Legal Question in Criminal Law in California

Filing a motion to suppress evidence under Penal Code 1538.5 doesn't do anything. To get any benefit, a judge has to GRANT the motion and exclude the evidence from trial.

If the motion is granted, will the case be dismissed? It depends. For instance, in a DUI case where the cops pulled over a case without sufficient reason, the judge would probably throw out all of the evidence -- the blood or breath tests, and even the officer's observations -- which would probably lead to a dismissal.

In other cases, the District Attorney might be able to proceed with some or all of the charges, even if some of the evidence was thrown out.

A 1538.5 motion is a motion to suppress evidence and nothing more. However, what can happen is that as a result of certain evidence being suppressed the District Attorney may not be able to prove their case. This can happen in a variety of ways, such as the actual evidence being suppressed is necessary to convict. Another example is the evidence that is suppressed was necessary to discover subsequent evidence that was necessary to convict and without the original evidence the necessary evidence would not have been discovered. Therefore after a 1538.5 hearing if the defense is successful, an oral motion to dismiss can be brought forth to the court and the judge can grant it or not. However even if the motion is successful the case may continue. There is a rule of evidence called inevitable discovery. Basically inevitable discovery means that if the Judge feels the evidence that is the subject of the 1538.5 motion would have been discovered eventually even if Law Enforcement acted incorrectly to discover it, the Judge may allow the evidence to be used. This can also happen with any subsequent evidence that is discovered as a result of the suppressed evidence. Therefore a 1538.5 motion by itself does not dismiss any thing.

The information provided is general information based on general principles of law and not specific to any particular matter. It should not be considered legal advice and there has been no attorney client relationship established as a result of this communication. There is also no attorney client privilege between the parties. It is impossible to give an accurate answer to a specific situation in a public forum such as this.

Good luck,

Brian McGinity