PEOPLE v. BROOKS (1979)

The People appeal from an order dismissing charges against Darrell Edward Brooks following the granting of his motion to suppress evidence. The People contend the superior court had no jurisdiction to entertain the motion.

The critical procedural facts are:

(1) Defendant's original motion to suppress made on February 3, 1977, which was made orally and not in writing, invoked Penal Code section 1538.5, subdivision (i), and requested a hearing de novo in the superior court;

(2) The trial court granted the motion to suppress based on the invalidity of the warrant and the action was ordered dismissed;

(3) The People then availed themselves of the relief afforded by Penal Code section 1238, subdivisions (a)(7) and appealed the order of dismissal;

(4) This court, in an unpublished opinion (2 Crim. No. 30315, filed July 19, 1977) reversed, finding that the warrant was in fact valid;

(5) Subsequently, defendant filed a new notice of motion to suppress, this time in writing, setting forth the single ground of a failure to comply with Penal Code section 1531 in execution of the warrant;

(6) The trial court granted this second motion and again dismissed the action pursuant to Penal Code section 1385;

(7) The People have again appealed.

At issue is the authority of the trial court to entertain the second motion to suppress which was based on grounds not litigated in the original suppression hearing.

As we pointed out in People v. Manning, 33 Cal.App.3d 586, 109 Cal.Rptr. 531, the explicit requirements of Penal Code section 1538.5, subdivision (i) mandate a written notice of motion. We further held, however, that while the formal requirement of service of a written notice could be waived by the People, that requirement should not be confused with “ . . . the more substantial requirement as to all suppression motions that they give a Clear and specific indication of the evidence to be suppressed and the Grounds for suppression.” (People v. Manning, supra, at p. 598, 109 Cal.Rptr. at p. 539; emphasis added.)

Here the original suppression hearing proceeded without objection by the People as to the lack of a written motion, hence we imply a waiver of the requirement. That hearing, however, focussed entirely on the validity of the warrant and on no other issue.

The search under consideration was conducted pursuant to a search warrant (now determined to have been validly issued) hence the defendant had the burden of establishing the invalidity of the warrant (Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234; People v. Superior Court, 31 Cal.App.3d 788, 107 Cal.Rptr. 756) as well as the specific grounds of the motion.

Since defendant filed no written notice of motion, we must assume that the grounds for his motion were based on the evidence and the argument which he presented at the hearing. At the original hearing defendant proffered no evidence bearing on the manner in which the warrant was executed. Defendant concedes at this juncture that the issue was never presented in the first hearing.

The underlying purpose of Penal Code section 1538.5 is to accomplish judicial economy by providing a single pretrial opportunity for the parties to litigate the suppression issue followed by an opportunity for meaningful appellate review.

Again quoting from People v. Manning, supra, at p. 601, 109 Cal.Rptr. at pp. 541-542:

. . . As a parallel to the requirement that a defendant state specific grounds for his suppression motion (discussed Supra ), the People have been held on appellate review to the particular “justification” or “theory” urged by them in the trial court. (Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33; Mestas v. Superior Court, supra, 7 Cal.3d 537, 542, 102 Cal.Rptr. 729, 498 P.2d 977; People v. Miller, supra, 7 Cal.3d 219, 227, 101 Cal.Rptr. 860, 496 P.2d 1228; People v. Superior Court (Simon ), 7 Cal.3d 186, 198-199, 101 Cal.Rptr. 837, 496 P.2d 1205; Reinert v. Superior Court, 2 Cal.App.3d 36, 42, 82 Cal.Rptr. 263.)

As to the way in which the defendant's “grounds” or the People's “justification” should or must be raised in the trial court before a reviewable issue is presented, we have indicated that it is clearly preferable for the defendant's grounds to be set forth in his motion. In the nature of things, the People's theory or justification can be determined only from the evidence and argument offered. Even if the trial court has not insisted upon a formal statement of grounds, it is apparent that the scope of issues upon review must be limited to those raised during argument, whether that argument has been oral or in writing. This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions. (People v. Tremayne, supra, 20 Cal.App.3d 1006, 1013, 98 Cal.Rptr. 193, . . .)

Thus it is clear that in the previous appeal defendant could not have urged any other “theory” or grounds for suppression than the one urged in the hearing and accepted by the trial court. Having ultimately been unsuccessful in quashing the warrant and suppressing the evidence on the ground urged, defendant then had no right to seek a second hearing to present an additional “theory” or grounds for suppression.

Thus the so-called “second” motion amounted to a review or reconsideration by the trial court of its previous order granting suppression after that order had been vacated by this court. Penal Code section 1538.5 contains no provision for such a proceeding.

Penal Code section 1538.5, subdivision (m) provides:

“(m) The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.”

That exclusive remedy as pertains to a defendant is found in section 1538.5, subdivision (i) as follows:

“If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, . . . the defendant shall have the right to . . . make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after a notice to the people unless the people are willing to waive a portion of this time. The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing.” (Emphasis added.)

In Madril v. Superior Court, 15 Cal.3d 73, at pp. 77-78, 123 Cal.Rptr. 465, 467, 539 P.2d 33, 35, a unanimous Supreme Court held that “ . . . determination of a 1538.5 motion at a special hearing in the superior court whether in the defendant's or in the People's favor deprives that court of jurisdiction to reconsider the matter unless the People, pursuant to subdivision (j), seek to reopen the matter at trial upon a showing of good cause.”

Additionally, Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 is in point. There the People sought reconsideration of an order granting suppression. The position taken by the People was that even though the search was unreasonable they should be permitted to offer evidence that the material seized was not the fruit of the search. The People offered no explanation why they had not presented such evidence at the original hearing.

The Supreme Court held at page 640, 108 Cal.Rptr. at page 595, 511 P.2d at page 43, that “(a)ll parties faced the obligation of presenting all their testimony and arguments relative to the question of the admissibility of the evidence at that time. If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing.”

Here defendant seeks to avoid the impact of the Lorenzana rationale, which obviously applies to defendants as well as to the People (see Madril v. Superior Court, supra ) and to avail himself of the provisions of Penal Code section 1538.5, subdivision (h) on the grounds that he did not have an opportunity to urge the “second” ground for suppression because of his initial success in the original hearing.

Subdivision (h) permits a defendant to raise the issue of search and seizure During the course of a trial if, prior to trial, “opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion . . . ”

Subdivision (h) clearly envisions One pretrial proceeding. It permits a renewal of the motion to suppress during trial under limited and specific circumstances. We find nothing in the language of the statute authorizing repetitious pretrial motions.

Assuming arguendo that the concept of subdivision (h) could be invoked in this case, the question to be answered would be was defendant at the time of the first hearing aware of the additional grounds which he asserted at the second motion and did he have an opportunity to present that ground?

One of the many difficulties and perhaps the root problem in this case is the loose and imprecise manner in which the suppression motion was presented by defendant. Defendant originally made a “motion to traverse the search warrant” and “motion to declare the entry invalid.” At other times the motion was referred to only as the “motion to quash and traverse the search warrant.”

In any event, it is clear from the record of the proceedings on the original motion that defendant was Aware of the grounds of the invalidity of the entry. He, at one point, asserted it.

It also appears that there was no lack of opportunity at the first hearing for defendant to pursue those grounds. Defendant called and examined the witnesses he chose to present. After calling and examining only the officer who had prepared the affidavit for the search warrant, defendant's counsel said “I have no further witnesses to call in furtherance of the motion.” Thus for reasons of his own, defendant elected to present evidence relating only to the issuance of the warrant and even though the unlawful entry was originally asserted as one of the grounds for the suppression motion, it was voluntarily abandoned by defendant himself through his own choice.

It is true that the trial court, after defendant had rested his case on the motion, stated that since its decision was to quash the warrant any other grounds for suppression were rendered moot. That statement, however, came after defendant had clearly expressed his intent to stand on the issue of the validity of the warrant.

We are convinced that defendant had ample opportunity at the first hearing to present evidence on and argue the issue of the validity of the entry and was well aware of the facts bearing on that issue. He chose not to pursue that course. The opportunity to proceed on the ground of unlawful entry was not foreclosed to defendant by any ruling or order of the trial court.

Following the express holding of Madril v. Superior Court, supra, we find that the trial court lacked jurisdiction to entertain the “second” motion.

The order is reversed and the matter is remanded to the trial court with directions to enter an order denying the motion to suppress.

I concur in the judgment. A defendant seeking to suppress evidence in advance of trial must present and pursue at one time all his asserted grounds for suppression of evidence. He cannot present them serially, and a second pretrial motion is untimely.

Normally, the motion to suppress evidence can only be made in advance of trial. But under the circumstances of this case I believe the defendant will have a right at trial to move to suppress evidence on the ground of illegal entry. At the pretrial motion defense counsel erred in failing to present evidence of asserted illegal entry (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859), and the judge erred in suppressing evidence on an untenable ground (People v. Superior Court (1972) 6 Cal.3d 704, 100 Cal.Rptr. 319, 493 P.2d 1183). In combination, these errors in effect foreclosed defendant from an opportunity to present evidence of illegal entry to support his original motion, thus bringing him within the ambit of Penal Code section 1538.5(h), which allows such a motion to be made during trial if opportunity to make the motion prior to trial did not exist. (Cf. People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262; California v. Krivda (1972) 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45; People v. Krivda (1973) 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457.)

I would, therefore, specifically note in the court's opinion that defendant at his trial may move to suppress evidence on the ground of illegal entry.

COMPTON, Associate Justice.

BEACH, J., concurs.