Barajas v. Appellate Division

Filed 10/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ELISEO BARAJAS, B295310
Petitioner, (Los Angeles County
Super. Ct. No. 7DN07158)
v.
(Appellate Division
APPELLATE DIVISION OF No. BR053647)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Sanjay T.
Kumar, Patti Jo McKay and Tony L. Richardson, Judges.
Petition denied.
Ricardo D. Garcia, Public Defender, Albert J. Menaster,
Aubrey Cunningham and Nick Stewart-Oaten, Deputy Public
Defenders, for Petitioner.
No appearance for Respondent.
Jackie Lacey, District Attorney, Phyllis C. Asayama and
Matthew Brown, Deputy District Attorneys, for Real Party in
Interest.
____________________________
At his arraignment for a misdemeanor charge of carrying a
dirk or dagger, Eliseo Barajas moved to dismiss the case for lack
of probable cause pursuant to Penal Code section 991.1 Barajas
argued that because the circumstances surrounding his initial
detention could not give rise to a reasonable suspicion that
criminal conduct had occurred and because his contact with the
arresting officer was not consensual, the evidence establishing
probable cause was illegally obtained and should be excluded
from the probable cause determination and the misdemeanor
complaint dismissed. The trial court continued the hearing to
allow the People to oppose Barajas’s motion to dismiss. (See
§ 991, subd. (b).) Based on the complaint and evidence filed in
support of the People’s opposition to the section 991 motion, the
trial court determined that Barajas was unlawfully detained and
excluded all evidence obtained after the detention. The trial
court granted Barajas’s motion to dismiss.
In a published opinion reversing the trial court’s order and
overruling People v. Ward (1986) 188 Cal. App. Supp. 3d 11
(Ward), the Superior Court Appellate Division held that
suppression of illegally obtained evidence cannot be litigated on a
motion to dismiss under section 991. (People v. Barajas (2018) 30
Cal.App.5th Supp. 1.)
Barajas contends here that the Fourth Amendment
demands a mechanical application of the exclusionary rule at a
___________________________________________________________
1 Statutory references are to the Penal Code unless
otherwise specified.
2
probable cause hearing under section 991 in the event the
magistrate determines evidence was obtained via an unlawful
detention. As we explain, this argument conflates several
unrelated principles, and in doing so blurs the lines between
various objectives trial courts must discharge as well as the
procedures trial courts are required to use to achieve those
objectives. As we explain, a Fourth Amendment violation may
lead to an exclusionary rule analysis, but there is no guarantee
evidence will be excluded. More fundamentally, those principles
are wholly unrelated to section 991, the evidence a trial court
may (and must) consider at a section 991 hearing, and the finding
a trial court must make on a section 991 determination.
We agree with the Appellate Division that suppression of
illegally obtained evidence cannot be litigated on a motion to
dismiss under section 991. Accordingly, we deny Barajas’s writ
petition.
BACKGROUND
A. Factual Background
At around 2:25 a.m. on September 20, 2017, Downey Police
Officer Honrath saw Barajas standing near a closed business.
Honrath stopped his car about 15 to 20 feet away from Barajas,
shined a spotlight on Barajas, and asked him “something along
the lines of, ‘where are you from’?” Honrath began “slowly and
casually” approaching Barajas, and walked to a point 6 to 8 feet
away from him.
Honrath asked Barajas if he was on parole or probation;
Barajas responded that he was on probation. As Barajas
answered, he put his hand in his sweatshirt pocket. Honrath
instructed Barajas to keep his hands out of his pocket. Barajas
volunteered that he “ha[d] his blade open,” and Honrath
3
instructed Barajas to “have a seat” and keep his hands where
Honrath could see them.
Honrath instructed Barajas to remove the knife from his
sweatshirt and set it away from himself. Shortly thereafter,
Honrath arrested Barajas.
At no point during the contact did Barajas turn away, walk
away, or refuse to speak to Honrath.
B. Procedural Background
1. Trial Court Proceedings
On September 22, 2017, the district attorney filed a
misdemeanor complaint charging Barajas with carrying a
concealed dirk or dagger in violation of section 21310. Barajas
was arraigned the same day.
At his arraignment, Barajas moved to dismiss the
complaint for lack of probable cause under section 991. Barajas
argued that his contact with Honrath was a detention and was
not consensual. He contended the circumstances under which the
contact was made were not sufficient to give Honrath a
reasonable suspicion that a crime had been committed and that
any evidence of a crime, therefore, was illegally obtained. Absent
the illegally obtained evidence, Barajas argued that there was no
“probable cause to believe that a public offense ha[d] been
committed and that [Barajas was] guilty thereof.” (§ 991, subd.
(a).)
The district attorney’s office responded that section 991
requires only that the trial court find that there is probable cause
that the offense was committed, and does not “capture probable
cause as to the detention or as to the arrest itself.” The People
also argued that Barajas’s motion was a section 1538.5 motion
“disguised as a 991 motion.”
4
The trial court disagreed with the district attorney’s
argument, but found good cause to continue the hearing to
September 26, 2017 to allow the district attorney to supplement
the record upon which the trial court would decide the section
991 motion.2 The People filed a written opposition to the section
991 motion and attached as exhibits the police report detailing
the arrest, a supplemental report from Honrath detailing and
contextualizing his contact with Barajas, and a transcript of the
audio recording of the contact from Honrath’s body camera.
On September 26, the trial court heard argument regarding
the detention and arrest leading to Barajas’s misdemeanor
complaint. Upon the conclusion of the argument, the trial court
found that there was a detention and that it was nonconsensual.
On that basis, the trial court granted Barajas’s section 991
motion and dismissed the misdemeanor complaint.
2. Appellate Division Proceedings
The People filed a timely notice of appeal to the Appellate
Division of the Los Angeles Superior Court pursuant to California
Rules of Court, rule 8.852. The Appellate Division’s July 30, 2018
opinion reversed the trial court’s order dismissing Barajas’s
misdemeanor complaint. In its opinion, which it certified for
publication, the Appellate Division expressly overruled Ward,
which held that the trial court was “allowed . . . to determine the
lawfulness of the custodial detention of a misdemeanant based
upon the reading and consideration of an arrest report attached
___________________________________________________________
2 At the September 26, 2017 hearing, the trial court cited
Ward, supra, 188 Cal. App. Supp. 3d 11, as its authority to
determine the lawfulness of Barajas’s detention and arrest as the
foundation to apply the exclusionary rule and dismiss the
misdemeanor complaint.
5
to the complaint . . . .” (Ward, supra, 188 Cal.App.3d Supp. at p.
16.) In overruling Ward, the Appellate Division determined that
the trial court may not determine Fourth Amendment
exclusionary rule questions in the context of a section 991 motion.
3. Subsequent Procedural Background
On our own motion, we ordered jurisdiction of the matter
transferred to this court. (Cal. Rules of Court, rule 8.1002(3).)
We heard argument in the matter (No. B291635) on November
13, 2018. We issued an order on December 11, 2018 vacating our
transfer order and returning the matter to the Appellate
Division. On December 20, Barajas petitioned the Supreme
Court for review of our order vacating transfer. The Supreme
Court returned the petition for review unfiled.
On January 10, 2019, Barajas filed this petition for writ of
mandate in the Supreme Court (No. S253470). By order of
January 30, 2019, the Supreme Court transferred the matter to
us. We summarily denied the petition on February 14, 2019.
Barajas petitioned the Supreme Court to review our order
denying his writ petition on February 25, 2019 (No. S254238).
On May 15, 2019, the Supreme Court granted review and
transferred the matter to us “with directions to vacate [our] order
denying mandate and to issue an order directing the respondent
superior court’s appellate division to show cause why the relief
sought in the petition should not be granted.” We complied on
May 23, 2019.
DISCUSSION
A. Jurisdiction
The People contend that Barajas’s petition for writ of
mandate is an inappropriate procedural vehicle by which to
obtain review of the Appellate Division’s judgment. The People’s
6
statement of the question is: “In what circumstances, and on
what grounds, may a higher court review a decision of the
Appellate Division of the Superior Court via petition for an
extraordinary writ, particularly when the Court of Appeal has
denied transfer?”
We did not deny transfer in this case. We transferred the
case on our own motion, and later vacated that transfer. We then
denied Barajas’s petition for writ of mandate on the same
grounds. That is the order Barajas asked the Supreme Court to
review. “The Supreme Court may order review . . . [¶] . . . [¶] [f]or
the purpose of transferring the matter to the Court of Appeal for
such proceedings as the Supreme Court may order.” (Cal. Rules
of Court, rule 8.500(b)(4).) The matter is properly before us on
the Supreme Court’s order.
B. Section 991, the Fourth Amendment, and the
Exclusionary Rule
Barajas contends that the Appellate Division erred when it
concluded that at a hearing on a section 991 motion a
misdemeanor defendant may not challenge evidence obtained in a
search that violates the Fourth Amendment.3
1. Standard of Review
“[Q]uestions of law and statutory interpretation are
reviewed de novo.” (People v. McGowan (2015) 242 Cal. App. 4th
377, 380.)
___________________________________________________________
3 Based on our agreement with the Appellate Division’s
conclusions, we assume without deciding that Officer Honrath
unlawfully detained Barajas. Because that question was not
appropriately decided on Barajas’s section 991 motion, the
question remains for the trial court to answer in the first instance
on a properly noticed motion under section 1538.5.
7
2. The Fourth Amendment and the Exclusionary
Rule
“The Fourth Amendment protects the ‘right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.’ The Amendment says
nothing about suppressing evidence obtained in violation of this
command. That rule—the exclusionary rule—is a ‘prudential’
doctrine, [citation], created by [the United States Supreme Court]
to ‘compel respect for the constitutional guaranty.’ ”4 (Davis v.
U.S. (2011) 564 U.S. 229, 236 (Davis); see People v. Macabeo
(2016) 1 Cal.5th 1206, 1219-1220.)
“The exclusionary rule is . . . a judicially created means of
deterring illegal searches and seizures. [Citation.] As such, the
rule does not ‘proscribe the introduction of illegally seized
evidence in all proceedings or against all persons,’ [citation], but
applies only in contexts ‘where its remedial objectives are
thought most efficaciously served,’ [citation]. Moreover, because
the rule is prudential rather than constitutionally mandated, we
have held it to be applicable only where its deterrence benefits
___________________________________________________________
4 “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.” (U.S. Const., 4th Amend.) The California
Constitution similarly provides: “The right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable seizures and searches may not be violated; and a
warrant may not issue except on probable cause, supported by
oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized.” (Cal. Const.,
art. 1, § 13.)
8
outweigh its ‘substantial social costs.’ ”5 (Pennsylvania Bd. of
Probation and Parole v. Scott (1998) 524 U.S. 357, 363 (Scott).)
The United States Supreme Court has “emphasized repeatedly
that the governments’ use of evidence obtained in violation of the
Fourth Amendment does not itself violate the Constitution.” (Id.
at p. 362.)
“Because the exclusionary rule precludes consideration of
reliable, probative evidence, it imposes significant costs: It
undeniably detracts from the truthfinding process and allows
many who would otherwise be incarcerated to escape the
consequences of their actions. [Citation.] Although we have held
these costs to be worth bearing in certain circumstances, our
cases have repeatedly emphasized that the rule’s ‘costly toll’ upon
truth-seeking and law enforcement objectives presents a high
obstacle for those urging application of the rule.” (Scott, supra,
524 U.S. at pp. 364-365, fn. omitted.)
The United States Supreme Court has “repeatedly rejected
the argument that exclusion is a necessary consequence of a
Fourth Amendment violation.” (Herring v. U.S. (2009) 555 U.S.
135, 141; U.S. v. Leon (1984) 468 U.S. 897, 906 (Leon) [“The
Fourth Amendment contains no provision expressly precluding
the use of evidence obtained in violation of its commands, and an
examination of its origin and purposes makes clear that the use
of fruits of a past unlawful search or seizure ‘work[s] no new
Fourth Amendment wrong’ ”].) “Indeed, exclusion ‘has always
been our last resort, not our first impulse . . . .’ ” (Herring, supra,
555 U.S. at p. 140.)
___________________________________________________________
5 “Real deterrent value is a ‘necessary condition for
exclusion,’ but it is not ‘a sufficient’ one.” (Davis, supra, 564 U.S.
at p. 237, quoting Hudson v. Michigan (2006) 547 U.S. 586, 596.)
9
“Whether the exclusionary sanction is appropriately
imposed in a particular case . . . is ‘an issue separate from the
question whether the Fourth Amendment rights of the party
seeking to invoke the rule were violated by police conduct.’ ”
(Leon, supra, 468 U.S. at p. 906.)
3. Sections 991 and 1538.5
Barajas moved to dismiss under section 991, which
provides: “If the defendant is in custody at the time he appears
before the magistrate for arraignment and, if the public offense is
a misdemeanor to which the defendant has pleaded not guilty,
the magistrate, on motion of counsel for the defendant or the
defendant, shall determine whether there is probable cause to
believe that a public offense has been committed and that the
defendant is guilty thereof.” (§ 991, subd. (a).) Barajas argued in
the trial court that evidence unlawfully obtained (in violation of
the Fourth Amendment) could not be used to establish probable
cause as those words are used in section 991 and, therefore, the
trial court was obligated to determine whether the evidence the
People relied on to establish probable cause was obtained
unlawfully.
The Legislature enacted section 991 in 1980: “(1) to
eliminate groundless [misdemeanor] complaints, and (2) to
codify” In re Walters (1975) 15 Cal. 3d 738 (Walters), which
extended the United States Supreme Court’s holding in Gerstein
v. Pugh (1975) 420 U.S. 103 (Gerstein) that “the Fourth
Amendment requires a judicial determination of probable cause
as a prerequisite to extended restraint of liberty following arrest”
to California misdemeanor defendants. (People v. McGowan
(2015) 242 Cal. App. 4th 377, 383-384; id. at p. 395 (dis. opn. of
Turner, J.) (McGowan).)
10
The People argued that the Fourth Amendment question
Barajas presented could only be litigated on a noticed motion
under section 1538.5. Section 1538.5, subdivision (m), upon
which the People rely for that assertion, states in part: “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.” Section 1538.5 is the
Legislature’s codification of the exclusionary rule.6 (People v.
Belleci (1979) 24 Cal. 3d 879, 887.) “Prior to the adoption of this
statute, a defendant could challenge the use of illegally obtained
evidence in a criminal proceeding through a variety of procedural
mechanisms. Because these former procedures for suppressing
evidence were ‘numerous and confusing,’ section 1538.5 was
adopted to ‘substitute[] a comprehensive plan, prescribing a
single method of raising the issue in particular proceedings and
at particular stages of the proceedings. . . . The purpose of the
legislation is to permit the issue to be raised at an early stage,
and to require the defendant to raise it at that stage.’ ” (People v.
Johnson (2006) 38 Cal. 4th 717, 727, fn. omitted (Johnson).)
___________________________________________________________
6 By its terms, section 1538.5 deals only with the procedure
for invoking the exclusionary rule: “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.” (§ 1538.5, subd.
(n).)
11
“In 1967 the Legislature set up a mechanism for the return
of property or suppression of evidence obtained as the result of a
search or seizure, on certain enumerated grounds, by adding
section 1538.5 to the Penal Code . . . . It provides an orderly and
unified procedure for making pretrial challenges to the admission
of evidence on the ground that it is the product of an
unreasonable search or seizure.” (People v. Williams (1989) 213
Cal. App. 3d 1186, 1190 (Williams).)
4. Section 1538.5 is the Exclusionary Rule
Barajas presents a number of arguments in favor of his
theory that the Fourth Amendment probable cause language (in
the Warrant Clause) requires application of the exclusionary rule
at a section 991 hearing. Barajas frames the issue: “It is not
section 991 that allows courts to excise unlawfully obtained
evidence from their probable cause determination, it is the
Fourth Amendment that requires it.” Barajas contends that the
analogy of section 991 hearings to section 995 hearings compels
us to either read the exclusionary rule into section 991 or read
section 991 into section 1538.5.
Barajas argues that section 1538.5 does not govern the
proceedings here; that objection to the use of evidence obtained as
the result of a Fourth Amendment violation is something a
defendant may do outside the confines of section 1538.5. Barajas
contends that Williams supports his argument that the purpose
of the evidentiary challenge to evidence obtained in violation of
the Fourth Amendment changes the substantive law governing
the challenge. Objecting to the use of the evidence at a section
991 hearing, Barajas asserts, is different than “test[ing] the
unreasonableness of a search or seizure . . . .” as provided for in
section 1538.5, subdivision (m).
12
Barajas does not explain, however, on what procedural or
substantive mechanism one might base an objection if not section
1538.5. He cites no Evidence Code section making evidence
inadmissible because it was obtained via a Fourth Amendment
violation. We are aware of none. “Of course an objection to
evidence may be made,” though to what end and on what grounds
it would be made is unclear, and we are aware of no case that
holds that “a mere objection to the People’s offer of evidence can
be used in the place of a suppression motion under section
1538.5, to litigate a search and seizure issue.” (Williams, supra,
213 Cal.App.3d at p. 1196.) Where evidentiary admissibility or
competence depends entirely on the exclusionary rule and not on
a provision of the Evidence Code, it is of no import if the
challenge is for all purposes or for the limited purpose of
determining probable cause on a section 991 motion.
Even if Barajas could show that some rule other than the
exclusionary rule renders inadmissible evidence obtained via a
Fourth Amendment violation, it is unclear how that would help
him. A probable cause determination need not be based on
admissible evidence. (Walters, supra, 15 Cal.3d at p. 751.) And
“an unlawful arrest is not a bar to trial.” (Id. at p. 753.)
Barajas’s argument tying section 991 to section 995 is no
more persuasive. We agree with Barajas that section 991 is the
misdemeanor analogue to section 995. (See McGowan, supra, 242
Cal.App.4th at p. 382.) And while the two statutes are
analogous, they are not identical. Moreover, we cannot treat
them identically where the Legislature has not afforded them
identical treatment. The Legislature included section 995 in the
text of section 1538.5, and omitted section 991: “The proceedings
provided for in this section, and Sections 871.5, 995, 1238, and
13
1466 shall constitute the sole and exclusive remedies prior to
conviction to test the unreasonableness of a search or
seizure . . . .” (§ 1538.5, subd. (m).)
Besides Ward, we find no authority to support Barajas’s
position. Barajas contends Franks v. Delaware (1978) 438 U.S.
154 held that a probable cause finding may not be based on
illegally obtained evidence. It did not. In Franks, the United
States Supreme Court considered whether “a defendant in a
criminal proceeding ever [has] the right, under the Fourth and
Fourteenth Amendments, subsequent to the ex parte issuance of
a search warrant, to challenge the truthfulness of factual
statements made in an affidavit supporting the warrant.” (Id. at
p. 155.) The Court held that “where the defendant makes a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if
the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing
be held at the defendant’s request.” (Id. at pp. 155-156, italics
added.) Barajas does not explain how a hearing on a noticed
section 1538.5 motion would be constitutionally deficient under
Franks (or, indeed, how it is not exactly the type of hearing
conceived of in Franks).
Barajas also cites People v. Scoma (1969) 71 Cal. 2d 332,
335 (Scoma) in support of his section 991 analogy to section 995.
Barajas characterizes Scoma as holding that a “defendant is held
to answer without reasonable or probable cause within the
meaning of section 995 of the Penal Code when the only
substantial evidence supporting his commitment has been
obtained in violation of the Fourth Amendment.” Scoma dealt
14
with a felony information and a probable cause determination
under section 995, which the Legislature expressly included in
section 1535.5, subdivision (m) as one of the “sole and exclusive
remedies prior to conviction to test the unreasonableness of a
search or seizure . . . .” (Scoma, at p. 335; § 1538.5, subd. (m).)
And Scoma specifically dealt with the interplay between section
995 and section 1538.5, reciting: “Section 1538.5 of the Penal
Code, which deals in general with motions to suppress as
evidence property obtained in violation of the Fourth
Amendment, provides in subdivision (n) that ‘Nothing in this
section shall be construed as altering . . . (v) the procedure and
law relating to a motion made pursuant to Section 995 or the
procedures which may be initiated after the granting or denial of
such a motion.’ It therefore appears that section 995 remains a
proper remedy when the evidence alleged to have been obtained
through illegal means is the only substantial evidence supporting
the commitment.” (Scoma, at p. 335, fn. 2, italics added.)
Moreover, Scoma was decided in 1969. The United States
Supreme Court decided Gerstein (and our Supreme Court
extended it in Walters) six years later. Before Gerstein and
Walters, in-custody misdemeanor defendants were not even
entitled to “a judicial determination of probable cause.” Scoma,
therefore, was decided before the common law underpinnings of
section 991, and did not and could not have accounted for
extension of its holding to in-custody misdemeanor defendants.
One faulty premise underlying all of Barajas’s arguments
here is that there can be some mechanical application of the
exclusionary rule. Barajas refers to evidence as “facially
unlawful” and “unconstitutional.” The evidence is just evidence.
The source of the evidence is significant. And even if the trial
15
court determines that the evidence was obtained in violation of
the Fourth Amendment, the exclusionary rule may or may not
apply. The decision to suppress evidence “involves a balancing of
the need to deter police conduct” resulting in illegal detention
with the state’s legitimate law enforcement interests. (People v.
Rodriguez (2006) 143 Cal. App. 4th 1137, 1142-1143; People v.
Boyer (2006) 38 Cal. 4th 412, 448.) Beyond that balancing, there
are exceptions to the exclusionary rule. For example, “evidence
obtained from a search may be suppressed only if it can be said
that the police knew or should have known that the search was
unconstitutional.” (People v. Hamilton (2002) 102 Cal. App. 4th
1311, 1315 [articulating the good faith exception to the
exclusionary rule].) The Legislature has determined as a policy
matter via section 1538.5 that this analysis is to be done after a
noticed motion and a hearing with live testimony. Barajas gives
us no reason to second guess that determination.
5. Impossibility
As we have noted, section 991 and section 995 are not
identical. “In determining the existence of probable cause [under
section 991], the magistrate shall consider any warrant of arrest
with supporting affidavits, and the sworn complaint together
with any documents or reports incorporated by reference thereto,
which, if based on information and belief, state the basis for such
information, or any other documents of similar reliability. [¶] . . .
If, after examining these documents, the court determines that
there exists probable cause to believe that the defendant has
committed the offense charged in the complaint, it shall set the
matter for trial.” (§ 991, subds. (c) & (d).) Section 995 contains
no such limitation on the type of evidence the trial court can
16
consider when making a probable cause determination in a felony
case.
Section 991 allows the trial court, on a showing of good
cause, to continue the probable cause hearing for up to three
court days. (§ 991, subd. (b).) Theoretically, then, prosecutors
could (as they did here) obtain up to three additional court days
to marshal further documentary evidence to oppose a defendant’s
motion under section 991 to exclude evidence based on the
exclusionary rule. In Johnson, however, the Supreme Court held
that it was “clear that the suppression hearings provided for in
section 1538.5 were intended, and have been understood, to
involve the [live] testimony of investigating officers and other
pertinent witnesses whose credibility is to be determined by the
magistrate judge presiding at the hearing.” (Johnson, supra, 38
Cal.4th at p. 720; see § 1538.5, subd. (c).) Section 991’s
evidentiary constraints are wholly inconsistent with the
Legislature’s requirement that suppression hearings be based on
live testimony.
There is also the matter of section 1538.5’s notice
requirement. In People v. Ciraco (1986) 181 Cal. App. 3d 1142, the
court held that a defendant could make an oral motion under
section 1538.5 at a preliminary hearing with no notice. (Ciraco,
at p. 1145.) In Cox v. Superior Court (1993) 19 Cal. App. 4th 1046,
the court extended Ciraco to strike down local rules “impos[ing] a
noticed motion procedure on suppression motions made during
preliminary hearings.” (Cox, at p. 1051.)
The Legislature responded in 1997 by adding subdivisions
(f)(2) and (f)(3)—creating a noticed motion procedure for
suppression motions made at preliminary hearings—to section
1538.5. (People v. Britton (2001) 91 Cal. App. 4th 1112, 1116; 1997
17
Cal. Legis. Serv. ch. 279 (Sen. Bill No. 123).) The “comprehensive
plan, prescribing a single method of raising” the exclusionary
rule that the Legislature has created (Johnson, supra, 38 Cal.4th
at p. 727) has left no means to challenge evidence obtained
unlawfully absent a noticed motion. This procedure provides a
mechanism, at least in part, for the prosecutor to have present all
necessary evidence and witnesses required for an adequate
determination of the question.7
___________________________________________________________
7 The trial court found good cause to continue the section
991 hearing for three court days “to give [the prosecutor] an
opportunity to either contact, call this officer, get a supplemental
report e-mailed to [the prosecutor] or something to show that
there was probable cause for the detention.” The People provided
the trial court with a supplemental affidavit from Officer
Honrath, as well as a transcript of the audio recording of the
officer’s body camera. One of the factors significant to the trial
court was that “in this case we have a transcript as to the
conversation, and we also have that this is the lapel, just push
and then start recording on it, and the officer states in the
supplemental [affidavit], ‘the first few seconds of my conversation
were not captured on the recording.’ ” “To me,” the trial court
continued, “that’s critical because it’s the first contact of what
was said. We do not have it.”
The trial court necessarily (by operation of section 991) had
access to only documents. The record illustrates, however, why
the trial court would have benefitted from the live testimony
section 1538.5 requires; the trial court was not able to ascertain
the nature of the initial contact between Officer Honrath and
Barajas, to observe Officer Honrath’s demeanor, or to make a
credibility determination. A “motion to suppress evidence on the
ground a search was unconstitutional presents issues as to which
the credibility of witnesses often is of critical significance.”
(Johnson, supra, 38 Cal.4th at p. 731.) “[A]llowing a prosecutor
to oppose a suppression motion with written affidavits in lieu of
18
6. Ward and the Trial Courts
We do not necessarily agree with the Appellate Division’s
conclusion that Ward was incorrect when it was decided.
Amendments to section 1538.5 have changed Ward’s premises.
Section 1538.5 now requires five days’ written notice even to
bring a suppression motion at a preliminary hearing. The
Supreme Court has read section 1538.5 to require live testimony
to decide a suppression hearing. And the United States Supreme
Court decided in County of Riverside v. McLaughlin (1991) 500
U.S. 44, 57 that in jurisdictions (like California) where pretrial
proceedings like arraignments and probable cause
determinations are combined, those proceedings must happen
within 48 hours after arrest. While a determination of the issues
encompassed by section 1538.5 (and a motion to dismiss) may
follow soon thereafter, suppression must be decided on the notice
section 1538.5 requires.
Ward forged a reasonable procedure for its time. That
procedure is no longer attainable, and Ward is no longer good
law. We are nevertheless sympathetic to Barajas’s argument
that, as a practical matter, motion practice under section 1538.5
leaves misdemeanor defendants whose cases may ultimately be
dismissed after a section 1538.5 hearing in custody longer than
they would be if the charged offense was a felony. That
distinction, however, is a matter of trial court calendar
management, and further highlights the differences between
sections 991 and 995 as they relate to section 1538.5. In-custody
misdemeanor defendants may ask for hearings under section
live testimony would be inconsistent with the trial court’s vital
function of assessing the credibility of witnesses.” (Id. at p. 729,
fn. 8.)
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1538.5 on shortened notice, and trial courts remain free to
manage their calendars to accommodate misdemeanor
defendants whose cases may ultimately be dismissed because of
the exclusionary rule.
Under section 991, the magistrate is only required to
determine whether the elements of an offense (here, possession of
the offending item) are present on “any warrant of arrest with
supporting affidavits, and the sworn complaint together with any
documents or reports incorporated by reference thereto . . . .”
(§ 991, subd. (c).) The magistrate may not, by the terms of
section 991, delve into issues relating to the legality or origin of
evidence.
CONCLUSION
Barajas has framed the question here as one of
constitutional import. It is not. There is a Fourth Amendment
right to be free of unreasonable search and seizure. There is no
corresponding constitutional entitlement to the exclusion of
evidence. The exclusionary rule was created judicially at the
federal level and later codified in California. And while it is
obviously necessary that a defendant be able to litigate
suppression of evidence obtained in violation of the Fourth
Amendment, it is not constitutionally or otherwise required (or
even possible) for that to be done at a section 991 hearing. That
the timing and notice requirements of section 1538.5 may be
inconvenient for in-custody misdemeanor defendants does not
deprive those defendants of the benefit of the exclusionary rule,
the purpose of which, incidentally, is not to benefit defendants at
all, but rather to deter law enforcement from Fourth Amendment
violations in the first instance. That purpose and the
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achievement of that end is in no way related or subject to the
timing of a section 991 hearing.
Section 991 is indisputably analogous to section 995 in
many respects. One respect in which it is not, however, is that
section 1538.5—the California codification of the exclusionary
rule—names section 995 and invests the same exclusionary
power in a section 995 motion that it does in a section 1538.5
motion.
Section 991 defines the People’s burden on a misdemeanor
probable cause determination as establishing “probable cause to
believe that a public offense has been committed and that the
defendant is guilty thereof.” (§ 991, subd. (a).) Gerstein and
Walters said that language means that the “People need only
establish a prima facie case of probable cause to detain on sworn
statements or testimony ‘ “sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an
offense.” ’ ” (Walters, supra, 15 Cal.3d at p. 753, quoting Gerstein,
supra, 420 U.S. at p. 111.)
The probable cause determination contemplated by section
991 does not include a determination that evidence was
unlawfully obtained; the sole and exclusive means for a
misdemeanor defendant to secure that determination is a noticed
motion under section 1538.5. The only question for a trial court
to answer on a defendant’s section 991 motion is whether facts
that have not yet been excluded by operation of a noticed motion
under section 1538.5 exist “sufficient to warrant a prudent man
in believing” that “a public offense has been committed and that
the defendant is guilty thereof.” (Gerstein, supra, 420 U.S. at p.
111; § 991, subd. (a).)
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DISPOSITION
The petition is denied.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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