Emergency Suppression…
A bit of an outrage from a few years ago. Picture this: you’re in a jury trial defending a client against a charge of driving under the influence. Prior to trial you receive the arresting officer’s report and narrative. You read in the officer’s narrative that the reason he pulled your client over was because he saw your client run a solid red light in violation of Vehicle Code section 21453. That’s a permissible traffic stop, right? No 4th Amendment violation.
The trial is proceeding with the same officer on the witness stand and he testifies that the light my client ran was actually yellow and not red. Whoa bub. Excuse me? My client ran a yellow light? I think I asked the officer with just the right measure of indignance: “uhhh is driving through a yellow light a crime?” It isn’t, of course. I then asked the court while outside the presence of the jury to hold a suppression hearing in the middle of trial (Penal Code section 1538.5). “But wait, a 1538.5 is a pretrial motion. You can’t ask for one in the middle of trial.” Sure you can. Subdivision (h) of section 1538.5 provides that a defendant shall have the right to make a motion to suppress evidence during trial if, prior to trial, the opportunity for the motion did not exist or the defendant was not aware of the grounds for the motion.
The court declined to hold a suppression hearing, the trial proceeded, and the jury found my client guilty of driving under the influence. Because it was a misdemeanor case, the appellate division of the Superior Court handled the appeal and affirmed the judgment. The sole issue on appeal was whether or not the court abused discretion when it refused to hold a suppression hearing in the middle of trial. I think one of the cases that came up was People v. Martinez (1975) 14 Cal.3d 533. Haven’t read it in a while but could be informative if you have the urge to learn about emergency suppression hearings - which you probably do since you clicked. I’m reasonably sure that all parties agreed - Court, DA and Defense - that the officer’s testimony established a 4th Amendment violation. But still, no suppression hearing.
In response to the argument that holding the hearing in the middle of trial would have necessitated an undue consumption of time, which might’ve been made by the People, I’ll respond: nuh-uh. Here’s why. The court had already received the evidence it needed to rule on the Fourth Amendment violation - the officer’s sworn testimony that my client ran a yellow light and that his report was inaccurate in this big fat important way. Ten minutes is all it would have taken the court to excuse the jury, ask the prosecutor if he wished to present any further evidence on 4th Amendment violation, grant the motion to suppress, look at the prosecutor and ask if he had a motion to make, wait for the prosecutor to say “the people move to dismiss for insufficiency of the evidence”, direct the clerk to enter into the minutes the words that the prosecutor just said, invite the jury back into the courtroom, thank them for their service and excuse them (and commend defense counsel for another job well done.) That would’ve been a more efficient use of time than proceeding with the trial, which took another day of court time. Another idea would be… just hear me out for a second… since the 4th Amendment violation was conceded, the prosecutor could’ve just said: I’m not comfortable proceeding with a prosecution based entirely on illegally obtained evidence and for that reason I’m dismissing the case.
The appellate division ruled that this whole thing was my fault because the grounds for the motion existed prior to trial: my client could have told me that the light was yellow. First, that’s conjecture. Second, that’s conjecture. Third, come on. I’m not perfect but come on. I wasn’t appellate counsel but 6DCA should’ve been petitioned to hear it. Maybe they were, I don’t know. Who am I kidding, the 6DCA would’ve affirmed the trial court’s denial of the request for a suppression hearing while at the same time modifying the fine amount to something much higher than what was originally ordered after finding error in its calculation by the trial court. Or they’d reverse on IAC grounds and name me in their published opinion.
What’s the takeaway from all this? Run a suppression motion (or multiple if you’re crafty enough) in every case because you never know if an officer’s testimony about an event will be materially different from what he wrote in his police report.
Call me for a free consultation I guess?
Note: Legal opinions and statutory interpretations are subject to change due to the dynamic nature of case law and judicial rulings. As legal precedents continuously evolve and metastasize, future decisions may alter or refine the interpretation of a statute. Or a statute may be amended or repealed altogether. Therefore, opinions expressed above should not be construed legal advice. Always consult an experienced attorney familiar with the practice area if you have questions about your case.
