Newport Beach Criminal Defense Attorney

A Motion to Dismiss for Insufficient Evidence

A motion to dismiss can be helpful in any criminal court case where the police obtained evidence through an illegal search or seizure. When a case hinges predominantly on a piece of evidence that was obtained illegally, a motion to suppress may even mean the difference between a possible conviction and a dismissal.

California Penal Code Section 1538.5

California Penal Code Section 1538.5[1] states that a defendant can file a motion to dismiss in order to have property returned to them or as a way to suppress evidence if such evidence was gathered on any of these grounds:

(A) The search or seizure without a warrant was unreasonable.

(B) The search or seizure with a warrant was unreasonable because any of the following apply:

(i) The warrant is insufficient on its face.

(ii) The property or evidence obtained is not that described in the warrant.

(iii) There was not probable cause for the issuance of the warrant.

(iv) The method of execution of the warrant violated federal or state constitutional standards.

(v) There was any other violation of federal or state constitutional standards.

Having evidence that was obtained illegally excluded from a case is a valuable method for upholding a defendant’s rights, as well as a useful strategy to improve the outcome for the defendant. Many times, the prosecution’s case relies on that pivotal but unlawfully-gathered piece of evidence.

Filing a Motion to Suppress

Filing a motion to suppress will depend on the type of offense you’ve been charged with. In misdemeanor cases, the defendant or their attorney can file at the arraignment or any time prior to the trial. There are some exceptions to this, which is why consulting with an experienced California criminal defense attorney is the best way to get answers involving your specific case.

In felony cases, a defendant can file a motion to suppress at their preliminary hearing or at a special hearing often called a suppression hearing. When the court schedules the hearing to address the motion to suppress, the defendant and prosecutor will have the opportunity to present their case. Testimony from the defendant, witnesses, and police officers may also be heard at that time.

Reasonable Expectation of Privacy

In order for this process to get started and for a search or seizure to be potentially considered unreasonable, the defendant must prove that they had a reasonable expectation of privacy. This is an objective qualification that must be established before the court will move forward with the motion to suppress. If no expectation of privacy existed, then it is impossible for the search or seizure to have been unlawful.

What are the criteria for establishing a reasonable expectation of privacy?

If someone knowingly exposes any potential evidence to the public, it does not fall under the Fourth Amendment’s protections and is, therefore, not considered private[2]. On the other hand, what a person attempts to keep private may be protected.

Generally, abandoned or stolen property or property that belongs to someone else does not establish a reasonable expectation of privacy. If you have a question about whether or not your circumstances involve a reasonable expectation of privacy, speak with a criminal defense lawyer with experience filing motions to suppress.

Elisa Guadan has filed numerous successful motions to suppress, including one that recently resulted in her client’s DUI case being dismissed. Reach out to Guadan Law Group for a free consultation. You can call us toll-free at 855-GUADAN-LAW.

[1] California Legislative Information. CA Penal Code Section 1538.5. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1538.5.

[2] Cornell Law School. Legal Information Institute. Katz v. United States. https://www.law.cornell.edu/supremecourt/text/389/347

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