5. Suppress
The following sample motion to suppress must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
The court won’t suppress evidence taken during a search just because the search was illegal. The defendant must also show standing. Standing is a showing that the defendant had a reasonable expectation of privacy in the place searched.
As examples, a person has a reasonable expectation of privacy in his own home, but he does not have a reasonable expectation of privacy in his neighbor’s home. If the police conduct an illegal search of the neighbor’s home while the defendant is present, the court will probably allow the illegally seized evidence to be used against the defendant, but not against the neighbor.
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TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the Court pursuant to the Fourth Amendment of the United States Constitution and Penal Code §1538.5 for an order suppressing all evidence seized in the above entitled case including, but not limited to all officer observations, witness identifications, and all physical and intangible evidence seized or obtained as a result of search and seizure violations that occurred during the Defendant’s detention, the search of Defendant’s person, the search of Defendant’s vehicle, the search of Defendant’s abode, the search of Defendant’s cell phone, the search of Defendant’s computer equipment, and any other searches relevant to this case.
The motion will be based on this notice of motion, on the attached declaration, the memorandum of points and authorities served and filed herewith, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.
Dated:
__________________
By David Faulkner,
Attorney for Dave Douglass
DECLARATION IN SUPPORT OF MOTION TO SUPPRESS
I, David Faulkner, Attorney for Defendant, declare:
I am informed and believe that the search or searches complained of were without a warrant, or that any warrant was invalid, or that the fruits of any warrant were previously suppressed, or that there are other defects in the search or searches necessitating suppression in this matter.
Dated:
_________________
By David Faulkner,
Attorney for Dave Douglass
POINTS, AUTHORITIES, AND ARGUMENT
The fruits of an unlawful search must be suppressed (see Fourth Amendment, United States Constitution; Badillo v. Superior Court (1956) 46 Cal 2nd 269; Alexander v. Superior Court (1973) 9 Cal 3rd 387; Penal Code § 1538.5.)
The burden is on the Prosecution (People v. Williams (1999) 20 Cal 4th 119, 136).
The court in Wilder v. Superior Court set forth the proper procedure for a suppression motion when the seizure complained of was made without a warrant:
The procedural problem arises from the fact that [the defendant], as the moving party, must necessarily file the first pleading-his motion to suppress evidence. Once [the defendant] has produced evidence to show that the seizure was without a warrant, [the prosecution] bears the burden of proving the only substantive issue at the hearing upon that motion-justification for the warrantless seizure. [citations]
The obvious solution to this problem is a suppression motion pleading procedure whereby [the prosecution] speaks first to the issue upon which it bears the burden of proof and [the defendant] thereafter responds…
…if [the prosecution] fails to justify the seizure, [the defendant] wins his suppression motion whether or not [the defendant] asserts subsequent specific contentions.
(Wilder v. Superior Court (1979) 92 Cal.App.3rd 90)
A warrant is required to search cellular telephone data (Riley v. California, 134 S.Ct. 2473) and stored communications (18 U.S.C. 2701, et. seq.)