What Happens If Charges Are Dropped Before Trial?

If you are charged with a crime in California, you will face legal action from the state. However, not all hope is lost because charges in both misdemeanor and felony cases may be dropped. Only the prosecution side may decide to drop the charges, and the charges may be dropped before or after the prosecution files your case. To find out whether the charges against you have been dropped, contact your criminal defense lawyer or the court.

When The Prosecution Drops Charges

The prosecution may drop a charge for any number of reasons. For example, you may have a defense to the charge, or there may not be enough evidence to secure a guilty plea or verdict. Furthermore, new evidence may clear you of the charge, or evidence may have been obtained improperly and therefore cannot be used by the prosecution. This may occur through warrantless searches and seizures, which violate Fourth Amendment protections. In addition, charges may be dropped through a deal or plea bargain with the prosecution. For example, you may be provided the option of assisting the government in solving other crimes. You may also serve as a witness in other criminal cases.

If the prosecution drops charges against you, this means that the prosecution will not pursue the allegations against you, and the case will not go to trial. Additionally, you will not face penalties for the alleged offense and are no longer required to meet court dates for the dropped charge. If you are in custody, you will be released when the charge is dropped.

When The Alleged Victim Drops Charges

Charges may also be dropped if the victim of the alleged charge refuses to participate in the case. Victims may drop charges for several reasons, including if they fear the accused, they wish to maintain a relationship with the accused, or they determine that the wrong person was identified. However, victims may not retract their statements of blame or substantially alter their story. Victims that do so may be charged with submitting a false police complaint.

If the prosecution determines that you threatened or pressured the complainant to drop the charge, new charges may be filed against you. As such, it is important not to engage in any actions that may make you look guilty. Charges may also be reinstated in the future. This often occurs when the court believes the prosecution will be able to gather more evidence. If your charges are reinstated, the prosecution will refile the case. Accordingly, the case will begin once again.

Dropped Vs. Dismissed Charge

A dropped charge is slightly different from a dismissed charge. Both will stop the government from pursuing a criminal case against you for the charge. However, a dropped charge pertains to a prosecutor deciding to stop the case, while a dismissed charge pertains to a judge deciding to stop the case. Judges will dismiss charges only after it has been filed. If a judge dismisses the charge with prejudice, the prosecution cannot reinstate the charge on the same claims and facts. If a judge dismisses the charge without prejudice, the prosecution can reinstate the charge on the same claims and facts. source

What Does It Mean When a Case is Dismissed?

In some ways they are the same, since each results in a defendant going free. But charges can be dismissed only after such charges have been filed. A charge can be dropped before or after a charge has been filed.

You may need a charge dropped by the prosecutor, or you may need a charge dismissed by the prosecutor, though a court also can dismiss a charge if the prosecutor has made a fundamental legal error in the case.

Why Do Prosecutors Drop Charges?

As for why prosecutors drop charges, that can be due to many factors. Among them is when a victim in a criminal charge — a victim around whom the case is built — decides not to cooperate. The victim may have changed his or her mind, and it’s then pointless for the prosecutor to proceed without more evidence.

Here are five other possible reasons why your attorney might be able to get your charges dropped or dismissed:

• Insufficient evidence. A prosecutor may drop a criminal charge if it is determined that the evidence against the accused isn’t strong enough. Or, perhaps new evidence is found which undercuts the prosecution’s case against the defendant. Your attorney may be able to intercede with the DA and prosecutors when first reviewing police reports and argue that there is no basis for bringing a formal charge against in the first place you due to insufficient evidence. If charges get filed regardless of insufficient evidence, then our attorney can file a motion of case dismissal.
• Fourth Amendment violations. The Fourth Amendment protects citizens against unlawful searches and seizures by police, investigators, and law enforcement. Any evidence illegally obtained can and should be excluded from the case. Prosecutors may drop a criminal charge if it’s determined that some of their evidence was legally obtained and is inadmissible in court. A skilled defense attorney can show if that has happened, perhaps due to police failure to get a proper warrant to search for evidence. Any evidence found without securing a proper warrant is then deemed inadmissible and may lead to a prosecutor dropping or dismissing the criminal charge.
• Procedural issues. Police and prosecutors must follow strict criminal procedures when arresting, booking, interrogating, setting a bail hearing, or engaging in pretrial activities. If a defendant’s rights are violated, these procedural errors may actually be grounds for a case dismissal or sentence reduction. However, these issues can be complicated, so it is important you work with a skilled and knowledgeable defense attorney.
• Lack of resources. The reality is that prosecutors and district attorneys often deal with far too many cases than they are able to handle. As a result, they may be forced to allocate their time and resources to certain priority cases, while dropping or dismissing minor crimes. This is more likely if you’re accused of a minor crime and you have no previous criminal record.
• Willingness to cooperate. If prosecutors find that you are willing to work with authorities to help solve other crimes or help in some other circumstance, they might be convinced by your attorney to work out a deal where they reduce your sentence or drop/dismiss your case altogether.

In the case of Fourth Amendment violations, police can search a person, house or car without a search warrant in some circumstances. If police have reasons to believe an arrested person is carrying a criminal weapon, a search can be made.

Police can also search a vehicle after arresting the driver for driving while intoxicated (DWI). Or police can go into a house without a search warrant in the event of an emergency, such as shots being fired.

A charge may, however, be dropped if it’s found that the suspect was subjected to an illegal stop or there was lack of probable cause to make an arrest. Police must have a reasonable belief, based on clear facts, that an arrest is appropriate. Police cannot arrest you due to a gut feeling or “profiling” your race.

In any event, your defense lawyer can make the case for you that a charge should be dropped by pointing out these reasons to prosecutors.

Why Do Courts and Prosecutors Dismiss Charges?

After charges are filed, prosecutors and sometimes courts may dismiss such charges for some of the same reasons that charges are dropped before being filed. Evidence may be poor, witnesses may be unavailable or illegal tactics may have been used to gather evidence or make arrests.

Again, a criminal defense attorney can advance this process, which is best done early in legal proceedings, or during what’s known as a pretrial negotiation phase.

Before going to court for a trial, a defense lawyer can argue that the prosecution’s case will not prevail at trial and urge the prosecution to dismiss or drop the charge. The prosecution may counter with an offer to reduce the charge. Your attorney then may counter that even the reduced charge will not prevail in court.

What Is a Grand Jury Dismissal?

As for what is a grand jury dismissal, that occurs when a grand jury is convened to consider indictment on a charge, and it’s determined that the case isn’t strong enough. The grand jury then can dismiss or “no-bill” the charge, or the prosecutor can dismiss it. Prosecutors prefer doing that rather than spending time prosecuting a case they cannot win.

Again, grand jury dismissal can occur only before the chance of a grand jury indictment.

What About Reducing a Charge?

You may wonder about the possibility of reducing a charge. This can be done when the evidence isn’t strong enough for a certain charge, but it may be strong enough for a lesser charge.

Prosecutors then may offer a “plea bargain agreement.” That occurs when prosecutors agree to dismiss the original charge if the defendant agrees to plead guilty or no contest to a less severe charge instead.

Neal Davis can guide you and protect your legal rights in plea bargain agreements. He even may advise you to reject such an agreement if the case against the original charge is weak.

Keep in mind that, under Texas law, in most cases the original charge would not be expunged or taken off your record after a plea bargain agreement, even though you did not go to trial on that charge. However, if you faced the original charge and weren’t convicted, it could be expunged from your criminal record. source

How To Convince Prosecutor To Drop Charges? Best Legal Ways

Reasons Why A Prosecutor Might Choose To Drop Charges 

Exculpatory Evidence

In simpler terms, exculpatory evidence is weak or illegal evidence. It is the primary reason why many prosecutors drop charges. Therefore, the evidence prevents the prosecutor from proving their case to a certain level.

Unfortunately, it doesn’t mean that the defendant isn’t guilty of the crime. But the court won’t be able to prove that the accused committed the crime beyond a reasonable doubt. Here are some of the examples of exculpatory evidence:

• Another person who’s not the defendant confesses to the crime.
• There’s proof that the defendant wasn’t at the scene when the crime happened.
• The crime’s footage shows someone else who’s not the defendant committing the crime.

The prosecutor will have to drop the charges whenever the exculpatory evidence is so strong. Since it means the defendant did not commit the alleged crime.

However, some prosecutors only drop the charges when the exculpatory evidence is overwhelmingly strong. It is common for law enforcement doesn’t have any other suspects.

Willingness To Cooperate 

The prosecutor can agree to drop charges if the defendant cooperates in their other case. However, this option is only available in very limited circumstances. Firstly the defendant’s offense needs to be relatively minor.

Secondly, the defendant needs to have enough evidence or information about the other person. Thirdly, the other case needs to be so important than what the defendant is having.

Even though this option is possible most law enforcement aren’t always willing to drop the charges fully.

Instead, they offer the defendant a lighter sentence or a better plea deal. However, you should note that cooperating with law enforcement to flip someone else is quite risky. Always seek legal advice from a criminal defense attorney before making any deal.

Inadequate Resources 

District attorneys and prosecutors usually have too many cases than they can efficiently handle. As a result, this forces them to allocate resources and time to the most important cases. Therefore they end up dismissing or dropping minor charges.

The prosecutor is more likely to dismiss your case if the crime is minor. Alternatively, they’ll also drop it if you do not have a criminal record.

Clerical Or Procedural Errors 

Clerical errors include mistakes and can lead to charge dismissal. The mistakes can appear in the name, height, age, place of crime and residence, etc.

For this reason, all the crucial information about a specific defendant must be correct. The complaint should not have name misspellings, wrong place of crime and residence, etc.

The court will dismiss any complaint with errors. However, the prosecutor can still refile the charges.

On the brighter side, the dismissal gives the defense counsel some time. Therefore they can gather exculpatory evidence or negotiate a plea bargain.

Plus, they can convince the prosecutor not to refile the complaint. On the contrary, most prosecutors do not dismiss serious charges.

If the charges are minor and not worth their time, then the chances of dismissing them are high. If you have an experienced defense attorney, they can help negotiate for dismissal.

Additionally, they can push for a probationary program, which you’ll have to complete for your charges to drop.

Fourth Amendment Violation

The fourth amendment offers protection to citizens. It’s against unlawful seizures and searches by police, investigators, etc.

Therefore its violation by law enforcers will lead to an automatic drop of charges. If there’s any evidence of police violation, it becomes subject to the exclusionary rule.

The defendant’s lawyer will have the power to prevent the evidence from being used in the trial. Therefore the prosecutor will have insufficient evidence to win a conviction. Their only option will be to drop the charges.

According to the U.S constitution, criminal suspects also have rights. Some of their rights that people commonly violate include 4th, 5th, and 6th amendment rights.

Note that it’s up to the defendant to show that a constitutional violation did happen. However, without the help of a good defense attorney, this can be quite tricky.

Plea Bargain 

There are different types of pleas bargains. In some, the prosecutor can drop one or several charges.

The most popular type of plea bargain is the count bargain. Under this plea bargain, a defendant with multiple charges accepts to count a plea bargain.

Meaning the defendant will have to plead guilty to one or more charges. In exchange, the prosecutor will dismiss other charges.

What Is Reducing A Charge?

You might be wondering whether it’s possible to reduce a charge. It’s possible and happens when the evidence isn’t strong for a major charge but applies to a lesser charge. In this case, the prosecutor will offer a “plea bargain agreement.”

The prosecutor then agreed to drop the original charge. But it only happens if the defendant accepts to plead guilty to a lesser charge.

Several attorneys will guide you in protecting your legal rights during the agreement. Therefore always seek an attorney’s advice before making any decision.

Plus, it’s advisable not to accept the agreement if the original case charge is weak. There’s a chance that the court will not delete the original case from the records. It will still happen even after making a plea bargain agreement.

Consequently, you can face the original charge and not get a conviction if the case is weak. Meaning the case might not appear on your criminal record.

Frequently Asked Questions (FAQs)

Can charges be dropped before trial?

Yes, the prosecutor can drop charges before the trial starts. You need to know that most criminal cases don’t get to trial. Plus, many cases end up with a dismissal or plea bargain. Court judges can also summarily dispose of some cases, a popular traffic citation outcome.

What is the difference between dismissal and plea bargain?

The effects of a plea bargain are similar to that of being found guilty in a trial. If you accept a plea of “no contest” or “guilty,” the court records will show that you faced conviction. Sadly, the court judge will sentence you. However, you will avoid all these consequences when it comes to dismissal.

Can a criminal attorney help one get charges dismissed?

Yes, the criminal defense attorney evaluates the case and evidence to determine whether it can file a dismissal motion. Note that there are several grounds for charge dismissal.

What happens when the prosecutor drops charges?

If the prosecutor drops charges, it means you have no case. However, dropping a charge doesn’t mean you aren’t guilty. It ends the current case, and the court won’t acquit or convict you. However, a criminal background check will show the arrest.

What is grand jury dismissal? 

It happens when the grand jury convenes to consider a charge indictment. If it decides that the case is not strong enough, it will dismiss it, or the prosecutor can do that. But most times, the prosecutors prefer dismissing the case. It helps them avoid wasting time prosecuting a case they can’t win.

What is the difference between case dropping and dismissal?

Dropping and dismissing a case is similar in some ways. It’s because, in the end, the defendant will be free.

However, dismissal only happens after charge filling, while a charge dropping happens before and after charge filling. The court will dismiss a charge if the prosecutor has made a significant legal error.

Conclusion 

If you’ve been wondering how to convince prosecutor to drop charges, you are now well equipped with the knowledge. There are several reasons that make a prosecutor drop charges. However, it’s not that easy for them to do this. It means you need an effective lawyer to have your charges dropped.

There are instances when a prosecutor can voluntarily dismiss charges. However, they need serious negotiation and persuasion before they file a dismissal. Plus, your lawyer has the power to file a motion that requests the judge to drop charges.

Most judges refer to the prosecutor and don’t drop cases by themselves. But if the circumstances are perfect, the judge will have no other option but to drop the charges. source

Drop Charges – What this means in a criminal case?

A prosecutor can drop a charge before or after the filing of your criminal case. Further, charges can get dropped in both misdemeanor and felony cases.

If you are in custody at the time a charge is dropped, you must be released.

Though note that a dropped charge does not necessarily mean that the charge will go away forever. A prosecutor can reinstate a charge at some point in the future, usually if they find new evidence against you.

1. What happens if your charges are dropped?

In the criminal justice system, a dropped charge means that the prosecutor handling your case decides to no longer pursue the case against you.

In practice, this means that you no longer have to:

• meet any court dates regarding the dropped charge,
• worry about a criminal trial for the charge, or
• face any potential penalties for the charge.

As stated above, a prosecutor/district attorney can decide to drop your charge either:

1. before they file an official charge against you, or
2. after a charge was filed.

2. Why would a prosecutor decide to drop a charge?

There are several reasons why a prosecutor could decide to drop your criminal charge. Some examples include that:

• the prosecutor does not believe that there is enough evidence to secure a guilty plea or to convince a jury to deliver a guilty verdict,¹
• you have a reliable and effective defense to the charge brought (for example, self-defense in an assault case),
• new, credible evidence (such as DNA evidence) is discovered that clears you of the alleged charge and contradicts witness accounts,
• the prosecutor cuts a deal or plea bargain whereby they drop your charge in return for some act from you (like serving as a witness in another criminal case),
• you may have been wrongly identified (such as out of a police line-up),
• a police officer/law enforcement violated one of your constitutional rights (for example, arrested you without probable cause),
• the judge suppressed the state’s evidence which was found from an illegal search, and the D.A. is left with too weak a case to prosecute,
• pursuing the case would not be in the public interest, and/or
• the “victim” refuses to participate in the case.

The latter situation often arises in the context of domestic violence cases. Although victims can file police reports and communicate their wishes to prosecutors, they cannot on their own decide whether charges will or will not be brought.

It is not uncommon for victims to recant their stories and ask prosecutors to drop the charges. However, D.A.s are suspicious of witnesses’ motives to recant, especially since doing so opens them up to charges for filing a false police report. When victims recant, prosecutors usually presume that:

1. the victim’s family is pressuring the victim to take back their accusations;
2. the victim is frightened that you will instruct your friends to hurt the victim;
3. the victim wants you out of jail to continue earning money for your family; or
4. the victim never intended for the case to progress to charges, and the victim just wanted to “teach you a lesson” by calling the police.

In any case, prosecutors can continue pressing charges without the victim’s cooperation. Though it may be difficult for prosecutors to ultimately win a conviction without the victim’s cooperation.

3. How do you find out if your charge gets dropped?

In most situations, you should consult with your criminal defense attorney to learn if your charges have been dropped.

If you are not represented by a criminal lawyer, you can contact the criminal court where your charges are being brought. A court clerk should be able to inform you of the status of your charges.

In our experience as criminal defense lawyers, we advise that you refrain from calling the police or the prosecuting office to get an update on your charge. This is because you could say something that incriminates yourself.

4. Can a prosecutor reinstate your dropped charge?

In some cases, yes. A prosecutor may, in some instances, reinstate a charge that was previously dropped.

This usually occurs if law enforcement finds new evidence against you regarding the dropped case. If reinstated, a prosecutor refiles the case and it begins anew.

Note that the double jeopardy clause that bars the government from trying you more than once for the same conduct typically does not apply in these cases. This is because since a charge was dropped, there was never a decision made as to your ultimate guilt or innocence.

5. Is dropped the same as “dismissed”?

In general, a dropped and dismissed charge are similar in that the two acts will prevent the government from pursuing a criminal case against you.

However, in cases of a dropped charge:

• a prosecutor decides to stop the case, and
• does so either before or after a charge has been filed.

In cases of a dismissed charge:

• a judge is usually the one to stop a case from advancing, and
• makes this determination after a charge has been filed.

Note that a judge can dismiss a case either with or without prejudice.

A dismissal with prejudice usually means that the government cannot bring another action in the future on the same claims and set of facts.²

A dismissal without prejudice often means that the government can bring a new case in the future on the same claims and facts.³

6. Can charges get dropped because of an illegal search?

Potentially. If the police go outside the bounds of the search warrant – or if the warrant is overbroad – then you can ask the judge to suppress evidence obtained through the illegal search. Insufficient evidence is a common ground for dropping criminal charges.

Police typically need a search warrant to enter and search your home (which usually includes your parked car) or a business. Police also need to “knock and announce” before barging in unless the warrant specifies that they can enter unannounced.

Furthermore, search warrants are supposed to be specific about what items the police should be looking for. Plus if you or anyone else are on the premises, the police should not search your persons unless they have probable cause to believe you are committing an offense or threatening police safety.⁴

6.1. Search warrant grounds

Examples of grounds on which a judge may issue a search warrant are:

• an arrest warrant is already out for the suspect;
• the property sought was stolen;
• the property sought was used to commit a felony or is evidence that a felony occurred (such as a weapon);
• the property is in the possession of someone intending to use it to commit a crime or to conceal it;
• the property sought is child pornography.

In order to get a search warrant, law enforcement must convince the judge there is probable cause that the location specified contains the evidence sought. Note that certain professional records kept by lawyers, doctors, psychologists, and clergy are exempt from search warrants unless they themselves are criminal suspects.⁵

7. Can charges get dropped because the police did not read me my Miranda rights?

If police fail to read you your Miranda rights before subjecting you to custodial interrogation (which is where police question you once you are under arrest), the judge can suppress whatever you say from that point on – even a confession.

Police do not have to read your Miranda rights unless both:

• the police have arrested you; and
• the police are interrogating you.

If police ask you questions before you are arrested, anything you say can be used against you. If police ask you questions after you have been arrested, anything you say can be used against you only if:

• the police read you your Miranda rights; and
• you decide to talk anyway.⁶

7.1. What are my Miranda rights?

• The right to remain silent when police question you since anything you say can be used against you in court.
• The right to consult an attorney before an interrogation and to have them present during an interrogation.
• The right to a court-appointed attorney if you cannot afford private counsel.⁷

Note that you are always advised to exercise your right to remain silent, even during a minor traffic stop after being pulled over. Police are trained to coerce confessions, even from innocent people.

If you go to jail, be sure not to say anything to anyone. Anything you tell other inmates or jail staff can be used against you. Plus your phone calls are recorded, and your mail is read: Both can come in as evidence as well.

8. How soon can my charges get dropped?

Your case can be dropped at any time depending on the circumstances. For example, your case can be dropped:

• right after the arrest if police believe they made a mistake;
• before the arraignment if the D.A. believes there is insufficient evidence to prosecute you (an arraignment is where you get formally charged and enter an initial plea of guilty or not guilty);
• during the pretrial process, if your attorney can convince the D.A. they would not win if your case went to trial;
• during the preliminary hearing (in felony cases), if the judge determines there is insufficient evidence to prosecute you; or
• during the trial, if evidence emerges that exonerates you.

source

Learn more…

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

1538.5 Motion – To Suppress Evidence in a California Criminal Case

In California criminal cases, a motion to suppress evidence is a pretrial motion where you ask the court to exclude evidence because it was obtained by way of an illegal search or seizure. Often called a “suppression motion” or “1538.5 motion,” you make the motion either

1. as part of the preliminary hearing or
2. at a separate pretrial hearing.

If the court grants the motion to suppress evidence (that is, rules in favor of you), then the prosecutor is barred from introducing the evidence in question at trial.¹ This often results in the case being dismissed, or a plea bargain agreement more favorable to you.

Penal Code 1538.5 provides that a court shall suppress evidence that was obtained:

1. Through an unreasonable police search that was done without a search warrant,² OR
2. Through a police search conducted with a warrant, IF
   • The warrant was deficient,
   • The evidence obtained was not the kind described in the warrant,
   • The warrant was issued without probable cause, or
   • The search was carried out in a way that violated the California Constitution or the U.S. Constitution.³

Procedure for a Penal Code 1538.5 motion to suppress evidence

A motion for suppression of evidence is part of pretrial criminal proceedings. This means that in most cases it will be filed and decided before a criminal trial actually begins.⁴

Depending on whether you are charged with a misdemeanor or a felony, your motion to suppress evidence may be addressed:

• At your preliminary hearing, or
• At a pretrial hearing held specifically to address your motion to suppress (this is sometimes called a “suppression hearing”).⁵

A motion to suppress evidence is just one kind of pretrial motion that your criminal defense attorney may file in order to start fighting the criminal charges against you before your trial even begins.

Other pretrial motions include:

• Penal Code 995 PC motions to set aside the information, and
• Pitchess motions to obtain more information on potential police misconduct.

In order to help you better understand how a Penal Code 1538.5 PC motion to suppress works, our California criminal defense attorneys⁶ will address the following:

• 1. What is a 1538.5 motion?
  • 1.1. Legal definition of an “unlawful search or seizure”
  • 1.2. Burden of proof for a motion to suppress
  • 1.3. Legal definition of “reasonable expectation of privacy”
  • 1.4. “Derivative” evidence / fruit of the poisonous tree
• 2. What happens at a motion to suppress evidence hearing?
  • 2.1. Misdemeanor charges
  • 2.2. Felony charges
  • 2.3. Suppression hearings
  • 2.4. The ruling on a motion to suppress evidence
  • 2.5. Proceedings where suppressed evidence is admissible
• 3. Are there other pretrial motions to bring?
  • 3.1. Penal Code 995 PC motions to set aside the information
  • 3.2. Pitchess motions

1. What is a 1538.5 motion?

Simply put, California Penal Code section 1538.5 PC authorizes you to move for

1. the exclusion of any evidence that is the product of an unlawful search and seizure, and/or
2. the return of any property that was illegally seized.⁷

The former result—suppression of illegally-obtained evidence—is a far bigger priority. This is because the prosecution may not have a solid case against you if that evidence is excluded.

1.1. Legal definition of an “unlawful search or seizure”

Penal Code 1538.5 PC sets out the reasons why a search or seizure may be unlawful—and, by extension, why a motion to suppress the evidence obtained in that search may be granted.

These are:

1. The search was performed without a search warrant, and was “unreasonable.”
2. The search was performed with a warrant but was unreasonable, for one of the following reasons:
   1. The warrant was insufficient on its face,
   2. The property or evidence was not of the type described in the warrant,
   3. The warrant was issued without probable cause,
   4. The warrant was executed in a way that violated the California constitution or the U.S. Constitution (for example, the officers conducting the search committed police misconduct), OR
   5. There was any other violation of state or federal constitutional standards.⁸

The rationale behind a Penal Code 1538.5 motion goes back to the Fourth Amendment to the U.S. Constitution⁹—and Article I, Section 13, of the California Constitution.¹⁰ These constitutional sections provide that all citizens have the right to be free from unreasonable searches and seizures.¹¹

Example : Travis has been obeying all traffic laws but is pulled over solely because the police were engaging in racial profiling. During the “pat down” search, police discover cocaine in his pocket and arrest him for California Health and Safety Code 11350 HS drug possession.¹²

As part of the pretrial process, Travis and his attorney file a motion to exclude the cocaine as evidence. They argue that 1) the pat-down search of Travis was done without a warrant in violation of criminal procedure, and 2) the search was unreasonable under the circumstances.

Example : Police suspect George of engaging in theft of power tools, and they search the motel he owns under a warrant that allows them to look for stolen power tools. They find no tools—but they do seize several TV sets that turn out to be stolen. George is charged with receiving stolen property.

The police had a warrant to search George’s motel—but the stolen televisions were not among the things that they had a warrant to search for. Therefore, the seizure was invalid—and George’s motion to suppress evidence with respect to the TV sets is granted.¹³

1.2. Burden of proof for a motion to suppress

The question of who bears the burden of proof—the prosecution or you—on a Penal Code 1538.5 motion to suppress depends on whether or not the search or seizure was conducted without a warrant.¹⁴

Specifically:

1. If the search was conducted without a warrant, the presumption is that it was unreasonable—and the burden is on the prosecutor to prove that it was actually reasonable;¹⁵ BUT
2. If the search was conducted with a warrant, then it is presumed to have been legal—and the burden is on you to prove that it was not.¹⁶

Whichever side bears the burden of proof has to prove their case by a preponderance of the evidence.¹⁷ A “preponderance of the evidence” means that it is more likely than not that the search / seizure was unreasonable.¹⁸

Example : Melissa is being charged with sale or transportation of a controlled substance. She and her lawyer plan to argue that the search warrant under which police officers conducted a search of her home was not specific enough with respect to items that the officers were supposed to be looking for.

Because the search was conducted with a warrant, Melissa will bear the burden of showing that the warrant was so vague that it was invalid on its face—and the officers could not have reasonably believed it was valid.

1.3. Legal definition of “reasonable expectation of privacy”

Before the court will even entertain your 1538.5 motion to suppress evidence, you must prove that you had a “reasonable expectation of privacy” in the place that was searched or the items that were seized.

If you did not have a reasonable expectation of privacy, then

• the search or seizure could not have been illegal, and
• the evidence, therefore, should not be suppressed.¹⁹

As San Francisco criminal defense attorney Neil Shouse²⁰ explains,

“This is an objective standard. Whether or not you personally believe you had a ‘reasonable expectation of privacy’ is irrelevant. The issue is whether you had an objectively reasonable expectation of privacy–that is, one that society would be ready to accept as reasonable.”

Places and property in which you do not have a reasonable expectation of privacy in California law include:

• Abandoned property (for example, something thrown away in a wastebasket),²¹
• A car which you have stolen,²² and
• A car in which you are riding, but in which you have no ownership or other rights.²³

Though you do have a reasonable expectation of privacy in

• Your home,
• Your vehicle,
• The contents of your cellphone,
• A tent or tarp designed to shield the inhabitant from public view,²⁴ and
• If you are a public school student, the personal belongings that you bring to school.²⁵

Example: Rich, a robbery suspect, leaves his hotel room without checking out. The motel owner calls the police, who search the motel room without a warrant and find the robbery victim’s stolen possessions. Rich is arrested and charged.

Rich’s subsequent motion to suppress the evidence from in motel room search is not successful. That is because there is no reasonable expectation of privacy in abandoned property, so he had no reasonable expectation of privacy in the room.²⁶

1.4. “Derivative” evidence / fruit of the poisonous tree

In addition to property or evidence that was seized or discovered during an illegal search—a motion to suppress evidence may also apply to other evidence that is the indirect result of an illegal search.²⁷

This is known as “derivative” evidence.²⁸ The legal theory under which it is also suppressed is known as the “fruit of the poisonous tree” doctrine.²⁹

Example : As part of an investigation into a criminal fraud case, police illegally search a computer without a warrant and discover some incriminating electronic files.

They know they cannot seize the computer and use it as evidence—so instead they issue a subpoena to the criminal defendants for those same electronic files. Though those files cannot be used as evidence against the defendants because the police would not have known about them were it not for the illegal search.³⁰

If you try to argue through a Penal Code 1538.5 motion that certain evidence is “fruit of the poisonous tree” and should be excluded, the prosecution will try to get the evidence admitted anyway by arguing one of three theories:

1. that the possibly tainted evidence is so far removed from the illegal search or seizure that it does not make sense to enforce the exclusionary rule,³¹
2. that the evidence was found through an independent channel, not just through the illegal search,³² or
3. that there is a “reasonably strong probability” that the evidence would have ultimately been discovered even without the illegal search.³³

2. What happens at a motion to suppress evidence hearing?

2.1. Misdemeanor charges

If you face only misdemeanor charges, your criminal defense lawyer may file a 1538.5 motion to suppress evidence as early as your California arraignment.³⁴

As part of the pretrial process, this motion

• must be heard prior to your jury trial, and
• will be argued and ruled on at a special pretrial hearing known as a “suppression hearing.”³⁵

The only exception to this is if you do not discover that evidence against you was illegally obtained until your trial has already begun. In cases like this, you may bring a motion to suppress evidence during the course of the trial.³⁶

2.2. Felony charges

If you face felony charges (or both misdemeanor and felony charges filed in the same case) your lawyer has two options:

1. your lawyer may argue this motion at your preliminary hearing (where he/she will be limited to trying to suppress evidence that the prosecutor intends to introduce at that hearing), or
2. your lawyer may choose to wait and have the motion to suppress handled at a special suppression hearing devoted only to this issue.³⁷

If your motion is heard (and denied) at the preliminary hearing, you also have the right to file it again, and have it heard in a separate suppression hearing.³⁸ However, the evidence at the suppression hearing will be limited to:

1. The transcript of the preliminary hearing, and
2. Any evidence that couldn’t reasonably have been presented at the preliminary hearing.³⁹

2.3. Suppression hearings

The suppression hearing is where both sides have the opportunity to argue their positions on the motion to suppress. It takes place before a judge—not a jury.

The suppression hearing will involve some or all of:

• Testimony from you about the illegal search or seizure,
• Testimony from any witnesses who can help your case,
• Testimony from the police involved in the search or seizure,
• Cross-examination of you and your witnesses by the attorney for the prosecution,
• Cross-examination of the prosecution’s witnesses by your lawyer, and
• Oral arguments by your criminal defense attorney and the prosecuting attorney as to why the motion should be granted or denied.

Penal Code 1538.5 suppression hearings are subject to the rules of the California Evidence Code.⁴⁰ The exception is that hearsay (that is, out-of-court statements that are offered for their truth)—which is not admissible in normal criminal trials—may be admissible at a suppression hearing.⁴¹

2.4. The ruling on a motion to suppress evidence

Once the judge has heard all of the evidence, they must decide whether to exclude or admit the controversial evidence—that is, whether to grant or deny the Penal Code 1538.5 motion.

Depending on the circumstances, the judge may also decide to grant the suppression motion in part—excluding some, but not all, of the evidence in question.

If the motion to suppress evidence is granted, the prosecutor’s case against you may well fall apart. They may choose to

• dismiss the charges, or
• negotiate a generous plea bargain.

But if the prosecutor is determined to press forward with the charges anyway, they may also

• appeal the granting of the motion to suppress evidence,⁴²
• dismiss the charges and file a new complaint,
• seek a grand jury indictment, or
• attempt to reinstate the original complaint.⁴³

If the judge rules against you (denies the motion to suppress), the evidence will remain admissible. At that point, you and your attorney will discuss whether you should

1. plead guilty or nolo contendere (aka, “no contest”) to the charged offense,
2. try to “strike a deal” with the prosecution so that you can plead guilty or nolo contendere (“no contest”) to a reduced charge, or
3. proceed to trial.

If your motion to suppress is not granted, you may file an appeal of the ruling—within 30 days of the ruling.⁴⁴

2.5. Proceedings where suppressed evidence is admissible

The rule that illegally-obtained evidence cannot be admitted in a criminal trial—which is known as the “exclusionary rule”—does not apply to all legal proceedings.⁴⁵

Therefore, even if you win on a motion to suppress evidence, that evidence may still be admissible at

• parole revocation hearings,
• grand jury proceedings, and/or
• civil deportation hearings of immigrants facing deportation for criminal convictions.⁴⁶

3. Are there other pretrial motions to bring?

A Penal Code 1538.5 motion to suppress is only one of several kinds of motions your California criminal defense attorney may choose to file as part of the pretrial process. Others include:

3.1. Penal Code 995 PC motions to set aside the information

A Penal Code 995 PC “motion to set aside the information” is essentially a request for the judge to dismiss one or more of the charges against you.⁴⁷ It makes sense to file this motion if you and your attorney believe that either:

1. Your rights were violated during your preliminary hearing, or
2. There is no probable cause to charge you with the crime.⁴⁸

3.2. Pitchess motions

A California Pitchess motion is a request for information contained in a law enforcement officer’s personnel file.⁴⁹ Criminal defense lawyers typically raise this motion when they believe that you have been the victim of police misconduct.

Pitchess motions are only valid if you can show “good cause” to believe

• that the officer might have engaged in misconduct, and
• that the misconduct is relevant to your defense case.⁵⁰

If the judge believes that you have demonstrated good cause as to why the sought information is material to the case, they will conduct an in-camera Pitchess hearing. An “in-camera” hearing is one that is private rather than conducted in open court like a suppression hearing.

For additional help…

If you or a loved one is in need of help with Penal Code 1538.5 PC motion to suppress evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a consultation in the office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. We also practice personal injury law.

See our related article on Miranda rights in California.

For more information on law and motion in Nevada’s criminal court system, please see our pages on motions to suppress evidence in Nevada criminal cases.

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