What Is a 1538.5 Motion and When Can You File One?

Apr 25

9 min read

Updated: Sep 6

A 1538.5 motion is a motion under Penal Code section 1538.5 asking a California court to suppress evidence that police obtained through an unlawful search or seizure in violation of the Fourth Amendment. You can file one in any criminal case where physical evidence, observations, or statements flowed from a stop, a detention, an arrest, or a search that was not supported by a warrant or a valid exception. In a felony case the motion can be made at the preliminary hearing or later in superior court; in a misdemeanor case it is made in the trial court before trial. If the motion is granted, the evidence is excluded, and in many drug, weapon, and DUI cases that means the prosecution has no case left.

What does Penal Code 1538.5 actually allow?

Section 1538.5 gives a defendant the right to move for the return of property or the suppression of evidence on the ground that a search or seizure without a warrant was unreasonable, or that a search or seizure with a warrant was unreasonable because the warrant was insufficient on its face, the property seized was not described in it, there was no probable cause for its issuance, or the warrant was executed improperly. The statute covers drugs, guns, and cash, and also an officer's observations during an illegal entry, a blood draw, and statements that are the direct product of an illegal detention or arrest.

In California, the exclusionary rule is applied according to federal constitutional standards. Since Proposition 8 in 1982, article I, section 28 of the California Constitution provides that relevant evidence shall not be excluded in a criminal proceeding except as required by the United States Constitution. The California Supreme Court confirmed in In re Lance W. (1985) 37 Cal.3d 873 that this means evidence is suppressed only when the Fourth Amendment, as interpreted by the United States Supreme Court, requires it. So a 1538.5 motion is argued under federal search and seizure law, even though the procedure is a creature of California statute.

Fruit of the poisonous tree

Suppression is not limited to the item found during the illegal search. Under Wong Sun v. United States (1963) 371 U.S. 471, evidence derived from the illegality is also excluded unless the connection has become sufficiently attenuated, the evidence was discovered through an independent source, or it inevitably would have been discovered by lawful means. If a traffic stop was unlawful, everything that followed can fall: the consent to search, the pills in the center console, the phone seized from the driver, and the statements made after arrest.

Who has the burden of proof on a motion to suppress?

The burden depends on whether there was a warrant. When police searched or seized without a warrant, the search is presumed unreasonable, and the prosecution bears the burden of proving that it fell within a recognized exception. The defense's initial job is simply to establish that the search or seizure occurred without a warrant and to identify what evidence should be suppressed. The California Supreme Court explained in People v. Williams (1999) 20 Cal.4th 119 that the defendant must state the specific grounds for the motion with enough detail to put the prosecution on notice of what it must justify, but once the warrantless nature of the search is shown, the prosecution must call witnesses and prove the exception it relies on.

When police acted under a warrant, the burden shifts to the defense to show why the warrant was invalid or improperly executed. Most 1538.5 litigation in Riverside County and San Bernardino County involves warrantless activity, which is why the motion is so powerful: the officer has to take the stand and explain, under oath and subject to cross-examination, exactly why the stop, the detention, and the search were lawful. If the officer's explanation does not match the report, the body camera footage, or the physical facts, the motion may be granted.

When can you file a 1538.5 motion in a felony case?

In a felony case, section 1538.5 allows the motion to be made at the preliminary hearing. The defense gives the prosecution notice, the magistrate hears the officer's testimony as part of the hearing, and rules on the motion before deciding whether to hold the defendant to answer. If the motion is granted and the remaining evidence does not support probable cause, the charge is dismissed. The prosecution can seek review of that ruling in superior court, and in some circumstances can refile.

If the motion was not made at the preliminary hearing, or was made and denied, the defense can bring it in superior court after the information is filed. Subdivision (i) of the statute governs that special hearing and generally requires written notice to the prosecution at least 10 court days before the hearing. When the motion was already litigated at the preliminary hearing, the superior court hearing is limited in important ways: the court reviews the preliminary hearing transcript and takes additional evidence only if it could not reasonably have been presented at the prelim, and the superior court gives deference to the magistrate's factual findings. When the motion is brought for the first time in superior court, both sides can call witnesses and the judge decides the facts fresh.

When can you file a 1538.5 motion in a misdemeanor case?

Misdemeanor cases have no preliminary hearing, so the motion is made in the trial court before trial. The defense files a written motion with a declaration setting out the facts and the specific grounds, serves the prosecution, and the court sets an evidentiary hearing. DUI, drug possession, and weapon cases are the most frequent settings in Riverside and San Bernardino, because the case usually depends on what an officer found after a traffic stop or pedestrian detention. A motion that is not brought before trial is generally waived unless the defendant did not have an opportunity to bring it earlier.

What happens at the suppression hearing?

The suppression hearing is an evidentiary hearing. The prosecution calls the officers involved in the stop and search, and they testify about what they saw, why they stopped the defendant, what they asked, what the defendant said, and what they found. The defense cross-examines each officer, often with the police report, body camera footage, computer aided dispatch records, and any recorded statements in hand. The defense can call its own witnesses, including the defendant, and the defendant's testimony at a suppression hearing cannot be used by the prosecution in its case in chief at trial on the question of guilt.

After the evidence, both sides argue. The judge decides two things: what actually happened, which is a factual question resolved by credibility, and whether what happened satisfied the Fourth Amendment, which is a legal question. Judges in the Inland Empire frequently rule from the bench. A ruling granting the motion in whole or in part results in an order suppressing the specified evidence. A denial preserves the issue for appeal, and under subdivision (m) of the statute a defendant can plead guilty or no contest after a denied motion and still challenge the ruling on appeal, which is unusual in criminal procedure and makes the motion low risk to bring.

The remedy when a motion is granted

The remedy is exclusion of the evidence, not automatic dismissal. In many cases, though, exclusion leaves the prosecution with nothing, and the prosecutor either moves to dismiss or the court dismisses under Penal Code section 1385. When only some evidence is suppressed, the case may continue on the remaining evidence, and the ruling becomes leverage in plea negotiations.

What are the most common 1538.5 scenarios?

Traffic stops and prolonged detentions

A traffic stop requires reasonable suspicion of a Vehicle Code violation or other criminal activity. The officer's subjective motive does not matter under Whren v. United States (1996) 517 U.S. 806, so a pretext stop for a broken tail light is lawful if the tail light was actually broken. The fight is usually over whether the violation existed and whether the stop was prolonged beyond its purpose. Under Rodriguez v. United States (2015) 575 U.S. 348, once the tasks tied to the traffic infraction are complete, the officer cannot extend the stop to wait for a drug dog or run additional questioning without independent reasonable suspicion. Body camera timestamps often prove that a stop for a lane change turned into a 25 minute fishing expedition. Passengers can challenge the stop as well under Brendlin v. California (2007) 551 U.S. 249.

Consent searches

Police can search without a warrant or probable cause if the person voluntarily consents. Under Schneckloth v. Bustamonte (1973) 412 U.S. 218, voluntariness is judged from the totality of the circumstances, and the prosecution bears the burden of proving it. Consent given after an unlawful detention is tainted. Consent obtained by telling someone the officer will get a warrant anyway, or by a show of force, or from a person who did not have authority over the place searched, may be invalid. The scope of consent matters too: consent to look in a car is not consent to pry open a panel. Cross-examination about who said what, in what order, often reveals that the search began before consent was requested.

Probation and parole searches

Many Riverside and San Bernardino defendants are on probation with a search condition, or on parole or post-release community supervision, which allows searches without a warrant or reasonable suspicion. Those searches are lawful under Samson v. California (2006) 547 U.S. 843 and California case law, but only if the officer knew of the search condition before conducting the search. In People v. Sanders (2003) 31 Cal.4th 318 the California Supreme Court held that a search cannot be justified after the fact by a probation condition the officer discovered later. The search must also be reasonable in scope and not conducted for harassment.

Cell phones and digital data

Under Riley v. California (2014) 573 U.S. 373, police generally need a warrant to search the digital contents of a cell phone, even after a lawful arrest. Officers who scroll through a phone at the scene, or who ask for a passcode and look at messages before obtaining a warrant, expose the resulting evidence to suppression. Carpenter v. United States (2018) extended warrant protection to historical cell site location records obtained from carriers. Digital evidence motions turn on what was seized, when the warrant was obtained, and whether its scope was respected.

What makes a 1538.5 motion succeed or fail?

Successful motions are built on discovery. Before filing, the defense obtains the police report, all body camera and dash camera footage, the dispatch log, any recorded interviews, and the officer's prior testimony if available. The motion identifies precisely which evidence is challenged and the specific defect, as People v. Williams requires. At the hearing, the defense uses timestamps and footage to pin the officer to a sequence of events, then argues the law on that sequence. Motions that fail tend to be generic, filed without reviewing footage, or aimed at searches clearly covered by an exception.

Frequently Asked Questions

Can a 1538.5 motion get my case dismissed?

It can. The motion itself only excludes evidence, but if the excluded evidence is what the prosecution needs to prove the charge, the case is typically dismissed by the prosecutor or by the court under Penal Code section 1385. In drug possession, weapon possession, and many DUI cases, a granted motion effectively ends the prosecution.

Can I file a 1538.5 motion if the police had a warrant?

Yes. Section 1538.5 permits a motion challenging a search with a warrant on the grounds that the warrant was insufficient on its face, lacked probable cause, did not describe the property seized, or was executed in an unreasonable manner. The burden in that situation is on the defense, and the good faith exception may allow the evidence to be used if officers reasonably relied on the warrant.

Do I have to testify at a suppression hearing?

No. Most motions are decided on the officers' testimony and the footage. A defendant may testify on limited issues such as consent, and that testimony cannot be used by the prosecution to prove guilt at trial.

What if my motion is denied?

A denial is preserved for appeal. Under subdivision (m) of Penal Code section 1538.5, a defendant who pleads guilty or no contest after a denied motion can still appeal the search and seizure ruling. In a felony case, a motion denied at the preliminary hearing can be renewed in superior court, although the superior court will generally defer to the magistrate's factual findings unless new evidence is presented.

Gramling Law Group handles motions to suppress and criminal defense throughout Riverside County, San Bernardino County, and the Inland Empire, with flat-fee and limited-scope options that can include drafting and arguing a 1538.5 motion in an existing case. Call (909) 654-4575 or contact us through this website to schedule a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.

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