To suppress my Case my Plan

1538.5

If you face felony charges…or misdemeanor and felony charges filed in the same case…your lawyer has two options:

1. your lawyer may argue this motion at your preliminary hearing (where he/she will be limited to evidence that the prosecutor intends to introduce at that hearing), or
2. your lawyer may choose to wait and simply litigate the issue during a special suppression motion hearing after the preliminary hearing, and during the pretrial conference phase (which means that he/she isn’t bound by the prosecutor’s agenda).³¹

Assuming your motion is heard during the preliminary hearing, if your motion is denied in whole or in part, you are entitled to a "special hearing" on the issue prior to trial.
At this hearing, a new judge will make an independent determination about the legal issues presented. And although the judge is bound by any "factual" determinations that the prior judge made, this rule does not apply if those findings are affected by new evidence that is just being presented.³²
During this "special" hearing, you are limited to arguing evidence that is included in the preliminary hearing transcript and to evidence that has been newly discovered. If your motion is denied, you may appeal within 30 days.³³
Alternatively, you can challenge the judge’s ruling by filing a California Penal Code 995 motion to set aside the information.
Finally, in the event that your attorney had no reasonable basis to know that there was an issue concerning illegally obtained evidence until the time of your trial, your attorney has the right to file a 1538.5 motion during the course of your jury trial.³⁴

4.3. Options for the prosecution

If…during the preliminary hearing…the judge finds that after excluding the illegally obtained evidence there is not enough evidence to "hold the defendant to answer", the prosecutor has several options.
The first is to refile the charges. The second is to seek a grand jury indictment. The third is to move to reinstate the complaint.
However, if the defense’s felony 1538.5 motion to suppress evidence is granted twice, the prosecutor may not refile unless there is newly discovered evidence that was not reasonably available at the time of the motion.³⁵

4.4. Proceedings where suppressed evidence is admissible

The exclusionary rule does not apply to all proceedings but rather only those "where its deterrence benefits outweigh its ‘substantial social costs’".³⁶ Illegally obtained evidence may therefore be admissible during

• parole revocation hearings,
• California sentencing hearings,
• grand jury proceedings, and
• civil deportation hearings.³⁷

Some final thoughts…

Even if your attorney does not win the motion, any testimony that is elicited during the hearing can be used during your trial to impeach the testifying officer’s credibility. This is a common reason to file the motion even if the defense doesn’t necessarily believe that he/she will prevail on it.
When to file and argue a 1538.5 motion to suppress evidence will vary case-by-case. It is a tactical decision that your California criminal defense attorney will discuss with you when the time arises.