How To Use A Motion to Suppress Evidence

When evidence is seized by police pursuant to a search warrant or an arrest or other detention, a criminal defense attorney will look at the factual scenario to determine if the evidence was illegally obtained and in violation of the defendant’s constitutional rights. If there is some basis for this argument, then your attorney may file a motion to suppress evidence under Penal Code 1538.5.

Law enforcement officials are held to a high standard of conduct when arresting a defendant and in seizing evidence. Evidence that can be used against a defendant, called incriminating evidence, may be seized by law enforcement pursuant to a valid search warrant or if incident to a lawful arrest among other circumstances.

There are standards by which law enforcement must adhere to when seizing evidence to be used at trial. The purpose of excluding or suppressing the evidence at the trial of the defendant is to deter unlawful police conduct.

Evidence seized from a defendant might be:

  • Controlled substances,
  • Firearms in connection to a crime,
  • An item allegedly stolen or
  • Financial records.

After a hearing on the motion to suppress, a judge determines if the evidence was legally obtained.

If not, then the evidence is excluded from being used at trial against this particular defendant to prove his/her guilt1.

What Happens at a Motion to Suppress Hearing?


In misdemeanor matters, your criminal defense attorney may file a motion to suppress at the arraignment or schedule a pretrial hearing on the suppression motion. A motion to suppress can be brought at trial only if the illegality was just discovered or could not have been discovered earlier.


Motions to suppress in felony cases can be heard at the preliminary hearing where the prosecution introduces just enough evidence to find that there is probable cause to believe that a crime was committed and that the defendant committed it.

If your attorney chooses to make the motion at the preliminary hearing and loses, your lawyer can re-make the motion at a subsequent hearing but is limited to what is in the preliminary hearing transcript and to any evidence that could not reasonably have been presented at that hearing.

If the motion is not made until after the preliminary hearing, then any incriminating evidence the prosecution intends to introduce may be challenged as having been illegally obtained.

At the motion to suppress, both parties have the opportunity to present evidence and arguments in support of or in opposition to the motion. Testimony is taken from:

  • The arresting officer about how the evidence was obtained by the officer–i.e., plain view, consent by the defendant
  • The defendant
  • Witnesses

Both sides may conduct cross-examination of witnesses followed by oral arguments by both sides as to why the evidence should be suppressed or not.

Unlike a trial, hearsay evidence is admissible at a suppression hearing. Hearsay is an out-of-court statement made in court to prove the truth of the matter asserted2. For example, a witness testifies that he heard another person say that the defendant told him he raped the victim.

Further, the judge decides on the motion based on proof by a preponderance of the evidence. If it is more likely than not that the evidence was obtained illegally, then the motion is granted.

If the motion to suppress is granted, the judge will order the evidence excluded from trial. If this occurs, the prosecution may dismiss the case but subsequently file charges based on other evidence or continue with the prosecution if there is additional incriminating evidence that is likely to lead to a successful prosecution. Another alternative is to offer a plea agreement.

Either the defense or prosecution can appeal the judge’s ruling. The government can file its appeal before trial.

If evidence is suppressed, then the subject property may be returned to the defendant unless it is to be held in lawful detention3. For example, if the excluded evidence was a controlled substance, it will not be returned.

Evidence Subject to Exclusion

Evidence that is subject to exclusion from being presented and heard at trial is varied. These include:

  • Confessions
  • Statements from an illegal wiretap
  • Blood alcohol level results
  • Results of blood tests revealing presence of controlled substances
  • Results of other scientific tests
  • Drugs
  • Financial records
  • Photographs
  • Witness testimony
  • Audio recordings
  • Written statements
  • Weapon used to allegedly commit a crime

Grounds for Exclusion

There are various grounds for a defense attorney to request that certain evidence be excluded from a trial:

Illegal Search and Seizure

All persons have a right to be free from unreasonable searches and seizures under the 4th Amendment to the US Constitution and Article I, Section 13 of the California Constitution, which states:

‘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.’

In other word, a search of your person, car, home or private papers may not be performed by law enforcement unless the officer obtains a search warrant. There are, however, numerous exceptions to the warrant requirement.

You have a reasonable expectation of privacy in your:

  • Home
  • Car
  • Cell phone
  • Computer
  • Hotel or motel room
  • Tent4
  • Personal items brought to public school by students5.

You have no expectation of privacy if the car you were driving was stolen6 or you had abandoned your home, cell phone, computer or tent7. If you left your motel room without paying, any evidence found therein may be used against you as it has also been abandoned.

However, if you consented to a search of your home, car, computer, room, tent or phone, any incriminating evidence secured will be admissible.

Another exception to the warrant requirement is if contraband was found to be in “plain sight:” if so, then it may be seized8. The items must be plainly visible and obviously incriminating.

An additional exception concerns your car. If police have probable cause to believe it contains contraband, they can search it.

If police are detaining you and have probable cause to believe you have weapons in the car, they may search it. If your car is impounded, police can do an inventory search and use any incriminating evidence found within it at your trial.

If arrested, police have the right to search you incident to the arrest if it was lawful, which includes a search in the immediate area of your arrest for possible weapons, although contraband is commonly discovered during the search. If your arrest was not lawful, any evidence seized incident to your arrest may be suppressed9.

Fruits of the Poisonous Tree

There is a legal axiom called “fruit of the poisonous tree”10 that refers to a situation where evidence illegally obtained led to the seizure of other evidence. Because the original search and seizure was tainted or “poisoned,” then any subsequent evidence that is found and seized may be excluded.

However, there are cases where “tainted” evidence is allowed. This applies to evidence that is so far attenuated or removed from the original taint11 or which would have been found inevitably by lawful means regardless of the illegal search12.

It is usually the passage of time that determines if the taint has sufficiently worn off. For instance, a 4-month gap between an illegal search and the discovery of a witness found as a result of the original search was determined to be admissible13.

Illegal or Invalid Arrest

If you were arrested or detained illegally and searched, any evidence seized will be excluded. For instance, if police randomly pulled you over and then arrested you for drunk driving, then evidence of your intoxication while driving may be suppressed. This includes observations of the police officer regarding your demeanor, speech or performance on coordination tests as well as breath test results.

Violation of 5th Amendment--Involuntary confessions

A confession or other statement can be obtained illegally if the defendant was not advised of his or her right to remain silent when law enforcement is about to begin interrogation. Defendants are often tricked into confessing by a promise of lenient treatment or that no charges will be filed at all or that any chance of a reduced charge is waived if the defendant refuses to give a statement now.

Coerced confessions by threats of violence or a brutal beating is an obvious violation of a defendant’s right against self-incrimination.

An involuntary confession may be determined by these factors:

  • Location of the interrogation
  • Length of time in obtaining the confession
  • If Miranda warnings were given
  • If the officers granted the defendant’s request to have an attorney present or to speak to an attorney
  • If the officers granted the defendant’s request to remain silent and stopped the questioning
  • Which party initiated the meeting
  • The defendant’s age and maturity
  • The defendant’s physical and mental health
  • The defendant’s experience with the criminal justice system

Warrant Requirements

Search Warrant

Under the 4th Amendment to the US Constitution and Article 1, Section 13 of the California Constitution, you need a warrant to search a person or property. Of course, there are numerous exceptions to the warrant requirement.

If a search warrant is issued, there are certain requirements for its issuance. If not followed, your defense attorney can challenge the sufficiency of the warrant and have any evidence seized as a result suppressed or excluded.

To obtain a search warrant, police must satisfy 4 requirements:

  • File the warrant in good faith
  • Base the warrant on reliable information showing probable cause to search
  • Have the warrant issued by a neutral and detached magistrate
  • Be sure the warrant states with specificity the place to be searched and the items to be seized

Of course, any incriminating evidence found in plain sight may be seized as well, even if not connected to the subject of the search warrant. Police may also seize evidence if consent was given or it was incident to a valid arrest and the search was within the immediate surroundings for weapons. Police may also search an area if they have reason to believe that evidence would be destroyed or others placed in danger in the time it took to secure a warrant.

There is also the “hot pursuit” exception where police chase a suspect into a dwelling and arrest him. In this case, they may search the dwelling without need of a search warrant.

Defense attorneys often attack search warrants based on:

  • Sufficiency of the warrant
  • The officer’s affidavit to support probable cause for issuing the warrant is based on fabrications or misrepresented the facts
  • Lack of probable cause to issue the warrant
  • The evidence seized was not the type described in the warrant
  • The search exceeded the scope of the warrant.

Courts will, however, validate a warrant and the items seized if the police relied in good faith on the validity of the warrant and the reliance was objectively reasonable.

Arrest Warrant

An arrest warrant is required if the police did not observe you commit the crime. To obtain an arrest warrant, there must be evidence from a grand jury indictment or evidence submitted to a judge that establishes probable cause that the defendant committed the particular crime. The warrant must contain:

  • Name of defendant
  • Offense charged
  • Time it was issued
  • City or county where issued
  • Bail if any
  • Signature and title of the issuing judge
  • Name of the court

An arrest warrant must be executed in a timely fashion. If not, then your defense attorney can move to have your arrest dismissed as well as any evidence seized pursuant to a Serna Motion for violation of your right to a speedy trial14.

If the warrant is for a misdemeanor, you may only be arrested between the hours of 6:00 am and 10:00 pm unless you are arrested in a public place, you are already in custody or the judge states you may be arrested at any time. Felony arrest warrants can be executed at any time. If the arrest and subsequent seizure of evidence for a misdemeanor offense are outside these limits, it will be invalidated.

Miranda Violations

Many people are aware of the Miranda warnings from having watched crime and detective television shows from the early 1960s to the present day and may be able to recite most of them from heart. They are:

  • You have the right to remain silent15
  • Anything you say can and will be used against you in a court of law
  • You have the right to an attorney
  • If you cannot afford an attorney, one will be provided for you

There is also another part to this that is important, especially if the arrestee does not speak English or is less than fluent. It is “do you understand these rights and wish to waive them?”

A defendant must clearly indicate that he/she understands these rights. Silence is not acceptable and police cannot question the defendant in the absence of an unequivocable response.. Also, if the defendant agrees to talk but later changes his mind and says he wants a lawyer, all questioning must immediately cease.

Miranda warnings do not have to be given when a suspect is arrested. It is only when the police want to question or interrogate the individual. If you make an incriminating statement upon arrest and were not asked to make a statement or asked about the offense, it is likely admissible.


How do you file a motion to suppress evidence?

In misdemeanor cases, motions are filed at the arraignment or any time prior to trial unless you found out during the trial that the evidence was illegally obtained. For felonies, motions can be made at the preliminary hearing or a special hearing before trial.

Your attorney will schedule the hearing and give the prosecution sufficient notice that is within the local rules for that court. Statewide rules state it must be served 10 days before the hearing. The motion will contain the facts and circumstances of the seizure and the case law and arguments supporting exclusion.

Can suppressed evidence be introduced again?

It can be used for collateral purposes. Suppressed evidence can be introduced at a preliminary hearing, grand jury hearing, bail hearings, sentencing and parole revocation hearings. These are collateral stages of a criminal proceeding and do not directly relate to the defendant’s guilt or innocence.

It can also be used to impeach the testimony of the defendant at trial or to show the defendant’s state of mind but not offered to prove the guilt of the defendant.

Who has the burden of proof in a motion to suppress hearing?

A warrantless search is presumed illegal so that the prosecution has the burden of proving its legality. If the search was done pursuant to a warrant, then the defense has the burden of proving evidence obtained was seized illegally. The standard of proof is by a preponderance of the evidence.

Can evidence obtained illegally be suppressed?

Evidence obtained in violation of the defendant’s rights cannot be used at a trial to determine the defendant’s guilt. It can be used for other purposes, however, in these situations:

  • Against any other person whose rights were not violated by the illegal search
  • If the government can show that the evidence would have been discovered inevitably and legally anyway
  • if the officers who conducted the search did so in good faith reasonable reliance on the validity of the warrant or statute even if is later declared unconstitutional
  • If the evidence was obtained at a later time and is now so attenuated or removed from the time of the initial illegal search so that suppression would no longer have a deterrent effect
  • To impeach the credibility of the defendant if he/she testifies at trial
  • In a collateral proceeding that does not judge the defendant’s guilt such as a preliminary hearing, sentencing hearing or parole revocation hearing
Get Legal Help Now

Request A Free Consultation 818-351-9555 


  1. California Penal Code 1538.5 []
  2. Hearsay Rule – Evidence Rule 1200 []
  3. Penal Code 1538.5 PC (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.” []
  4. People v. Hughston, (2008) 168 Cal.App.4th 1062, 1070-71. []
  5. In re Lisa G., (2004) 125 Cal.App.4th 801, 808 []
  6. People v. Carter, (2005) 36 Cal.4th 1114, 1141 []
  7. People v. Parson, (2008) 44 Cal.4th 332, 345. []
  8. Horton v. California, 496 U.S. 128 (1990). []
  9. United States v. Leon, 468 U.S. 897 (1984). []
  10. Wong Sun v. United States. 371 U.S. 471 (83 S.Ct. 407, 9 L.Ed.2d 441 []
  11. United States v. Ceccolini 542 F. 2d 136 []
  12. People v. Superior Court (Tunch), (1978) 80 Cal.App.3d 665, 680-681 []
  13. See – United States v. Ceccolini, footnote 11 []
  14. Serna v. Superior Court (1985) 40 Cal.3d 239 , 219 Cal.Rptr. 420; 707 P.2d 793 []
  15. Miranda v. Arizona, 384 U.S. 436 (1966). []