure, and to make a motion for return of property that has been illegally seized. In a misdemeanor case, the attorney generally makes this motion prior to trial or when the defense becomes aware of the grounds for such a motion. In a felony case, the attorney generally makes this motion at preliminary hearing if proper notice has been given or prior to trial.

Proper procedure is important for handling such a motion. This motion must be written, must state items to be suppressed, must state reasons for suppression, and must be served properly. If the police obtained evidence based on a warrantless search, and this is the only basis for the defense motion, then the defense need only specify that the search was warrantless and make a prima facie showing to support that assertion in the motion. The defense does not need to state more details in the motion for objecting to the search. Wilder v. Superior Court (1979) 92 Cal.App.3d 90; People v. Williams (1999) 20 Cal.4th 119.

At the hearing, the initial burden lies with the defense to prove the defendant had an expectation of privacy in the area that was searched and must show the search violated an existing search warrant or was the product of a warrantless search. If defense establishes both, the burden shifts to prosecution to present evidence that the search was valid. The standard of proof needed to prevail is preponderance of evidence.

Motion to Quash a Search Warrant

A Motion to Quash a search warrant is based on an insufficient showing of probable cause, within the affidavit section of the search warrant, to support the magistrate's signing of the warrant...