What is a Motion to Suppress Evidence Hearing?
In California, in a criminal case, defendants have the right to request a hearing called a “motion to suppress evidence” hearing. At that hearing, the prosecution is tasked with proving that there was a warrant or warrant exception which applied for each and every search or seizure which took place in the case or investigation of the case. The prosecutor attempts to prove such typically by having the investigating officer, and/or civilian witnesses, testify and by offering any evidence (such as photos, documents, or videos) which further the goal of proving that a warrant or warrant exception existed. If the prosecutor is unable to prove that a search or seizure was authorized by a warrant or warrant exception, then the judge must “suppress” any evidence which resulted from the illegal search or seizure. To “suppress” evidence means to make that evidence, or any reference to that evidence or testimony about that evidence, inadmissible at trial. “Evidence” in this regard includes intangible things such as observations made by police or description of those observations.
For example, if for no reason at all and without a warrant police simply kicked in the door to your home and saw you snorting cocaine off your kitchen table, most people would understand that that is an illegal search. At a motion to suppress evidence hearing, if the prosecutor was unable to prove the legality of that search, the judge must order the evidence obtained (i.e. the bag of cocaine, and the observation of you snorting cocaine) to be suppressed. If the case were to later go to trial, the police would not be permitted to tell the jury that they saw you snorting cocaine, or that they entered your home and found you in possession of cocaine. They could not show the bag of cocaine to the jury, or the video of police entering the home and finding the cocaine. This is because had the police followed the law they never would have discovered such. In this situation, the prosecutor would likely dismiss the case after the evidence is ordered suppressed by the judge, because the prosecution would be very unlikely to succeed at proving at trial that you possessed cocaine if the cocaine itself, and any reference to it, has been made inadmissible by the granting of the motion to suppress evidence.
These rules stem from the Fourth Amendment of the U.S. Constitution. They’re meant to deter police from committing illegal searches and seizures, because if police do, the person police seek to punish will “get away with it.” Many legal scholars have opined that if society doesn’t maintain such a rule, police will simply do whatever they want, without repercussions, ignoring the law and individuals’ constitutionally protected right to privacy. Do you want to live in a country where police are allowed to enter every home whenever they like, without a warrant, or any reason to suspect wrongdoing?
The Problem That Persists Despite These Protections
It’s all well and good that we in the United States and California have these rights. What is not good is the way the California Supreme Court has interpreted the law is as it relates to the procedures surrounding this type of hearing. In California, if you request a motion to suppress evidence hearing, and the prosecutor asks the court for an extension of the date to have that hearing (i.e. a “continuance”) the law quite literally denies the judge the ability to tell the prosecutor “No.” This remains true even if the prosecutor has no justification at all for being unprepared, or was negligent, and even if the prosecutor has asked for this extension once before, twice before, or even 10,000 times.
There are laws which state clearly that if the prosecutor needs a continuance (i.e. a rescheduling) of such a hearing, they need to file and serve papers two days before the hearing explaining why there is “good cause” to reschedule it. Basically, why the government is blameless in regards to not being prepared. Did someone become sick, injured, incapacitated, or otherwise due to an emergency unable to come to court? Reasons like that. The law also says that if the reason is due to a conflict of schedule with another case, the prosecutor must file a written statement as to which case is in conflict with it and which hearing was set first. The law also says if the government requests a continuance, but has not complied with these procedures, a continuance can still be granted as long as the prosecutor has good cause for failing to comply with the procedures (like the prosecutor found out the problem less than two days ago).
But as it turns out, these rules really mean nothing at all, and don’t have to be followed by the prosecutor at all (even though they do have to be followed by the defense seeking a continuance), because in cases where the prosecutor doesn’t have good cause for a continuance, or good cause for failing to follow the procedure, the law states CLEARLY that the judge still has to grant the prosecutor’s request for a continuance nonetheless, and cannot dismiss the case or grant the defendant’s requested motion if to do so would make it likely that the case would end up being dismissed. So what are these rules for? Absolutely nothing it seems. That is the law we have in this state. Does that seem fair?
In People v. Ferrer (2010) 184 Cal.App.4th 873 the California Court of Appeal held that it is always an abuse of discretion if the judge denies the prosecutor’s request for a continuance of a motion to suppress evidence hearing (even if the prosecutor lacks good cause for a continuance) as long as denying the prosecutor’s request would make it likely that the case would ultimately be dismissed due to insufficient evidence. It’s an “ends justify the means approach.” The government doesn’t want the case dismissed, so the prosecutor is given an infinite number of attempts to be bring their witness to court and be prepared, no matter how blameworthy or negligent the prosecutor is for being unprepared any number of times before.
In People v. Brown (2021) 69 Cal.App.5th. 15 the California Court of Appeal seemed to overrule the above Ferrer rule pronouncing that “If a trial court finds that a request for a continuance of the hearing on a motion to suppress lacks good cause under Penal Code section 1050, the trial court has the authority to deny the requested continuance on that basis, even if this decision may foreseeably result in a dismissal of the prosecution.” But, then the government appealed that case, and won, when the California Supreme Court upheld the Ferrer rule in People v. Brown (2023) 14 Cal.5th 530. That is where we are now. In a State where we have rules, but the government only enforces them against individuals accused of a crime, and never against the government.
Recently, the court granted the prosecutor’s second continuance request of the motion to suppress evidence in my case, and cited Brown as authority that they could do nothing else. The same day, I watched as the same court granted a prosecutor’s ninth request for such a continuance in another lawyer’s case!
Defeating the Counter-Arguments
The law does say that if the defendant has demanded a speedy trial, then the court cannot continue the motion to suppress evidence hearing to a date further than would have been permitted for that trial. However, the reality is that many people do waive their right to a speedy trial, primarily to save money on attorney’s fees. If you wish to demand a “speedy trial” most lawyers will require you pay their trial fee (which is considerably larger than their retainer fee). Trial preparation takes time, and a lawyer’s time costs a lot of money. If you demand a speedy trial, your trial will begin in 30 to 60 days. Which means, if you demand a speedy trial, and your attorney waits until after the decision on the motion to suppress evidence to start preparing for trial, it will be too late. The court can even schedule the motion to be heard the same day as trial. The lawyer will likely therefore want their trial fee to be paid before the motion to suppress evidence is decided. With a time waiver (i.e. not a speedy trial), you can have your motion to suppress evidence hearing (which is probably a much cheaper attorney fee than trial), and if you win, great, you don’t have to pay your lawyer’s trial fee because you’ve won, and they didn’t have to start preparing for trial yet because a trial isn’t even scheduled yet. But, with the Ferrer and Brown rule, if you don’t want the prosecutor to be entitled to infinite continuances of your motion to suppress evidence hearing, you’re going to have to demand a speedy trial and likely pay your attorney’s trial fee, even though the motion may be granted and the case never need a trial as a result. So the practical reality is that this Ferrer and Brown rule makes it such that people who aren’t rich can’t force the court to hear their motion to suppress evidence if the prosecutor keeps requesting continuances. The accused has to demand a speedy trial to have any real power, and that’s an expensive move.
The law also does say that this rule only applies when the case would otherwise be dismissed due to insufficient evidence if the motion were to be granted, or the continuance denied. Well duh, that’s why the defense is moving to suppress the evidence, to get the case dismissed. They should be permitted to do so. That’s why the procedure exists. The exclusion of evidence rule only deters police when those police officers’ cases are ultimately dismissed due to police’s illegal conduct. I have been doing this job since 2012, and I have never seen a court deny the prosecutor’s request for a continuance of a motion to suppress evidence hearing stating that denying the continuance is unlikely to result in dismissal of the case.
In a new approach today, I attempted to argue in my clients DUI case, “How can the prosecutor opine both that suppression of the post-arrest blood test would leave the prosecutor completely unable to prosecute the offense, while simultaneously arguing that the police had probable cause to arrest the defendant before that blood test took place?” Isn’t the prosecutor necessarily arguing that the Ferrer rules applies because they have no case at all without the blood test, but also that they had enough evidence without the blood test to arrest the defendant. If they have “no case” (none) without the blood test, doesn’t that mean they lacked probable cause to arrest? Admittedly, there is a difference between “probable cause” and the proof needed at trial (“proof beyond a reasonable doubt”), but if probable cause existsted then there was at least some circumstantial evidence of guilt … so how can the prosecutor argue honestly in their continuance request that they “could not possibly” proceed without the blood evidence.
What Can We Do About It?
What we need is a law, from the legislature not the courts, with a simple hard cap on the number of continuances a given party can receive (or receive without good cause if they want to be extra accommodating). Write your local legislator/congressperson asking for such. If enough of us do, there’s some hope they’ll listen.
Conclusion
The Fourth Amendment guarantees us the right to be free from illegal searches and seizures, but the current state of California law essentially strips that right away unless you have enough money to pay your attorney’s trial fee just to present a pretrial motion to suppress evidence, or unless the prosecutor agrees to allow the proceedings to take place.
It is still worth it to try to bring a motion to suppress evidence. I have had many cases where the prosecutor chooses to dismiss the case after having to make multiple continuances of the motion to suppress evidence hearing due to the police officer not showing up. I’ve also had plenty of cases where the prosecutor does not seek infinite continuances. Just today, I had a motion to suppress evidence granted because the prosecutor did not request a continuance, and in fact came to court, with the cop, ready to proceed.
My point is, it’s simply unfair that the prosecutor is entitled to an infinite number of continuances of a pretrial motion to suppress evidence hearing unless the defendant demands a speedy trial (which forces defendant’s to pay for legal services they may not actually require). The Ferrer and Brown jurisprudence give the prosecutor complete control over the calendar, and the ability to infinitely delay a defendant’s motion to suppress evidence from being ruled on. Whether a given prosecutor, or prosecutor’s office, actually does infinitely continue these matters is irrelevant, as they should not even have the power and capacity to do so.